Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)   (Text with EEA relevance)
Date: 2005-05-11
Institutions: Council of the European Union, European Parliament
Subjects: advertising, advertising malpractice, comparative advertising, consumer information, single market, trade information

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DIRECTIVE 2005/29/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and amending
Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European
Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of
the Council
(‘Unfair Commercial Practices Directive’)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 95 thereof,

advertising, Council Directive 84/450/EEC of 10 Septem-
ber 1984 concerning misleading and comparative adver-
tising (3) establishes minimum criteria for harmonising
legislation on misleading advertising, but does not prevent
the Member States from retaining or adopting measures
which provide more extensive protection for consumers.
As a result, Member States’ provisions on misleading adver-
tising diverge significantly.

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

(4)

Acting in accordance with the procedure laid down in Article 251
of the Treaty (2),

Whereas:

(1)

(2)

(3)

Article 153(1) and (3)(a) of the Treaty provides that the
Community is to contribute to the attainment of a high
level of consumer protection by the measures it adopts
pursuant to Article 95 thereof.

(5)

In accordance with Article 14(2) of the Treaty, the internal
market comprises an area without internal frontiers in
which the free movement of goods and services and free-
dom of establishment are ensured. The development of fair
commercial practices within the area without internal fron-
tiers is vital for the promotion of the development of cross-
border activities.

The laws of the Member States relating to unfair commer-
cial practices show marked differences which can generate
appreciable distortions of competition and obstacles to the
smooth functioning of the internal market. In the field of

These disparities cause uncertainty as to which national
rules apply to unfair commercial practices harming con-
sumers’ economic interests and create many barriers affect-
ing business and consumers. These barriers increase the
cost to business of exercising internal market freedoms, in
particular when businesses wish to engage in cross border
marketing, advertising campaigns and sales promotions.
Such barriers also make consumers uncertain of their
rights and undermine their confidence in the internal
market.

In the absence of uniform rules at Community level,
obstacles to the free movement of services and goods
across borders or the freedom of establishment could be
justified in the light of the case-law of the Court of Justice
of the European Communities as long as they seek to pro-
tect recognised public interest objectives and are propor-
tionate to those objectives. In view of the Community’s
objectives, as set out in the provisions of the Treaty and in
secondary Community law relating to freedom of move-
ment, and in accordance with the Commission’s policy on
commercial communications as indicated in the Commu-
nication from the Commission entitled ‘The follow-up to
the Green Paper on Commercial Communications in the
Internal Market’, such obstacles should be eliminated.
These obstacles can only be eliminated by establishing uni-
form rules at Community level which establish a high level
of consumer protection and by clarifying certain legal con-
cepts at Community level to the extent necessary for the
proper functioning of the internal market and to meet the
requirement of legal certainty.

(1) OJ C 108, 30.4.2004, p. 81.
(2) Opinion of the European Parliament of 20 April 2004 (OJ C 104 E,
30.4.2004, p. 260), Council Common Position of 15 November 2004
(OJ C 38 E, 15.2.2005, p. 1), Position of the European Parliament of
24 February 2005 (not yet published in the Official Journal) and Coun-
cil Decision of 12 April 2005.

(3) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive
97/55/EC of the European Parliament and of the Council (OJ L 290,
23.10.1997, p. 18).

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(6)

(7)

This Directive therefore approximates the laws of the
Member States on unfair commercial practices, including
unfair advertising, which directly harm consumers’ eco-
nomic interests and thereby indirectly harm the economic
interests of legitimate competitors. In line with the prin-
ciple of proportionality, this Directive protects consumers
from the consequences of such unfair commercial prac-
tices where they are material but recognises that in some
cases the impact on consumers may be negligible. It nei-
ther covers nor affects the national laws on unfair com-
mercial practices which harm only competitors’ economic
interests or which relate to a transaction between traders;
taking full account of the principle of subsidiarity, Mem-
ber States will continue to be able to regulate such prac-
tices, in conformity with Community law, if they choose to
do so. Nor does this Directive cover or affect the provisions
of Directive 84/450/EEC on advertising which misleads
business but which is not misleading for consumers and on
comparative advertising. Further, this Directive does not
affect accepted advertising and marketing practices, such as
legitimate product placement, brand differentiation or the
offering of incentives which may legitimately affect con-
sumers’ perceptions of products and influence their behav-
iour without impairing the consumer’s ability to make an
informed decision.

This Directive addresses commercial practices directly
related to influencing consumers’ transactional decisions in
relation to products. It does not address commercial prac-
tices carried out primarily for other purposes, including for
example commercial communication aimed at investors,
such as annual reports and corporate promotional litera-
ture. It does not address legal requirements related to taste
and decency which vary widely among the Member States.
Commercial practices such as, for example, commercial
solicitation in the streets, may be undesirable in Member
States for cultural reasons. Member States should accord-
ingly be able to continue to ban commercial practices in
their territory, in conformity with Community law, for rea-
sons of taste and decency even where such practices do not
limit consumers’ freedom of choice. Full account should be
taken of the context of the individual case concerned in
applying this Directive, in particular the general clauses
thereof.

consumers, may hurt competitors and business customers.
The Commission should carefully examine the need for
Community action in the field of unfair competition
beyond the remit of this Directive and, if necessary, make
a legislative proposal to cover these other aspects of unfair
competition.

