COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE On the application of the Unfair Commercial Practices Directive Achieving a high level of consumer protection Building trust in the Internal Market
Date: 2013-03-14
Institutions: European Commission
Subjects: advertising, advertising malpractice, application of EU law, comparative advertising, consumer information, single market, trade information

EUROPEAN 
COMMISSION 

Brussels, 14.3.2013  
COM(2013) 138 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE 

On the application of the Unfair Commercial Practices Directive 

Achieving a high level of consumer protection  
Building trust in the Internal Market 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE 

On the application of the Unfair Commercial Practices Directive 

Achieving a high level of consumer protection  
Building trust in the Internal Market 

INTRODUCTION 

1. 
Directive 2005/29/EC on Unfair Commercial Practices1 ("the Directive") was adopted on 11 
May  2005  to  help  consumers  benefit  from  the  Internal  Market  by  removing  regulatory 
barriers,  deriving  from  divergent  national  rules,  which  discouraged  firms  from  selling  and 
undermined consumers' trust in buying across the EU. 

The  Directive  constitutes  the  main  general  body  of  EU  legislation  regulating  misleading 
advertising  and  other  unfair  practices  in  business-to-consumer  transactions.  It  has  a  broad 
scope  of  application,  applying  to  all  business-to-consumer  transactions  ("B2C")  and  in  all 
sectors.  It  applies  not  only  at  the  advertising  or  marketing  stage  of  a  transaction  but  also 
"…during and after a commercial transaction in relation to a product"2. 

The  Directive  provides  for  a  high  level  of  consumer  protection  in  all  sectors.  It  works  as  a 
safety  net  which  fills  the  gaps  which  are  not  regulated  by  other  EU  sector-specific  rules.  It 
ensures that consumers are not misled or exposed to aggressive marketing and that any claim 
made  by  traders  in  the  EU  is  clear,  accurate  and  substantiated,  thus  enabling  consumers  to 
make informed and meaningful choices.  
Together  with  other  Internal  Market  legislation3  and  the  "CPC  Regulation"  on  cooperation 
between  national  authorities  responsible  for  the  enforcement  of  consumer  protection  laws4, 
the Unfair Commercial Practices Directive contributes to achieving market transparency and 
to  preventing  unfair  competition  across  the  EU.  All  Member  States  have  implemented  its 
rules in their national legislation.  

This Communication outlines the main conclusions which can be drawn based on the initial 
period of experience in enforcing the Unfair Commercial Practices Directive, as required by 
its Article 18, and sets out what action is needed to maximise the benefits of the Directive for 
Single Market integration and consumer protection. 

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3 

4 

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. 
See Article 3 (1) of the Directive. 
E.g. the 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"); and Directive 2011/83/EU of the European Parliament and of the 
Council of 25 October 2011 on consumer rights. 
Regulation  No  2006/2004  of  the  European  Parliament  and  of  the  Council  of  27  October  2004  on 
cooperation between national authorities responsible for the enforcement of consumer protection laws 
(the Regulation on consumer protection cooperation). 

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A  detailed  Report5  on  the  application  of  the  Directive  in  the  Member  States  is  published 
together  with  this  Communication.  This  is  part  of  the  European  Consumer  Agenda6,  which 
aims to maximise consumer participation and trust in the market, thereby boosting confidence 
and growth.  

Consumer expenditure accounts for 56 % of EU GDP and is essential in meeting the objective 
of smart, inclusive and sustainable growth. As  outlined  in  the  European  Consumer  Agenda, 
stimulating this demand can play a major role in bringing the EU out of the crisis.  

To make this possible, the potential of the Single Market must be realised.  

Data show that consumers shopping online across the EU have up to 16 times more products 
from which to choose, but 60 % of consumers do not yet use this channel. As a result of this 
reluctance, they do not fully benefit from the variety of choice and price differences available 
in the Single Market.  

Policy actions improving consumer confidence in cross-border shopping online can provide a 
major boost to economic growth in Europe. 

