CONSUMER LAW | The Council of State on unsolicited contacts and the definition of aggressive commercial practices

On 4 June 2025, with judgment No. 4843 (the “Judgment”), the Italian Administrative Court of Second Instance upheld the appeal brought before it by Facile.it Broker di Assicurazioni S.p.A. and Facile.it Mediazione Creditizia S.p.A (the “Companies”) against the decision of the Italian Competition Authority (AGCM or ICA) to sanction the Companies for unfair commercial practices. With the Judgment, the Council of State overturned the entire reasoning of both the Italian Administrative Court of First Instance and the ICA. Among others, the Council of State outlined that unsolicited contact may only be deemed aggressive if evidence of undue influence or the capability of the said practice to significantly restrict consumers’ freedom of choice is provided. Specifically, the Council of State remarked that soliciting consumers who had not explicitly requested to be contacted in order to solicit them to purchase the Companies’ products was not per se unlawful. Such conduct could only be considered an unfair commercial practice upon evidence that it was capable of producing a “concrete form of manipulation” or of “cleverly dulling the user’s will”, leading them to act against their own intentions.

Newsletter n. 108 – June 2025