(9)

This Directive is without prejudice to individual actions
brought by those who have been harmed by an unfair
commercial practice. It is also without prejudice to Com-
munity and national rules on contract law, on intellectual
property rights, on the health and safety aspects of prod-
ucts, on conditions of establishment and authorisation
regimes, including those rules which, in conformity with
Community law, relate to gambling activities, and to Com-
munity competition rules and the national provisions
implementing them. The Member States will thus be able
to retain or introduce restrictions and prohibitions of com-
mercial practices on grounds of the protection of the
health and safety of consumers in their territory wherever
the trader is based, for example in relation to alcohol,
tobacco or pharmaceuticals. Financial services and immov-
able property, by reason of their complexity and inherent
serious risks, necessitate detailed requirements, including
positive obligations on traders. For this reason, in the field
of financial services and immovable property, this Direc-
tive is without prejudice to the right of Member States to
go beyond its provisions to protect the economic interests
of consumers. It is not appropriate to regulate here the cer-
tification and indication of the standard of fineness of
articles of precious metal.

(10)

It is necessary to ensure that the relationship between
this Directive and existing Community law is coherent,
particularly where detailed provisions on unfair commer-
cial practices apply to specific sectors. This Directive there-
fore amends Directive 84/450/EEC, Directive 97/7/EC of
the European Parliament and of the Council of 20 May
1997 on the protection of consumers in respect of dis-
tance contracts (1), Directive 98/27/EC of the European
Parliament and of the Council of 19 May 1998 on injunc-
tions for the protection of consumers’ interests (2) and
Directive 2002/65/EC of the European Parliament and of
the Council of 23 September 2002 concerning the dis-
tance marketing of consumer financial services (3). This
Directive accordingly applies only in so far as there are no

(8)

This Directive directly protects consumer economic
interests from unfair business-to-consumer commercial
practices. Thereby, it also indirectly protects legitimate
businesses from their competitors who do not play by the
rules in this Directive and thus guarantees fair competition
in fields coordinated by it. It is understood that there are
other commercial practices which, although not harming

(1) OJ L 144, 4.6.1997, p. 19. Directive as amended by Directive

2002/65/EC (OJ L 271, 9.10.2002, p. 16).

(2) OJ L 166, 11.6.1998, p. 51. Directive as last amended by Directive

2002/65/EC.

(3) OJ L 271, 9.10.2002, p. 16.

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(14)

specific Community law provisions regulating specifi-
caspects ofunfair commercial practices, such as informa-
tion requirements and rules on the way the information is
presented to the consumer. It provides protection for con-
sumers where there is no specific sectoral legislation at
Community level and prohibits traders from creating a
false impression of the nature of products. This is particu-
larly important for complex products with high levels of
risk to consumers, such as certain financial services prod-
ucts. This Directive consequently complements the Com-
munity acquis, which is applicable to commercial practices
harming consumers’ economic interests.

It is desirable that misleading commercial practices cover
those practices, including misleading advertising, which by
deceiving the consumer prevent him from making an
informed and thus efficient choice. In conformity with the
laws and practices of Member States on misleading adver-
tising, this Directive classifies misleading practices into
misleading actions and misleading omissions. In respect of
omissions, this Directive sets out a limited number of key
items of information which the consumer needs to make
an informed transactional decision. Such information will
not have to be disclosed in all advertisements, but only
where the trader makes an invitation to purchase, which is
a concept clearly defined in this Directive. The full har-
monisation approach adopted in this Directive does not
preclude the Member States from specifying in national
law the main characteristics of particular products such as,
for example, collectors’ items or electrical goods, the omis-
sion of which would be material when an invitation to pur-
chase is made. It is not the intention of this Directive to
reduce consumer choice by prohibiting the promotion of
products which look similar to other products unless this
similarity confuses consumers as to the commercial origin
of the product and is therefore misleading. This Directive
should be without prejudice to existing Community law
which expressly affords Member States the choice between
several regulatory options for the protection of consumers
in the field of commercial practices. In particular, this
Directive should be without prejudice to Article 13(3) of
Directive 2002/58/EC of the European Parliament and of
the Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the elec-
tronic communications sector (1).

(15) Where Community law sets out information requirements
in relation to commercial communication, advertising and
marketing that information is considered as material under
this Directive. Member States will be able to retain or add
information requirements relating to contract law and hav-
ing contract law consequences where this is allowed by the
minimum clauses in the existing Community law instru-
ments. A non-exhaustive list of such information require-
ments in the acquis is contained in Annex II. Given the full
harmonisation introduced by this Directive only the infor-
mation required in Community law is considered as mate-
rial for the purpose of Article 7(5) thereof. Where Member
States have introduced information requirements over and
above what is specified in Community law, on the basis of
minimum clauses, the omission of that extra information
will not constitute a misleading omission under this Direc-
tive. By contrast Member States will be able, when allowed
by the minimum clauses in Community law, to maintain
or introduce more stringent provisions in conformity with
Community law so as to ensure a higher level of protec-
tion of consumers’ individual contractual rights.

(1) OJ L 201, 31.7.2002, p. 37.

(11)

The high level of convergence achieved by the approxima-
tion of national provisions through this Directive creates a
high common level of consumer protection. This Directive
establishes a single general prohibition of those unfair
commercial practices distorting consumers’ economic
behaviour. It also sets rules on aggressive commercial prac-
tices, which are currently not regulated at Community
level.

(12) Harmonisation will considerably increase legal certainty
for both consumers and business. Both consumers and
business will be able to rely on a single regulatory frame-
work based on clearly defined legal concepts regulating all
aspects of unfair commercial practices across the EU. The
effect will be to eliminate the barriers stemming from the
fragmentation of the rules on unfair commercial practices
harming consumer economic interests and to enable the
internal market to be achieved in this area.