2. 

2.1. 

ASSESSING THE BENEFITS OF THE DIRECTIVE  

Achieving  a  high  level  of  consumer  protection  and  a  level  playing  field  for 
traders 

First  experience  of  the  Directive's  implementation  shows  that  it  has  considerably  improved 
consumer  protection  in  and  across  the  Member  States,  while  better  protecting  legitimate 
businesses from competitors who do not play by the rules. 

The  benefits  of  the  Directive  mainly  stem  from  two  of  its  specific  features,  namely,  its 
horizontal  "safety  net"  character  and  its  combination  of  principle-based  rules  with  a  "Black 
List" of specific prohibitions of certain unfair practices. 

The  Unfair  Commercial  Practices  Directive's  principle-based  rules  have  allowed  national 
authorities  to  adapt  to  fast-evolving  products,  services  and  sales  methods.  They  function  as 
"catch  all"  provisions  providing  criteria  which  can  be  used,  with  a  certain  flexibility,  to 
prevent unfair behaviour that is not covered by specific prohibitions.  

In  turn,  the  "Black  List"  of  practices  banned  in  all  circumstances  has  provided  national 
authorities with an effective tool to tackle common unfair practices like bait advertising, fake 
free offers, hidden advertising and direct targeting of children. 

Below are some examples of prohibited practices under the Directive. 

Attracting consumers to  the  trader's premises or web-site by offering products or services 
which cannot be supplied ("Bait advertising") 

Sabine from Germany found an advert in a magazine offering a special promotion: "Fly to 
Barcelona  for  just  €1!"   But  when  she  tried  to  book  the  flight  online  the  prices  were  much 
higher.  When  she  contacted  the  company's  customer  service  centre  she  learned  that  only  a 
small number of seats had been offered at the reduced rate. The majority of customers could 
not take advantage of this deal. 

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6 

See  Report  accompanying  this  Communication  "First  Report  on  the  application  of  Directive 
2005/29/EC  concerning  unfair  business-to-consumer  commercial  practices  in  the  internal  market 
(‘Unfair Commercial Practices Directive’)". 
See  "A  European  Consumer  Agenda  –  Boosting  confidence  and  growth",  COM(2012)  225  final  of 
22.05.2012 - http://ec.europa.eu/justice/consumer-marketing/index_en.htm. 

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The  Unfair  Commercial  Practices  Directive  outlaws  the  practice  of  offering  a  product  at  a 
specified price without clearly disclosing that its availability may be limited in relation to the 
scale of advertising and the price offered. 

Fake free offers 

Marit  from  Estonia  received  the  following  email  from  a  on-line  beauty  products  retailer: 
"Call  now  and  get  your  FREE  gift,  a  pair  of  designer  sunglasses!".  When  she  called,  she 
was informed that this offer was available only when ordering products valued at €2,000 or 
more.  

The  Unfair  Commercial  Practices  Directive  prevents  a  trader  from  falsely  describing  a 
product  as  free  where,  in  fact,  the  consumer  has  to  incur  a  cost  other  than  the  cost  of 
responding to the commercial practice or paying for the delivery of the item. 

Obstacles to switch 

Filip decides to change his house insurance and to enter a more convenient contract with a 
new  company.  When  he  calls  his  insurance  company,  they  tell  him  that  he  has  to  fill  out 
various different forms to terminate his existing contract. Unfortunately, it will take over two 
weeks  before  they  are  able  (or  willing)  to  provide  the  necessary  forms  and  the  lady  on  the 
phone  also  mentions  that  it  will  take  3  months  to  process  the  request.  Filip  gives  up  in 
frustration. So much for good intentions. 

Under  the  Unfair  Commercial  Practices  Directive  traders  cannot  impose  any  onerous  or 
disproportionate non-contractual barriers where a consumer wishes to exercise rights under 
the  contract,  including  rights  to  terminate  a  contract  or  to  switch  to  another  product  or 
another trader. 

