Case C-832/26, Autostrade per l'Italia – full toll for a motorway under repair
A motorway operator charges a toll for a road. When the road is worse than it should be, the toll stays the same. Italy’s competition authority called that an unfair commercial practice, and the Consiglio di Stato has asked whether it can be.
Facts
Autostrade per l’Italia SpA is appealing before the Consiglio di Stato against a decision of the Autorità Garante della Concorrenza e del Mercato (AGCM). The authority found, as the referring court describes its reasoning, that where the consumer “does not have any effective alternatives”, failing to reduce the contractually agreed consideration for a service, in the event of a shortfall in quality attributable to the trader’s failure to comply with the obligations of professional diligence, is an unfair commercial practice. The notice does not describe the shortfall or the period concerned. The Consiglio di Stato asks whether Articles 2, 3 and 5 of Directive 2005/29/EC preclude that interpretation.
Questions Referred
Must Articles 2, 3 and 5 of Directive 2005/29/EC be interpreted as precluding an interpretation, such as that adopted in the decision at issue in the main proceedings, according to which, in a situation in which the consumer does not have any effective alternatives, the failure to reduce the contractually agreed consideration for a service, in the event of a shortfall in quality attributable to the trader’s failure to comply with the obligations of professional diligence, constitutes an unfair commercial practice?
Sources
OJ notice C/2026/5055 (EUR‑Lex) · Case file on CURIA · Directive 2005/29/EC
Comment
The three articles cited frame three objections, and the Court will have to deal with each. Article 2(d) defines a commercial practice as “any act, omission, course of conduct or representation … directly connected with the promotion, sale or supply of a product to consumers”. An omission is included, and supply is included, so failing to adjust the price of a service while supplying it is capable of being a practice. Article 5(2) then makes a practice unfair if it is “contrary to the requirements of professional diligence” — defined in Article 2(h) as “the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers” — and if it “materially distorts or is likely to materially distort the economic behaviour” of the average consumer. The authority’s theory meets the first condition almost by its own terms. The second is harder: if the driver has no alternative route, what economic decision has been distorted?
The answer the authority must rely on lies in Article 2(k), which defines a transactional decision broadly enough to include a decision “to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting”. A driver who pays a full toll for a degraded service without knowing that a reduction is owed, or without any practical means of claiming it, may be said to refrain from exercising a right. Whether that is enough to bring a pricing omission within the Directive is the core of the case.
Article 3(2) supplies Autostrade’s strongest point: the Directive “is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract”. Whether a toll should be reduced when the road is substandard is, on this view, a question about what the concession and the terms of carriage require — a matter for contract and for the sector regulator, not for a regulator of commercial practices. Article 3(1) applies the Directive to practices “before, during and after a commercial transaction”, so conduct in the performance of a contract is within its reach; but treating a failure to grant a price reduction that the contract does not expressly provide as itself an unfair practice would be a significant step. If the Court takes it, the reasoning will not stop at motorways. Every provider of an essential service with captive customers — utilities, transport, telecommunications — would face the argument that charging full price for a service it has let deteriorate is unfair, independently of what the contract says.