(13)

In order to achieve the Community’s objectives through
the removal of internal market barriers, it is necessary to
replace Member States’ existing, divergent general clauses
and legal principles. The single, common general prohibi-
tion established by this Directive therefore covers unfair
commercial practices distorting consumers’ economic
behaviour. In order to support consumer confidence the
general prohibition should apply equally to unfair com-
mercial practices which occur outside any contractual rela-
tionship between a trader and a consumer or following the
conclusion of a contract and during its execution. The gen-
eral prohibition is elaborated by rules on the two types of
commercial practices which are by far the most common,
namely misleading commercial practices and aggressive
commercial practices.

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(16)

The provisions on aggressive commercial practices should
cover those practices which significantly impair the con-
sumer’s freedom of choice. Those are practices using
harassment, coercion, including the use of physical force,
and undue influence.

(20)

(17)

It is desirable that those commercial practices which are in
all circumstances unfair be identified to provide greater
legal certainty. Annex I therefore contains the full list of all
such practices. These are the only commercial practices
which can be deemed to be unfair without a case-by-case
assessment against the provisions of Articles 5 to 9. The
list may only be modified by revision of the Directive.

(18)

It is appropriate to protect all consumers from unfair com-
mercial practices; however the Court of Justice has found
it necessary in adjudicating on advertising cases since the
enactment of Directive 84/450/EEC to examine the effect
on a notional, typical consumer. In line with the principle
of proportionality, and to permit the effective application
of the protections contained in it, this Directive takes as a
benchmark the average consumer, who is reasonably well-
informed and reasonably observant and circumspect, tak-
ing into account social, cultural and linguistic factors, as
interpreted by the Court of Justice, but also contains pro-
visions aimed at preventing the exploitation of consumers
whose characteristics make them particularly vulnerable to
unfair commercial practices. Where a commercial practice
is specifically aimed at a particular group of consumers,
such as children, it is desirable that the impact of the com-
mercial practice be assessed from the perspective of the
average member of that group. It is therefore appropriate
to include in the list of practices which are in all circum-
stances unfair a provision which, without imposing an out-
right ban on advertising directed at children, protects them
from direct exhortations to purchase. The average con-
sumer test is not a statistical test. National courts and
authorities will have to exercise their own faculty of judge-
ment, having regard to the case-law of the Court of Justice,
to determine the typical reaction of the average consumer
in a given case.

It is appropriate to provide a role for codes of conduct,
which enable traders to apply the principles of this Direc-
tive effectively in specific economic fields. In sectors where
there are specific mandatory requirements regulating the
behaviour of traders, it is appropriate that these will also
provide evidence as to the requirements of professional
diligence in that sector. The control exercised by code
owners at national or Community level to eliminate unfair
commercial practices may avoid the need for recourse to
administrative or judicial action and should therefore be
encouraged. With the aim of pursuing a high level of con-
sumer protection, consumers’ organisations could be
informed and involved in the drafting of codes of conduct.

(21)

Persons or organisations regarded under national law as
having a legitimate interest in the matter must have legal
remedies for initiating proceedings against unfair commer-
cial practices, either before a court or before an adminis-
trative authority which is competent to decide upon
complaints or to initiate appropriate legal proceedings.
While it is for national law to determine the burden of
proof, it is appropriate to enable courts and administrative
authorities to require traders to produce evidence as to the
accuracy of factual claims they have made.

(22)

It is necessary that Member States lay down penalties for
infringements of the provisions of this Directive and they
must ensure that these are enforced. The penalties must be
effective, proportionate and dissuasive.

(23)

Since the objectives of this Directive, namely to eliminate
the barriers to the functioning of the internal market
represented by national laws on unfair commercial prac-
tices and to provide a high common level of consumer
protection, by approximating the laws, regulations and
administrative provisions of the Member States on unfair
commercial practices, cannot be sufficiently achieved by
the Member States and can therefore be better achieved at
Community level, the Community may adopt measures, in
accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle of
proportionality, as set out in that Article, this Directive
does not go beyond what is necessary in order to eliminate
the internal market barriers and achieve a high common
level of consumer protection.

(19) Where certain characteristics such as age, physical or men-
tal infirmity or credulity make consumers particularly sus-
ceptible to a commercial practice or to the underlying
product and the economic behaviour only of such con-
sumers is likely to be distorted by the practice in a way that
the trader can reasonably foresee,
it is appropriate to
ensure that they are adequately protected by assessing the
practice from the perspective of the average member of
that group.

(24)

It is appropriate to review this Directive to ensure that bar-
riers to the internal market have been addressed and a high
level of consumer protection achieved. The review could
lead to a Commission proposal to amend this Directive,
which may include a limited extension to the derogation in

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Article 3(5), and/or amendments to other consumer pro-
tection legislation reflecting the Commission’s Consumer
Policy Strategy commitment to review the existing acquis in
order to achieve a high, common level of consumer
protection.

(25)

This Directive respects the fundamental rights and observes
the principles recognised in particular by the Charter of
Fundamental Rights of the European Union,

(e)

(f)

HAVE ADOPTED THIS DIRECTIVE:

‘to materially distort the economic behaviour of consumers’
means using a commercial practice to appreciably impair the
consumer’s ability to make an informed decision, thereby
causing the consumer to take a transactional decision that he
would not have taken otherwise;

‘code of conduct’ means an agreement or set of rules not
imposed by law, regulation or administrative provision of a
Member State which defines the behaviour of traders who
undertake to be bound by the code in relation to one or more
particular commercial practices or business sectors;

CHAPTER 1

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to contribute to the proper func-
tioning of the internal market and achieve a high level of con-
sumer protection by approximating the laws, regulations and
administrative provisions of the Member States on unfair com-
mercial practices harming consumers’ economic interests.

