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Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
Unfair Commercia Practices (UCP) Control System
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
Administrative
Judicial
Antitrust
Authority
“AGCM”
Self-regulation
Ordinary
Courts
Advertising
Self-regulation Jury
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
Roles and Targets
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
After the adoption of Legislative Decrees No. 145/2007 and
No. 146/2007, the Authority is now also responsible for
tackling unfair commercial practices (“UCP”).
The Agcm’s decisional practice on misleading and
comparative advertisement (pursuant to the Italian Law
applicable before the adoption of Directive No. 29/2005/EC)
can be considered as an important ENFORCEMENT
ADVANTAGE especially in order to tackle misleading
commercial practices and omissions.
In addition, countering UCPs also promotes fair competition
in the markets involved. Therefore, the Agcm may benefit of
important synergies between competition policy and
consumer protection.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Enforcability
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
① The Code of Marketing Communication is binding for
advertisers, agencies, advertising and marketing consultants,
media of any kind, and for anyone who has accepted the
Code directly or through membership in an association, or by
underwriting a contract pertaining to the execution of
marketing communication
② Signatories undertake to observe the Code and its
Regulations and to ensure compliance by their members, to
efficiently disseminate the rulings of the Jury and to adopt
appropriate measures towards members who fail to comply
with or repeatedly disregard the Jury's decisions.
③ To more effectively ensure compliance with the decisions of
the Jury, signatories undertake to ensure that their members
and associates shall include a special clause in their
contracts specifying acceptance of the provisions of the
Code, its Regulations and the rulings of the Jury including
publication of the latter, as well as acceptance of final desist
orders issued by the Review Board.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Authority Bodies
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
The Jury
The Review Board
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
The Jury
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
Examines
the
marketing
communication submitted to it and
judges it according to the provisions
of the Code.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
The Review Board
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
① Autonomously submits to the Jury any marketing
communications that has been reported to it or that it believes
to be non-compliant with the provisions of the Code
safeguarding consumer interests or marketing communication
in general;
② provides non binding opinion on request of the President of
the Jury; may request amendments to any planned marketing
communication that appears to breach the provisions of the
Code;
③ issues desist orders;
④ provides a copy advice, on the request of interested parties
Parties to whom a copy advice has been issued shall not exploit
the said opinion for commercial purposes.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Activity
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
Anyone who believes he or she has suffered prejudice from
marketing communication activities contrary to the Code
may request the intervention of the Jury against those who,
having accepted the Code in one of the forms set out in the
preliminary and general rules, have undertaken activities
alleged to have caused damage to the petitioner.
Individual consumers and consumer rights associations
may submit complaints free of charge to the Review Board
regarding marketing communication allegedly breaching the
rules of the Code that safeguard the general interests of the
public.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Investigation
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
The Jury and Review Board can, at any time,
ask the marketer to supply documentation in
support of the truthfulness of the data,
descriptions, statements, illustrations or
testimonials used. The Jury and Review
Board may avail themselves of experts to
evaluate the documentation thus produced.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Decision
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
If the decision establishes that the marketing
communication does not comply with the
provisions of the self-regulatory code, the
Jury orders the offending parties to refrain
from using it within the term set forth in the
relevant Regulations.
The Jury's decisions are final.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Desist Order
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
Should any marketing communication submitted for
examination appear to clearly violate one or more
articles of the self-regulatory code, the President of
the Review Board may order the marketer to desist
from publishing it.
Each party has up to 10 days to challenge the
decision with the Review Board.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Opposition Proceeding
1.
2.
3.
Unfair
Commercial
Practices
UCP Control
System
The President of the Review Board, having considered the facts and reasons
put forward by the challenging parties, may decide, after listening to the
Board's opinion, that the desist order should be withdrawn and the case
dismissed, with the parties being advised accordingly.
Case Law
Conversely, should the Review Board consider the reasons for opposition to
be unconvincing, the case is handed over to the President of the Jury
together with the relevant grounds.
Conclusions
Should the President of the Jury also deem the reasons for opposition to be
unconvincing, the order becomes final.
If the President of the Jury believes that the Jury should decide, the parties
are called to appear before the Jury for discussions; in such cases the desist
order is revoked.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-Regulation Control System: Jury
Publication
1.
Unfair
Commercial
Practices
UCP Control
System
2.
Case Law
3.
Conclusions
Decisions are published, posted on the website and
filed in the database of the IAP with the names of the
parties concerned.
The Jury may order excerpts of decisions to be
disclosed to the public by IAP, including the name of
the parties under the terms and in the media deemed
to be appropriate.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
UCP Figures
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
Since January 2008, the AGCM:
①initiated about 500 FORMAL investigations;
②adopted about 430 official decisions (for both
misleading and aggressive commercial practices);
③imposed fines for a total amount of more than € 67
MILLION;
④collected about 15,000 complaints (mainly from Call
Center);
⑤sent about 4,000 letters to communicate the decision
to file the case;
⑥adopted about 80 moral suasion decisions and about
20 decisions accepting commitments.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
Most involved sectors
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
Telecommunications
①Tele-selling and unsolicited supplies;
②Onerous or disproportionate non-contractual
barriers imposed where a consumer wishes to
exercise rights under the contract;
③Subscriptions to ringtones and wallpaper
services for mobile phones;
④Services provided through premium rate
numbers;
⑤Internet in mobility service;
⑥Misleading advertising (fixed/mobile/internet
offers);
⑦Hidden advertising
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
Most involved sectors
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
Foodstuffs and Transport
①Quality certifications;
②Beneficial properties of products (“healthy
claims”);
③Rebates;
④Effectiveness of cosmetics;
⑤Large retailers’ advertising campaigns;
⑥Air/Rail/Ferry promotional fares and related
advertising campaigns
(including
on-line
purchase)
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
Most involved sectors
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
Banking and insurance
①Commission on the highest debit balance;
②Mortgage portability;
③Distance marketing of financial and insurance
services;
④Consumer credit;
⑤Risk assessment certificate
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
Most involved sectors
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
Services
①Education;
②Telemarketing and retail sales;
③False job offers;
④Tourism;
⑤Entertainment, lotteries and prize games
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Administrative Control System: AGCM
Most involved sectors
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
Energy and Industry
①Unsolicited supply of gas / electricity;
②Fixed price offers
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Judicial Control System: Ordinary Courts
Most involved sectors
1.
2.
3.
Unfair
Commercial
Practices UCP
Control
System
Case Law
Conclusions
Threatened Class Actions
① against a number of tour operators for misleading
holiday special offers. The class action is based on a
Supreme Court’s judgment in favor of a couple of
tourists, and seeks damages for false representation;
① against L'Oreal for false advertisement. L'Oreal
has been fined by the Antitrust Authority with a fine of
270thousand euros for misleading advertising of anticellulite and anti-wrinkles products.
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
UCP Self-regulation Control System: Jury
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
(IAP web-site)
Types of remedies, enforcement, investigating and punishing
false publicity/propaganda
1.
Unfair
Commercial
Practices UCP
Control
System
2.
Case Law
3.
Conclusions
① The EP resolution issued in January
2009 defined Directive 29/2005/EC as a
“cornerstone” of consumer protection
policy and these first years of
enforcement in Italy appears to confirm
the huge potential of this discipline;
② Consumers and Market players appear
to be provided with a complete bunch of
remedies against Unfair Commercial
Practices;
③ The ex-officio investigations play a
central role in regulating the advertising
market
Combating Illegal Publicity/Propaganda Behaviour of
Businesses
Thank you
Guido Foglia
[email protected]
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