ACM still has a preference for informal enforcement of the consumer rules, but is increasingly inclined to impose fines. Remarkably, the amount of the fines involved are increasing continuously. ACM has, however, not been as successful in court. The District Court of Rotterdam, for instance, annulled the fine imposed on a fashion webshop on the grounds that ACM had failed to warn it in the same manner as other shops. It is not yet known which sectors will be ACM’s top priority this year. ACM will in any event focus (again) on the travel sector, premium number providers and telemarketers. The companies in question should be aware of ACM's enforcement practices.
Fines imposed by ACM
ACM continues to focus on the travel sector (see also our earlier blog). It recently fined holiday homes website Belvilla EUR 325,000 for providing incorrect price information. ACM proved that it was impossible to book a holiday home on that website at the "as-from" price stated. Consumers were also misled about the unavoidable costs. Furthermore, ACM recently warned about the practices of villa booking site De Reisplanner. In ACM’s opinion, De Reisplanner did not clearly state what villas were offered and how the booking process worked. ACM even advised consumers not to pay invoices they receive.
Another remarkable decision of ACM is the fine of EUR 450,000 that it imposed on Volkswagen for misleading consumers about the “test-cheating diesel cars”. This is the highest amount ACM could impose for that violation according to its fining policy. Together with the European Commission and other national supervisory authorities, ACM has urged Volkswagen to make haste with informing the owners of the cars in question of the situation and how they can have their cars repaired free of charge.
ACM also investigated this past year whether the invoices from power companies were sufficiently understandable, verifiable and traceable (see also our earlier blog). ACM concluded that that was indeed the case at most power companies. It only imposed an order subject to an incremental penalty on suppliers Fenor and Robin Energie. Both companies were urged to have their affairs in order by 2 February 2018. They will otherwise forfeit a penalty of EUR 1,000 per day subject to a maximum of EUR 50,000.
Because ACM often enforces consumer cases informally, its decisions are relatively rarely reviewed by administrative courts. One of the rare judgments in 2017 came from the District Court of Rotterdam and demonstrates that it can be worthwhile to litigate a fine imposed by ACM. The Court set aside the fine imposed on Bever for inter alia misinforming consumers about their right to repayment. In the Court’s ruling, ACM had acted in breach of the equality principle by failing to warn Bever beforehand, even though ACM had previously warned two trade associations and 40 other fashion webshops about this issue. The appeal filed by Shoebaloo was however less successful, since ACM had previously warned Shoebaloo. It was of no avail to Shoebaloo that ACM had sent that warning to the webshop’s customer service department and that it had therefore never reached the management board.
The Geoblocking Regulation has recently been adopted and will enter into force on 3 December 2018. The objective of the Regulation is to combat unilateral geoblocking measures and geodiscrimination (see also our earlier blog), such as preventing consumers from purchasing products or services in another Member State. The Geoblocking Regulation obligates Member States to designate one or more authorities that will supervise compliance with the geoblocking rules. That authority must also be authorised to impose fines. In the government’s opinion, ACM is the most appropriate candidate to assume that role in the Netherlands. ACM’s tasks and instruments will therefore be expanded (e.g. with respect to assisting consumers and supervising compliance with the geoblocking rules). We will provide further information on this point in the near future.
ACM has launched a number of information campaigns for consumers. In the past, it already informed consumers that they can save on their healthcare insurance and electricity invoices. In ACM’s opinion too many consumers are still wary of switching providers. ACM also warned consumers about impulse purchases via social media. It fears that consumers who purchase products via social media platforms such as Facebook or Instagram are often unable to later on verify where they placed their orders. That makes it difficult to contact the seller in the event of problems with an order.
ACM has now identified a number of concerns for 2018. It has announced, for instance, that it will take enforcement measures against companies that fail to comply with the (new) rules on the use of premium numbers. ACM recently published new policy rules on the allocation and withdrawal of 090x and 18xy numbers, stating that it will more strictly assess whether or not a service is eligible for a premium number. It will also more strictly assess whether the number holders comply with the rules.
ACM has furthermore announced that it is considering taking action against companies that fail to comply with the rules regarding telesales. ACM appears to be focusing in particular on telesales companies that call consumers even though they are registered in the Do Not Call Registry or have exercised their right of objection. ACM has already warned 16 companies and the Data and Marketing Trade Association. Companies operating in these areas should therefore beware of ACM!
Detailed information on dawn raids by ACM can be found at invalacm.nl