Article 2

Definitions

For the purposes of this Directive:

(a)

‘consumer’ means any natural person who, in commercial
practices covered by this Directive, is acting for purposes
which are outside his trade, business, craft or profession;

(b)

‘trader’ means any natural or legal person who, in commer-
cial practices covered by this Directive, is acting for purposes
relating to his trade, business, craft or profession and anyone
acting in the name of or on behalf of a trader;

(c)

‘product’ means any goods or service including immovable
property, rights and obligations;

(d)

‘business-to-consumer commercial practices’ (hereinafter also
referred to as commercial practices) means any act, omission,
course of conduct or representation, commercial communi-
cation including advertising and marketing, by a trader,
directly connected with the promotion, sale or supply of a
product to consumers;

(g)

‘code owner’ means any entity, including a trader or group of
traders, which is responsible for the formulation and revision
of a code of conduct and/or for monitoring compliance with
the code by those who have undertaken to be bound by it;

(h)

‘professional diligence’ means the standard of special skill and
care which a trader may reasonably be expected to exercise
towards consumers, commensurate with honest market prac-
tice and/or the general principle of good faith in the trader’s
field of activity;

(i)

(j)

(k)

(l)

‘invitation to purchase’ means a commercial communication
which indicates characteristics of the product and the price
in a way appropriate to the means of the commercial com-
munication used and thereby enables the consumer to make
a purchase;

‘undue influence’ means exploiting a position of power in
relation to the consumer so as to apply pressure, even with-
out using or threatening to use physical force, in a way which
significantly limits the consumer’s ability to make an
informed decision;

‘transactional decision’ means any decision taken by a con-
sumer concerning whether, how and on what terms to pur-
chase, make payment in whole or in part for, retain or
dispose of a product or to exercise a contractual right in rela-
tion to the product, whether the consumer decides to act or
to refrain from acting;

‘regulated profession’ means a professional activity or a
group of professional activities, access to which or the pur-
suit of which, or one of the modes of pursuing which, is con-
ditional, directly or indirectly, upon possession of specific
professional qualifications, pursuant to laws, regulations or
administrative provisions.

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Article 3

Scope

In relation to ‘financial services’, as defined in Directive
9.
2002/65/EC, and immovable property, Member States may
impose requirements which are more restrictive or prescriptive
than this Directive in the field which it approximates.

1.
This Directive shall apply to unfair business-to-consumer
commercial practices, as laid down in Article 5, before, during
and after a commercial transaction in relation to a product.

10.
This Directive shall not apply to the application of the
laws, regulations and administrative provisions of Member States
relating to the certification and indication of the standard of fine-
ness of articles of precious metal.

This Directive is without prejudice to contract law and, in
2.
particular, to the rules on the validity, formation or effect of a
contract.

Article 4

Internal market

3.
This Directive is without prejudice to Community or
national rules relating to the health and safety aspects of products.

4.
In the case of conflict between the provisions of this Direc-
tive and other Community rules regulating specific aspects of
unfair commercial practices, the latter shall prevail and apply to
those specific aspects.

Member States shall neither restrict the freedom to provide ser-
vices nor restrict the free movement of goods for reasons falling
within the field approximated by this Directive.

CHAPTER 2

UNFAIR COMMERCIAL PRACTICES

Article 5

Prohibition of unfair commercial practices

5.
For a period of six years from 12 June 2007, Member States
shall be able to continue to apply national provisions within the
field approximated by this Directive which are more restrictive or
prescriptive than this Directive and which implement directives
containing minimum harmonisation clauses. These measures
must be essential to ensure that consumers are adequately pro-
tected against unfair commercial practices and must be propor-
tionate to the attainment of this objective. The review referred to
in Article 18 may, if considered appropriate, include a proposal
to prolong this derogation for a further limited period.

1.

Unfair commercial practices shall be prohibited.

2.

A commercial practice shall be unfair if:

(a)

it is contrary to the requirements of professional diligence,

6. Member States shall notify the Commission without delay
of any national provisions applied on the basis of paragraph 5.

(b)

and

it materially distorts or is likely to materially distort the eco-
nomic behaviour with regard to the product of the average
consumer whom it reaches or to whom it is addressed, or of
the average member of the group when a commercial prac-
tice is directed to a particular group of consumers.

This Directive is without prejudice to the rules determining

7.
the jurisdiction of the courts.

8.
This Directive is without prejudice to any conditions of
establishment or of authorisation regimes, or to the deontologi-
cal codes of conduct or other specific rules governing regulated
professions in order to uphold high standards of integrity on the
part of the professional, which Member States may, in conformity
with Community law, impose on professionals.

3.
Commercial practices which are likely to materially distort
the economic behaviour only of a clearly identifiable group of
consumers who are particularly vulnerable to the practice or the
underlying product because of their mental or physical infirmity,
age or credulity in a way which the trader could reasonably be
expected to foresee, shall be assessed from the perspective of the
average member of that group. This is without prejudice to the
common and legitimate advertising practice of making exagger-
ated statements or statements which are not meant to be taken
literally.

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4.

In particular, commercial practices shall be unfair which:

(f)

(a) are misleading as set out in Articles 6 and 7,

or

(b) are aggressive as set out in Articles 8 and 9.