Direct exhortation to children 

Alain was surprised when his daughter suddenly started pestering him to buy a collection of 
movies with her favourite book character. Alain understood what happened when he noticed a 
TV advertisement for the release of the movies stating: “Your favourite book is now out on 
DVD – tell your dad to buy it for you!”  

It is an unfair practice, under the Unfair Commercial Practices Directive, for sellers to exhort 
children to ask an adult to buy advertised products. This ban is valid for all media, including 
television as well as internet advertising. 

Thanks  to  the  Unfair  Commercial  Practices  Directive,  national  consumer  protection 
watchdogs  have  been  able  to  curb  and  sanction  a  broad  range  of  unfair  business  practices, 
including misleading environmental claims and aggressive practices.7 However: 

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7 

Stakeholders suggest that, despite the current legal framework, green claims (such as 
for instance "eco-friendly", "biodegradable", "sustainable" and "natural") are still not 
used responsibly and are often very general, vague and not well-defined. Consumer 
Associations  signal  that  it  is  in  addition  difficult  to  verify  the  truthfulness  of  the 
claims, especially in the energy, cosmetics, cars and detergents sectors. 

A  few  Member  States  signal  aggressive  practices  targeting  children,  in  the  field  of 
on-line games, as well as the elderly. Further efforts need to be made to strengthen 
the  enforcement  of  the  Directive  in  relation  to  these  categories  of  vulnerable 
consumers who find themselves in a situation of weakness. In particular, it must be 
ensured  that,  taking  into  account  also  the  progressive  ageing  of  the  population, 

See Section 4 on enforcement of the accompanying Report on the application of the Directive. 

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vulnerable  consumers  are  protected  from  the  risks  deriving  from  the  effects  of  the 
economic crisis and the complexity of digital markets. 

2.2. 

Building trust in the Single Market 

By replacing the divergent regulations of the Member States on unfair commercial practices 
with one set of rules, the Directive has simplified the regulatory environment and helped to 
remove obstacles to cross-border commerce. 

The Directive has also been widely used to tackle cross-border cases. Almost 50% of mutual 
assistance  requests  dealt  with  by  the  CPC  Network8  over  the  last  5  years  (requests  for 
information,  alerts  and  enforcement  requests)  concerned  infringements  of  the  Unfair 
Commercial  Practices  Directive..  In  addition,  several  joint  surveillance  actions  ("sweeps") 
have been carried out by the CPC-Network on the basis of the Directive's provisions (digital 
products  /  services,  websites  selling  airlines  tickets,  online  mobile  phone  services,  websites 
selling consumer electronic goods).9 

A  substantial  part  of  the  Directive  aims  at  ensuring  that  information  on  the  main 
characteristics  of  a  product  or  service,  on  the  price  and  key  conditions  are  provided  to 
consumers in a truthful, complete and timely manner. This makes it easier for consumers to 
understand  and  compare  offers  and  has  a  direct  impact  on  the  marketing  and  advertising 
techniques developed by traders.  

Advertising  plays  a  vital  role  in  a  functioning  Single  Market  and  is  the  main  tool  for 
companies to sell their products and services cross-border. Advertising allows companies to 
differentiate  themselves  openly:  it  stimulates  competition,  decreases  prices  and  increases 
quality.  

Accurate and more transparent information for domestic and cross-border offers has also been 
identified  in  the  recent  E-commerce  Communication  as  one  of  the  key  factors  to  increase 
consumer trust and to encourage retailers to sell on-line10. 

Recent  evidence  reveals  that  more  consumers  are  now  interested  in  making  cross-border 
purchases  (52%,  +19  percentage  points)  and  are  willing  to  spend  more  money  cross-border 
(18%, +5 percentage points) than in 2006, when the Directive had not yet been transposed in 
the  Member  States.11  The  Unfair  Commercial  Practices  Directive  has  played  its  part  in 
generating this more open attitude amongst European consumers, as it is one of the main EU 
legislative  tools  devised  to  boost  their  confidence  and  stimulate  cross-border  trade. 

