By Alessandro Pala and Elena Martini
With a decision dated 17 November 2020, the Italian Competition Authority (ICA) fined the Companies HP Inc and HP Italy (collectively HP) 10 million Euros for misleading and aggressive commercial practices against consumers, in relation to the sale of some printer models in Italy.
The ICA contested two unfair commercial practices. The first practice concerned the withholding of information regarding the limitations on the use of non-genuine printer cartridges. In particular, HP only warned that the use of non-genuine cartridges could decrease the printing quality, whereas the use of such cartridges were prevented by the printer using an authentication system connected with an electronic circuit on the cartridge, capable of detecting a non-genuine cartridge, and disabling the printer from functioning in its presence.
With reference to this practice, the ICA ascertained the violation of Articles 20, 21 and 22 of the Italian Consumer Code concerning misleading commercial practices, that is those practices capable of deceiving the consumers on essential aspects of the contract (such as the features of a product or the consumers’ rights) convincing them to make a commercial decision that they would not otherwise have made. In particular, the ICA considered the abovementioned conducts were suitable to induce the consumers to purchase HP printers without enabling them to make an informed decision.
In this regard, the ICA did not accept HP’s arguments, according to which the limitations on the use of non-genuine cartridges were necessary to protect HP’s patents, basically qualifying the authentication chips as technological protection measures. The ICA considered such an argument irrelevant, since the proceedings brought before it concerned only the accuracy of the information provided by HP to the consumers regarding the features and the limitations on the use of the HP printers.
The second practice concerned the recording of the consumption data and of data regarding the use of genuine and non-genuine cartridges, without providing prior information to the consumers, in order to refuse the free assistance for the printers that had non-original cartridges inserted. Moreover, HP refused to acknowledge the existence of a causal link between the printers’ malfunction and the use of non-original cartridges, in respect of the assistance requests from the retailers who provided the legal guarantee of conformity to their clients. In this regard, the ICA specified that, contrary to what HP argued, the findings of the proceedings did not reveal that the consumer had given their consent to such data collection.
As for this practice, therefore, the ICA contested the violation of articles 20, 24 and 25 of the Italian Consumer Code, concerning the aggressive practices, i.e. commercial practices that restrict the consumers’ contractual freedom through harassment, coercion or undue influence.
Finally, in light of the severity of the infringements and the damage caused to the consumers, the ICA issued an administrative fine for the maximum allowed for each practice, for a total amount of 10 million Euros. In addition, the ICA imposed on HP the publication of a corrective statement on the companies’ web pages and in “Il Corriere della Sera” and “Il Sole 24 Ore” newspapers.