5.
Annex I contains the list of those commercial practices
which shall in all circumstances be regarded as unfair. The same
single list shall apply in all Member States and may only be modi-
fied by revision of this Directive.

S e c t i o n 1

M i s l e a d i n g c o m m e r c i a l p r a c t i c e s

Article 6

Misleading actions

A commercial practice shall be regarded as misleading if it
1.
contains false information and is therefore untruthful or in any
way, including overall presentation, deceives or is likely to deceive
the average consumer, even if the information is factually correct,
in relation to one or more of the following elements, and in either
case causes or is likely to cause him to take a transactional deci-
sion that he would not have taken otherwise:

the nature, attributes and rights of the trader or his agent,
such as his identity and assets, his qualifications, status,
approval, affiliation or connection and ownership of indus-
trial, commercial or intellectual property rights or his awards
and distinctions;

(g)

the consumer’s rights, including the right to replacement or
reimbursement under Directive 1999/44/EC of the European
Parliament and of the Council of 25 May 1999 on certain
aspects of the sale of consumer goods and associated guar-
antees (1), or the risks he may face.

2.
A commercial practice shall also be regarded as misleading
if, in its factual context, taking account of all its features and cir-
cumstances, it causes or is likely to cause the average consumer
to take a transactional decision that he would not have taken oth-
erwise, and it involves:

(a) any marketing of a product, including comparative advertis-
ing, which creates confusion with any products, trade marks,
trade names or other distinguishing marks of a competitor;

(b) non-compliance by the trader with commitments contained
in codes of conduct by which the trader has undertaken to be
bound, where:

(i)

the commitment is not aspirational but is firm and is
capable of being verified,

(a)

the existence or nature of the product;

and

(b)

the main characteristics of the product, such as its availabil-
ity, benefits, risks, execution, composition, accessories, after-
sale customer assistance and complaint handling, method
and date of manufacture or provision, delivery, fitness for
purpose, usage, quantity, specification, geographical or com-
mercial origin or the results to be expected from its use, or
the results and material features of tests or checks carried out
on the product;

(ii)

the trader indicates in a commercial practice that he is
bound by the code.

Article 7

Misleading omissions

(c)

the extent of the trader’s commitments, the motives for the
commercial practice and the nature of the sales process, any
statement or symbol in relation to direct or indirect sponsor-
ship or approval of the trader or the product;

(d)

the price or the manner in which the price is calculated, or
the existence of a specific price advantage;

1.
A commercial practice shall be regarded as misleading if, in
its factual context, taking account of all its features and circum-
stances and the limitations of the communication medium, it
omits material information that the average consumer needs,
according to the context, to take an informed transactional deci-
sion and thereby causes or is likely to cause the average consumer
to take a transactional decision that he would not have taken
otherwise.

(e)

the need for a service, part, replacement or repair;

(1) OJ L 171, 7.7.1999, p. 12.

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It shall also be regarded as a misleading omission when, tak-
2.
ing account of the matters described in paragraph 1, a trader hides
or provides in an unclear, unintelligible, ambiguous or untimely
manner such material information as referred to in that paragraph
or fails to identify the commercial intent of the commercial prac-
tice if not already apparent from the context, and where, in either
case, this causes or is likely to cause the average consumer to take
a transactional decision that he would not have taken otherwise.

3. Where the medium used to communicate the commercial
practice imposes limitations of space or time, these limitations
and any measures taken by the trader to make the information
available to consumers by other means shall be taken into account
in deciding whether information has been omitted.

4.
In the case of an invitation to purchase, the following infor-
mation shall be regarded as material, if not already apparent from
the context:

S e c t i o n 2

A g g r e s s i v e c o m m e r c i a l p r a c t i c e s

Article 8

Aggressive commercial practices

A commercial practice shall be regarded as aggressive if, in its fac-
tual context, taking account of all its features and circumstances,
by harassment, coercion, including the use of physical force, or
undue influence, it significantly impairs or is likely to significantly
impair the average consumer’s freedom of choice or conduct with
regard to the product and thereby causes him or is likely to cause
him to take a transactional decision that he would not have taken
otherwise.

(a)

the main characteristics of the product, to an extent appro-
priate to the medium and the product;

Article 9

Use of harassment, coercion and undue influence

(b)

the geographical address and the identity of the trader, such
as his trading name and, where applicable, the geographical
address and the identity of the trader on whose behalf he is
acting;

In determining whether a commercial practice uses harassment,
coercion, including the use of physical force, or undue influence,
account shall be taken of:

(c)

the price inclusive of taxes, or where the nature of the prod-
uct means that the price cannot reasonably be calculated in
advance, the manner in which the price is calculated, as well
as, where appropriate, all additional freight, delivery or postal
charges or, where these charges cannot reasonably be calcu-
lated in advance, the fact that such additional charges may be
payable;

(a)

its timing, location, nature or persistence;

(b)

the use of threatening or abusive language or behaviour;

(d)

the arrangements for payment, delivery, performance and the
complaint handling policy, if they depart from the require-
ments of professional diligence;

(c)

the exploitation by the trader of any specific misfortune or
circumstance of such gravity as to impair the consumer’s
judgement, of which the trader is aware, to influence the con-
sumer’s decision with regard to the product;

(e)

for products and transactions involving a right of withdrawal
or cancellation, the existence of such a right.

(d) any onerous or disproportionate non-contractual barriers
imposed by the trader where a consumer wishes to exercise
rights under the contract, including rights to terminate a con-
tract or to switch to another product or another trader;

5.
Information requirements established by Community law
in relation to commercial communication including advertising
or marketing, a non-exhaustive list of which is contained in
Annex II, shall be regarded as material.