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11 

The  CPC  Regulation  No  2006/2004  established  a  framework  enabling  enforcers  to  work  closely 
together in order to stop cross-border commercial practices breaching consumer laws. Since 2007 the 
CPC-Network has been dealing with cross-border cases involving a breach of the Unfair Commercial 
Practices Directive. 
http://ec.europa.eu/consumers/enforcement/index_en.htm 
See  Commission  Staff  Working  Paper,  Bringing  e-commerce  benefits  to  consumers,  document 
accompanying the Communication from the Commission to the European Parliament, the Council, the 
European  Economic  and  Social  Committee  and  the  Committee  of  Regions,  A  coherent  framework  to 
boost confidence in the Digital Single Market of e-commerce and other online services, COM (2011) 
942 
http://ec.europa.eu/internal_market/e-
commerce/communication_2012_en.htm. 
See  Flash  Eurobarometer  332  Consumers'  attitudes  towards  cross-border  trade  and  consumer 
protection,  May  2012,  p.  8.  http://ec.europa.eu/public_opinion/flash/fl_332_en.pdf  A  growing 
proportion of consumers, 50%, are willing to purchase goods or services using another EU language (+ 
17 points in comparison to 2006). The percentage that would be totally unwilling to shop in a different 
language has fallen from 42% in 2008 to 30% in 2011. The proportion of Europeans who say they know 
where to get information and advice about cross-border shopping has also risen significantly, from 24% 
in 2006 to 39% in 2011. 

11.01.2012 

final 

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Nevertheless,  it  has  to  be  recognised  that  growth  in  on-line  cross-border  shopping  lags  far 
behind on-line domestic growth thereby highlighting that more needs to be done. 

Financial services and immovable property are critical sectors, by reason of their complexity 
and inherent serious risks. Several unfair practices, such as the lack of essential information at 
the  advertising  stage  and  misleading  description  of  products,  have  been  reported  in  these 
fields.  Most  Member  States  have  put  in  place  national  rules  that  provide  consumers  with 
safeguards which add to and complement those laid down in the Unfair Commercial Practices 
Directive. The results of the investigation reveal that it would not be appropriate, for the time 
being, to remove the possibility, foreseen by the Directive, for Member States to go beyond 
the level of harmonisation set by it in these specific sectors.12 

2.3. 

Adequate and effective enforcement of the Directive  

As a whole, the legal framework of the Unfair Commercial Practices Directive is proving well 
suited to assess the fairness of new on-line practices that are developing in parallel with the 
evolution  of  advertising  sales  techniques,  such  as  price  comparison  and  collective  booking 
web-sites  or  in  relation,  for  example,  to  the  increasing  involvement  of  advertising  in  social 
networks.  

Member States and stakeholders appear to consider national enforcement of the Directive, in 
general terms, adequate and effective but signal that the lack of resources, the complexity or 
length  of  internal  procedures  and  the  lack  of  deterrent  sanctions  threaten  to  undermine  its 
proper application. 

In  cases  of  cross-border  unfair  commercial  practices,  it  is  a  real  challenge  for  enforcers  to 
provide  a  rapid  and  efficient  response.  This  also  bears  an  impact  on  the  enforcement  of  the 
legislation  at  a  cross-border  level  and,  as  shown  by  the  outcome  of  the  consultation,  it  has 
become apparent in the area of administrative cooperation based on the CPC-Regulation. 

The  enforcement  experience  confirms  that  one  of  the  major  problems  concerning  customer 
review tools and, especially, price comparison websites is that they do not clearly disclose the 
identity of the trader operating the site and /or whether retailers pay to have their products and 
services displayed (i.e. whether the site is sponsored or not).  

Feedback from stakeholders suggests that the obligation to provide clear and complete price 
information  is  often  neglected  in  commercial  offers,  especially  in  the  travel  and  transport 
sector.  

In both cases, stakeholders do not call for legislative measures, but for a more stringent and 
coherent enforcement action. 

