2. Types of remedies, enforcement, investigating and punishing false publicity/propaganda Unfair Commercia Practices (UCP) Control System Administrative Judicial Self-regulation Antitrust Authority “AGCM” Ordinary Courts Advertising Self-regulation Jury 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

3. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM 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. Roles and Targets 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

4. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Enforcability 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

5. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Authority Bodies The Jury The Review Board 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

6. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury The Jury Examines the marketing communication submitted to it and judges it according to the provisions of the Code. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

7. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury The Review Board 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

8. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Activity 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

9. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Investigation 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

10. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Decision 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

11. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Desist Order 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

12. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Opposition Proceeding 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. 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. 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

13. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-Regulation Control System: Jury Publication 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. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

14. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM UCP Figures Since January 2008, the AGCM: ① initiated about 500 FORMAL investigations; ② adopted about 430 official decisions (for both misleading and aggressive commercial practices); ③ imposed fines for a total amount of more than € 67 MILLION; ④ collected about 15,000 complaints (mainly from Call Center); ⑤ sent about 4,000 letters to communicate the decision to file the case; ⑥ adopted about 80 moral suasion decisions and about 20 decisions accepting commitments. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

15. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM Most involved sectors Telecommunications ① Tele-selling and unsolicited supplies; ② Onerous or disproportionate non-contractual barriers imposed where a consumer wishes to exercise rights under the contract; ③ Subscriptions to ringtones and wallpaper services for mobile phones; ④ Services provided through premium rate numbers; ⑤ Internet in mobility service; ⑥ Misleading advertising (fixed/mobile/internet offers); ⑦ Hidden advertising 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

16. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM Most involved sectors Foodstuffs and Transport ① Quality certifications; ② Beneficial properties of products (“healthy claims”); ③ Rebates; ④ Effectiveness of cosmetics; ⑤ Large retailers’ advertising campaigns; ⑥ Air/Rail/Ferry promotional fares and related advertising campaigns (including on-line purchase) 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

17. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM Most involved sectors Banking and insurance ① Commission on the highest debit balance; ② Mortgage portability; ③ Distance marketing of financial and insurance services; ④ Consumer credit; ⑤ Risk assessment certificate 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

18. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM Most involved sectors Services ① Education; ② Telemarketing and retail sales; ③ False job offers; ④ Tourism; ⑤ Entertainment, lotteries and prize games 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

19. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Administrative Control System: AGCM Most involved sectors Energy and Industry ① Unsolicited supply of gas / electricity; ② Fixed price offers 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

20. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Judicial Control System: Ordinary Courts Most involved sectors 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 anti- cellulite and anti-wrinkles products. 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

21. Types of remedies, enforcement, investigating and punishing false publicity/propaganda UCP Self-regulation Control System: Jury (IAP web-site) 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

22. 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 Types of remedies, enforcement, investigating and punishing false publicity/propaganda 1.Unfair Commercial Practices UCP Control System 2.Case Law 3.Conclusions

23. Thank you Guido Foglia guido.foglia@nctm.it Combating Illegal Publicity/Propaganda Behaviour of Businesses

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