(e) any threat to take any action that cannot legally be taken.

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CHAPTER 3

CODES OF CONDUCT

Article 10

Codes of conduct

This Directive does not exclude the control, which Member States
may encourage, of unfair commercial practices by code owners
and recourse to such bodies by the persons or organisations
referred to in Article 11 if proceedings before such bodies are in
addition to the court or administrative proceedings referred to in
that Article.

Recourse to such control bodies shall never be deemed the equiva-
lent of foregoing a means of judicial or administrative recourse as
provided for in Article 11.

CHAPTER 4

FINAL PROVISIONS

Article 11

Enforcement

1. Member States shall ensure that adequate and effective
means exist to combat unfair commercial practices in order to
enforce compliance with the provisions of this Directive in the
interest of consumers.

Article 10. These facilities shall be available regardless of whether
the consumers affected are in the territory of the Member State
where the trader is located or in another Member State.

It shall be for each Member State to decide:

(a) whether these legal facilities may be directed separately or
jointly against a number of traders from the same economic
sector;

and

(b) whether these legal facilities may be directed against a code
owner where the relevant code promotes non-compliance
with legal requirements.

Under the legal provisions referred to in paragraph 1, Mem-
2.
ber States shall confer upon the courts or administrative authori-
ties powers enabling them,
in cases where they deem such
measures to be necessary taking into account all the interests
involved and in particular the public interest:

(a)

to order the cessation of, or to institute appropriate legal pro-
ceedings for an order for the cessation of, unfair commercial
practices;

or

(b)

if the unfair commercial practice has not yet been carried out
but is imminent, to order the prohibition of the practice, or
to institute appropriate legal proceedings for an order for the
prohibition of the practice,

Such means shall include legal provisions under which persons or
organisations regarded under national law as having a legitimate
interest in combating unfair commercial practices, including com-
petitors, may:

even without proof of actual loss or damage or of intention or
negligence on the part of the trader.

(a)

take legal action against such unfair commercial practices;

Member States shall also make provision for the measures referred
to in the first subparagraph to be taken under an accelerated
procedure:

and/or

— either with interim effect,

(b) bring such unfair commercial practices before an administra-
tive authority competent either to decide on complaints or to
initiate appropriate legal proceedings.

or

It shall be for each Member State to decide which of these facili-
ties shall be available and whether to enable the courts or admin-
istrative authorities to require prior recourse to other established
means of dealing with complaints, including those referred to in

on the understanding that it is for each Member State to decide
which of the two options to select.

— with definitive effect,

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Furthermore, Member States may confer upon the courts or
administrative authorities powers enabling them, with a view to
eliminating the continuing effects of unfair commercial practices
the cessation of which has been ordered by a final decision:

(b)

to consider factual claims as inaccurate if the evidence
demanded in accordance with (a) is not furnished or is
deemed insufficient by the court or administrative authority.

(a)

to require publication of that decision in full or in part and
in such form as they deem adequate;

Article 13

Penalties

(b)

to require in addition the publication of a corrective
statement.

The administrative authorities referred to in paragraph 1

3.
must:

Member States shall
lay down penalties for infringements of
national provisions adopted in application of this Directive and
shall take all necessary measures to ensure that these are enforced.
These penalties must be effective, proportionate and dissuasive.

(a) be composed so as not to cast doubt on their impartiality;

Amendments to Directive 84/450/EEC

Article 14

(b) have adequate powers, where they decide on complaints, to
monitor and enforce the observance of their decisions
effectively;

Directive 84/450/EEC is hereby amended as follows:

(c) normally give reasons for their decisions.

1. Article 1 shall be replaced by the following:

Where the powers referred to in paragraph 2 are exercised exclu-
sively by an administrative authority, reasons for its decisions
shall always be given. Furthermore, in this case, provision must be
made for procedures whereby improper or unreasonable exercise
of its powers by the administrative authority or improper or
unreasonable failure to exercise the said powers can be the sub-
ject of judicial review.

‘Article 1

The purpose of this Directive is to protect traders against
misleading advertising and the unfair consequences thereof
and to lay down the conditions under which comparative
advertising is permitted.’;

Article 12

2.

in Article 2:

Courts and administrative authorities: substantiation of
claims

— point 3 shall be replaced by the following:

Member States shall confer upon the courts or administrative
authorities powers enabling them in the civil or administrative
proceedings provided for in Article 11:

‘3.

“trader” means any natural or legal person who is
acting for purposes relating to his trade, craft, busi-
ness or profession and any one acting in the name
of or on behalf of a trader.’,

(a)

to require the trader to furnish evidence as to the accuracy of
factual claims in relation to a commercial practice if, taking
into account the legitimate interest of the trader and any
other party to the proceedings, such a requirement appears
appropriate on the basis of the circumstances of the particu-
lar case;

and

— the following point shall be added:

‘4.