3. 

KEY PRIORITIES FOR FURTHER ACTION  

In  line  with  what  has  been  outlined  in  the  European  Consumer  Agenda  and  in  the 
Commission Communication on a better functioning of the Single Market,13 ensuring a better 
implementation and enforcement of existing rules is a "quick win" for growth and jobs. 

12 

13 

See  Article  3(9) of  the  Unfair  Commercial  Practice  Directive  and  the Study  on  the application of  the 
Unfair  Commercial  Practices  Directive  to  financial  services  and  immovable  property  conducted  by 
Civic  Consulting  on  behalf  of  the  European  Commission,  DG  Justice  2012,  available  at: 
http://ec.europa.eu/justice/consumer-marketing/document. 
See Communication of the European Commission Better governance for the single market, COM(2012) 
259/2.  http://ec.europa.eu/internal_market/strategy/docs/governance/20120608-communication-2012-
259-2_en.pdf  

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In  this  context,  the  Directive  has  a  crucial  role  to  play  and  the  Commission  has  identified 
retail  trade  (including  e-commerce),  the  travel  and  transport  sector,  financial  services,  the 
digital  economy,  energy  and  sustainability  as  key  priority  areas  for  unlocking  the  Single 
Market's growth potential.14 

To  ensure  that  the  Directive  maintains  a  high  level  of  consumer  protection  and  delivers  its 
internal  market  benefits,  intensified  national  enforcement  and  reinforced  cooperation  in 
cross-border  enforcement  are  needed.  This  particularly  applies  in  case  of  unfair  practices 
simultaneously  arising  in  different  Member  States.  In  such  cases,  an  efficient  coordination 
between the Commission, national authorities, consumer organisations and businesses is key 
to tackle practices that have an EU-wide impact.15 

The  need  to  step  up  enforcement  at  both  cross-border  and  national  levels  calls  for  the 
Commission  to  take  a  more  prominent  role,  joining  forces  with  the  Member  States  and 
supporting  them  in  the  application  of  the  Directive  across  the  EU.  In  this  respect,  the 
Commission will consider how, in accordance with the Treaties, it can play a more active role 
in  encouraging  a  coherent  application  of  the  Directive  in  particular  with  regard  to  unfair 
practices  having  a  cross-border  dimension  such  as  those  taking  place  in  the  on-line 
environment  and  which  raise  common  questions  for  enforcers.  Promoting  converging 
practices in the implementation of the Directive is key for securing a level playing field for 
traders,  notably  when  they  act  in  a  cross-border  context,  and  ultimately  for  ensuring  a  high 
level of consumer protection across Europe.  

3.1. 

Ensure the full conformity of national laws with the Directive 

In  its  role  as  guardian  of  the  Treaties,  the  Commission  will  continue  to  closely  monitor  the 
correct  transposition  and  application  of  the  Directive  in  all  Member  States.  It  will  perform 
conformity checks and conduct in-depth reviews to see how rules work in practice and define 
corrective action where needed. The current analysis indicates that in several Member States 
discrepancies  between  national  laws  and  the  Directive  still  exist.  The  Commission  services 
are  therefore  in  contact  with  the  Member  States  concerned.  The  Commission  will  take  the 
necessary actions under Article 258 of the TFEU, whenever a Member State fails to comply 
with its transposition and enforcement obligations. 

3.2. 

Ensure uniform and adequate application of the Directive in the Member States 

To  ensure  that  the  Directive  is  applied  in  an  appropriate  and  consistent  manner  the 
Commission will: 

• 

• 

14 
15 

16 

17 

further  develop  the  Guidance  document  in  response  to  the  input  received  from 
national enforcers and other stakeholders, the emergence of new practices, including 
on-line, and the development of EU and national case-law16. 
improve, expand and up-date the Unfair Commercial Practices Directive Database.17 

