The Italian Competition Authority qualifies the buy and share scheme undertaken by the Italian company Oobs S.r.l.s. as unfair commercial practice and orders the company to stop any similar activity
Buy and share schemes are capable of attracting a vast array of purchases – actually mere reservations of goods– and can only function if they continuously and rapidly expand, conditions which, however, are extremely peculiar and uncertain and highlight the scheme’s intrinsically unfair nature, capable of deceiving a growing number of consumers.

On October 29, 2019, the Italian Competition Authority (“AGCM”) adopted an interim measure against Oobs S.r.l.s., a company operating in the online sales sector through the website shoppati.it for the adoption of a “buy and share” scheme.

The contested practice consisted in the on-line offer of technological goods to consumers at a particularly discounted price when, in reality, the payment of the initial amount requested as a reservation fee entailed entering into a contractual scheme under which obtaining the good was subject to additional, random and complex, conditions. Specifically, through the abovementioned website, the company offered technological goods both through direct sales or through a buy and share scheme. The latter required the consumer to pay an initial fee to reserve the good and to wait for other consumers to proceed to make the same reservation. The existence of other consumers’ reservations and their consequential subscription to a waiting list, creating a “purchase group”, represented mandatory conditions to obtain the good at a discounted price. Furthermore, the abovementioned contractual scheme also presented various obstacles to the exercise of consumers’ contractual rights and, specifically, the right of withdrawal.

Pursuant to the AGCM’s reasoning, the abovementioned scheme constitutes an infringement of Articles 20, 21, 22, 24 and 25 of the Italian Consumers’ Code (Legislative Decree No. 206/2005) in light of the fact that it is likely to deceive and/or unduly affect the average consumer’s freedom of choice in relation to the online purchase of technological goods and the exercise of his/her contractual rights. Specifically, the AGCM argued that the difference between the offer/reservation price (i.e., “shopped price”) and the “full price” of the goods was not adequately clarified to the consumer. For this reason, the consumer was compelled to choose to reserve the good based on a seriously incomplete and omissive representation, which did not allow him/her to fully comprehend the distinctive contractual conditions and constraints he/she was entering into. Indeed, the company did not provide any information on the criteria to define how such purchase groups functioned, nor on the methods and runtime of the waiting lists. Furthermore, the AGCM also noticed that consumers’ rights of withdrawal and to a refund were hindered by specific methods imposed by the company to exercise said rights. For example, a consumer could exercise his/her right of withdrawal exclusively via certified PEC e-mail address.

In light of the above, the AGCM has ordered Oobs S.r.l.s. to:

  1. Stop every activity directed at the sale of goods at a particularly discounted price through the payment of an initial sum as a reservation fee and conditioned by the subsequent enlisting of other consumers to a “purchase group”;
  2. Stop any activity directed at the sale of goods through the website it which are presented as available but, in fact, are not ready to be shipped.

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