“code owner” means any entity, including a trader
or group of traders, which is responsible for the for-
mulation and revision of a code of conduct and/or
for monitoring compliance with the code by those
who have undertaken to be bound by it.’;

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3. Article 3a shall be replaced by the following:

4. Article 4(1) shall be replaced by the following:

‘Article 3a

1. Comparative advertising shall, as far as the comparison
is concerned, be permitted when the following condi-
tions are met:

‘1. Member States shall ensure that adequate and effective
means exist to combat misleading advertising in order to
enforce compliance with the provisions on comparative
advertising in the interest of traders and competitors.
Such means shall include legal provisions under which
persons or organisations regarded under national law as
having a legitimate interest in combating misleading
advertising or regulating comparative advertising may:

(a)

is not misleading within the meaning of
it
Articles 2(2), 3 and 7(1) of
this Directive or
Articles 6 and 7 of Directive 2005/29/EC of the
European Parliament and of the Council of 11 May
2005 concerning unfair business-to-consumer
commercial practices in the internal market (*);

(a)

take legal action against such advertising;

or

(b)

it compares goods or services meeting the same
needs or intended for the same purpose;

(b) bring such advertising before an administrative
authority competent either to decide on complaints
or to initiate appropriate legal proceedings.

(c)

it objectively compares one or more material, rel-
evant, verifiable and representative features of those
goods and services, which may include price;

(d)

it does not discredit or denigrate the trade marks,
trade names, other distinguishing marks, goods, ser-
vices, activities, or circumstances of a competitor;

(e)

for products with designation of origin, it relates in
each case to products with the same designation;

It shall be for each Member State to decide which of
these facilities shall be available and whether to enable
the courts or administrative authorities to require prior
recourse to other established means of dealing with
complaints, including those referred to in Article 5.

It shall be for each Member State to decide:

(a) whether these legal facilities may be directed sepa-
rately or jointly against a number of traders from
the same economic sector;

(f)

it does not take unfair advantage of the reputation
of a trade mark, trade name or other distinguishing
marks of a competitor or of the designation of ori-
gin of competing products;

and

(g)

it does not present goods or services as imitations
or replicas of goods or services bearing a protected
trade mark or trade name;

(b) whether these legal facilities may be directed against
a code owner where the relevant code promotes
non-compliance with legal requirements.’;

(h)

it does not create confusion among traders, between
the advertiser and a competitor or between the
advertiser’s trade marks, trade names, other distin-
guishing marks, goods or services and those of a
competitor.

(*) OJ L 149, 11.6.2005, p. 22.’;

5. Article 7(1) shall be replaced by the following:

‘1. This Directive shall not preclude Member States from
retaining or adopting provisions with a view to ensur-
ing more extensive protection, with regard to mislead-
ing advertising, for traders and competitors.’

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Article 15

Amendments to Directives 97/7/EC and 2002/65/EC

1. Article 9 of Directive 97/7/EC shall be replaced by the

2.

In the Annex to Regulation (EC) No 2006/2004 of the Euro-
pean Parliament and of the Council of 27 October 2004 on
cooperation between national authorities responsible for the
enforcement of the consumer protection law (the Regulation
on consumer protection cooperation) (1) the following point
shall be added:

following:

‘Article 9

Inertia selling

Given the prohibition of inertia selling practices laid down
in Directive 2005/29/EC of 11 May 2005of the European
Parliament and of the Council concerning unfair business-to-
consumer commercial practices in the internal market (*),
Member States shall take the measures necessary to exempt
the consumer from the provision of any consideration in
cases of unsolicited supply, the absence of a response not
constituting consent.

(*) OJ L 149, 11.6.2005, p. 22.’;

2. Article 9 of Directive 2002/65/EC shall be replaced by the

following:

‘Article 9

Given the prohibition of inertia selling practices laid down in
Directive 2005/29/EC of 11 May 2005 of the European Par-
liament and of the Council concerning unfair business-to-
consumer commercial practices in the internal market (*) and
without prejudice to the provisions of Member States’ legis-
lation on the tacit renewal of distance contracts, when such
rules permit tacit renewal, Member States shall take measures
to exempt the consumer from any obligation in the event of
unsolicited supplies, the absence of a reply not constituting
consent.

(*) OJ L 149, 11.6.2005, p. 22.’

‘16. Directive 2005/29/EC of

the European Parliament
and of the Council of 11 May 2005 concerning unfair
business-to-consumer commercial practices in the inter-
nal market (OJ L 149, 11.6.2005, p. 22).’

Article 17

Information

Member States shall take appropriate measures to inform con-
sumers of the national law transposing this Directive and shall,
where appropriate, encourage traders and code owners to inform
consumers of their codes of conduct.

Article 18

Review

1.
By 12 June 2011 the Commission shall submit to the Euro-
pean Parliament and the Council a comprehensive report on the
application of this Directive, in particular of Articles 3(9) and 4
and Annex I, on the scope for further harmonisation and simpli-
fication of Community law relating to consumer protection, and,
having regard to Article 3(5), on any measures that need to be
taken at Community level to ensure that appropriate levels of
consumer protection are maintained. The report shall be accom-
panied, if necessary, by a proposal to revise this Directive or other
relevant parts of Community law.

2.
The European Parliament and the Council shall endeavour
to act, in accordance with the Treaty, within two years of the pre-
sentation by the Commission of any proposal submitted under
paragraph 1.

Article 16

Amendments to Directive 98/27/EC and Regulation (EC)
No 2006/2004

Article 19

Transposition

1.

In the Annex to Directive 98/27/EC, point 1 shall be replaced
by the following:

‘1. Directive 2005/29/EC of the European Parliament and of
the Council of 11 May 2005 concerning unfair business-
to-consumer commercial practices in the internal mar-
ket (OJ L 149, 11.6.2005, p. 22).’

Member States shall adopt and publish the laws, regulations and
administrative provisions necessary to comply with this Directive
by 12 June 2007. They shall forthwith inform the Commission
thereof and inform the Commission of any subsequent amend-
ments without delay.

(1) OJ L 364, 9.12.2004, p. 1.