See the European Consumer Agenda. 
See the accompanying Report on the application of the Directive, Section 3.3.3., for example in relation 
to the decision of the Italian Antitrust Authority (AGCM) PS7256 – Comet-Apple Prodotti in Garanzia, 
Provvedimento n. 23193 of 27 December 2011. 
Amongst  others,  the  Commission  plans  to  further  develop  its  Guidance  on  misleading  environmental 
claims, based on the results of a specific study to be conducted in the course of 2013 and the on-going 
work on the Sustainable Consumption and Production Action Plan. 
See  https://webgate.ec.europa.eu/ucp/  This  database  is  based  on  Decision  No  1926/2006/EC  of  the 
European Parliament and of the Council of 18 December 2006 establishing a programme of Community 
action in the field of consumer policy (2007-2013). 

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3.3. 

Enhance enforcement and administrative cooperation between Member States 

Taking into account the feedback received from  Member States and stakeholders as  well as 
the  available  data,  the  Commission  has  identified  key  sectors  where  detriment  and  lost 
opportunities for consumers have been found and where the Single Market's growth potential 
is the biggest.  

In  these  areas,  the  Commission  will  launch  specific  initiatives  aimed  at  strengthening 
enforcement, in line with the objectives set out in the European Consumer Agenda. 

The Commission will take the following measures: 

(cid:190)  establish  regular  thematic  workshops  between  national  enforcers  and  organise 

training for enforcers and the judiciary 

(cid:190)  strengthen  the efficiency of the CPC-Network and  continue to  promote coordinated 

enforcement actions ("sweeps") 

(cid:190)  assist Member States in ensuring an effective application of the Directive by further 
developing the Guidance document and sharing best practices with Member States  
(cid:190)  develop enforcement indicators, in cooperation with the Member States, specific to 
the  application  of  the  Unfair  Commercial  Practices  Directive,  which  will  detect 
shortcomings and failures that require further investigative and/or corrective action.  

These measures will concentrate on the following key sectors / areas: 

(cid:190)  Travel and transport 

(cid:190)  The digital / on-line markets 

(cid:190)  Environmental claims 

(cid:190)  Financial Services  

(cid:190)  Immovable Property  

In all of these sectors specific consideration will be given in relation to practices which 
target vulnerable consumers, in particular the elderly and minors. 

3.4.  Monitor market developments and raising awareness 

The  Commission  will  closely  monitor  market  developments  to  ensure  that  the  regulatory 
framework continues to provide a high level of protection to consumers in their domestic and 
cross-border purchases.  

A  specific  focus  will  be  given  to  the  suitability  of  the  legal  framework  to  keep  up  with  the 
rapid  development  of  marketing  and  sales  techniques,  products  and  services  in  the  on-line 
world.  

Alongside  strengthened  enforcement,  awareness  raising  initiatives  are  important  in  order  to 
put  consumers  in  a  position  to  properly  assert  their  rights.  In  2013,  as  part  of  the  European 
Year of Citizens, an EU-wide campaign to increase knowledge of consumer rights, including 
under the Unfair Commercial Practices Directive, will be launched in close cooperation with 
all stakeholders, including businesses and consumer associations. 

4. 

CONCLUSIONS  

The  Unfair  Commercial  Practices  Directive  is  proving  to  be  a  valuable  tool  to  increase 
consumer welfare. It has simplified the regulatory environment and helped eliminate obstacles 
to  cross-border  commerce.  Experience  has  shown  the  usefulness  and  flexibility  of  this 

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principle-based and horizontal legislation. The simplified regulatory environment is making it 
easier  for  businesses  to  engage  in  cross-border  activities,  while  enabling  consumers  and 
businesses to increasingly benefit from the untapped potential of the Internal Market. 

The Commission considers that it would be inappropriate to amend the Directive at this stage, 
not least because the enforcement experience in the Member States is still too limited in time 
for such an encompassing body of legislation. The Commission will now focus its attention 
on  the  coherence  of  the  implementation  of  the  Directive,  taking  concrete  actions  to  make 
enforcement work better in key areas to the benefit of consumer confidence and growth. 

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