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They shall apply those measures by 12 December 2007. When
Member States adopt those measures, they shall contain a refer-
ence to this Directive or be accompanied by such a reference on
the occasion of their official publication. Member States shall
determine how such reference is to be made.

Article 20

Entry into force

Article 21

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 11 May 2005.

This Directive shall enter into force on the day following its pub-
lication in the Official Journal of the European Union.

For the European Parliament
The President
J. P. BORRELL FONTELLES

For the Council
The President
N. SCHMIT

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ANNEX I

COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES
CONSIDERED UNFAIR

Misleading commercial practices

1.

Claiming to be a signatory to a code of conduct when the trader is not.

2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.

3.

Claiming that a code of conduct has an endorsement from a public or other body which it does not have.

4.

Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by
a public or private body when he/it has not or making such a claim without complying with the terms of the approval,
endorsement or authorisation.

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable
grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to
supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable
having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

6. Making an invitation to purchase products at a specified price and then:

(a)

refusing to show the advertised item to consumers;

or

(b)

refusing to take orders for it or deliver it within a reasonable time;

or

(c)

demonstrating a defective sample of it,

with the intention of promoting a different product (bait and switch)

7.

Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular
terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity
or time to make an informed choice.

8. Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transac-
tion in a language which is not an official language of the Member State where the trader is located and then making
such service available only in another language without clearly disclosing this to the consumer before the consumer is
committed to the transaction.

9.

Stating or otherwise creating the impression that a product can legally be sold when it cannot.

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10. Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making
that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without preju-
dice to Council Directive 89/552/EEC (1).

12. Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the con-

sumer or his family if the consumer does not purchase the product.

13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mis-

lead the consumer into believing that the product is made by that same manufacturer when it is not.

14. Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the
opportunity to receive compensation that is derived primarily from the introduction of other consumers into the
scheme rather than from the sale or consumption of products.

15. Claiming that the trader is about to cease trading or move premises when he is not.

16. Claiming that products are able to facilitate winning in games of chance.

17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with
the intention of inducing the consumer to acquire the product at conditions less favourable than normal market
conditions.

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or

a reasonable equivalent.

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the

unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

21.

Including in marketing material an invoice or similar document seeking payment which gives the consumer the impres-
sion that he has already ordered the marketed product when he has not.

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft

or profession, or falsely representing oneself as a consumer.

23. Creating the false impression that after-sales service in relation to a product is available in a Member State other than

the one in which the product is sold.

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Adminis-
trative Action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p. 23). Directive as
amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).

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Aggressive commercial practices

24. Creating the impression that the consumer cannot leave the premises until a contract is formed.

25. Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return except in

circumstances and to the extent justified, under national law, to enforce a contractual obligation.

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circum-
stances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to
Article 10 of Directive 97/7/EC and Directives 95/46/EC (1) and 2002/58/EC.

27. Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably
be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspon-
dence, in order to dissuade a consumer from exercising his contractual rights.

28.

Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents
or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Direc-
tive 89/552/EEC on television broadcasting.

29. Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but
not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Direc-
tive 97/7/EC (inertia selling).

30. Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in

jeopardy.

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize

or other equivalent benefit, when in fact either:

— there is no prize or other equivalent benefit,

or

— taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying

money or incurring a cost.

(1) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to
the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). Directive as amended by Regu-
lation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

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ANNEX II

COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR ADVERTISING
AND COMMERCIAL COMMUNICATION

Articles 4 and 5 of Directive 97/7/EC

Article 3 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (1)

Article 3(3) of Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of
purchasers in respect of certain aspects of contracts relating to the purchase of a right to use immovable properties on a
timeshare basis (2)

Article 3(4) of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer pro-
tection in the indication of the prices of products offered to consumers (3)

Articles 86 to 100 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the
Community code relating to medicinal products for human use (4)

Articles 5 and 6 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic
commerce) (5)

Article 1(d) of Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Council
Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States
concerning consumer credit (6)

Articles 3 and 4 of Directive 2002/65/EC

Article 1(9) of Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Coun-
cil Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for
collective investment in transferable securities (UCITS) with a view to regulating management companies and simplified pro-
spectuses (7)

Articles 12 and 13 of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insur-
ance mediation (8)

Article 36 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life
assurance (9)

(1) OJ L 158, 23.6.1990, p. 59.
(2) OJ L 280, 29.10.1994, p. 83.
(3) OJ L 80, 18.3.1998, p. 27.
(4) OJ L 311, 28.11.2001, p. 67. Directive as last amended by Directive 2004/27/EC (OJ L 136, 30.4.2004, p. 34).
(5) OJ L 178, 17.7.2000, p. 1.
(6) OJ L 101, 1.4.1998, p. 17.
(7) OJ L 41, 13.2.2002, p. 20.
(8) OJ L 9, 15.1.2003, p. 3.
(9) OJ L 345, 19.12.2002, p. 1. Directive as amended by Council Directive 2004/66/EC. (OJ L 168, 1.5.2004, p. 35).

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Article 19 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial
instruments (1)

Articles 31 and 43 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and admin-
istrative provisions relating to direct insurance other than life assurance (2) (third non-life insurance Directive)

Articles 5, 7 and 8 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the
prospectus to be published when securities are offered to the public or admitted to trading (3)

(1) OJ L 145, 30.4.2004, p. 1.
(2) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 2002/87/EC of the European Parliament and of the Council (OJ L 35,

11.2.2003, p. 1).

(3) OJ L 345, 31.12.2003, p. 64.