REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE First Report on the application 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 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’)
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) 139 final 

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

First Report on the application 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 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’) 

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

First Report on the application 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 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’) 

INTRODUCTION 

1. 
This Report1 provides a first assessment of the application of Directive 2005/29/EC on Unfair 
Commercial Practices2 (‘the Directive’ or ‘the UCPD’) in the Member States and evaluates its 
effects. The Report is one of the key initiatives undertaken with a view to implementing the 
European Consumer Agenda.3 

For the purpose of this Report, targeted questionnaires were addressed to Member States and 
a  wide  range  of  stakeholders  in  the  course  of  2011.4  As  regards  the  application  of  the 
Directive  in  the  fields  of  financial  services  and  immovable  property,5  this  Report  relies  on 
data collected on behalf of the Commission through a study conducted in 2011/2012.6 

The UCPD was adopted on 11 May 2005. It seeks to ensure 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. Its principle-based provisions are meant to guarantee that the legislative framework is 
flexible enough to cope with new selling methods, products and marketing techniques. 

The Directive is horizontal in nature and covers the totality of business-to-consumer (‘B2C’) 
transactions whether offline or online, involving both goods and services. 

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This Report accompanies the Commission Communication to the European Parliament, the Council and 
the European 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’. In accordance 
with Article 18 of the UCPD, the Commission must report on the application of the Directive in relation 
to  specific  issues,  such  as  financial  services  and  immovable  property,  and  the  black  list  of  practices 
banned  in  all  circumstances,  as  well  as  on  the  scope for further  harmonisation  and  simplification. As 
provided by Recital 24 of the UCPD, the application of the Directive is assessed in order to ensure that 
barriers to the internal market have been addressed and a high level of consumer protection is achieved. 
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 European Consumer Agenda, Action 3 (Modernisation of the consumer acquis). 
The consultation resulted in 25 responses from Member States (Luxembourg and Malta did not provide 
a response), two responses from Iceland and Norway and 76 responses from stakeholders, including 20 
European  Consumer  Centres  (‘ECCs’), 9  Consumer  Associations  and 47 business  stakeholders  (these 
included  Chambers  of  Commerce,  business  ‘umbrella’  organisations  /  federations  and  self-regulatory 
bodies). 
Based on Article 18 of the Directive, this Report provides an assessment as to the functioning of Article 
3(9) concerning the application of the UCPD in the fields of financial services and immovable property.  
See  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. 

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The general aims of the Directive are to contribute to the completion of the internal market by 
removing  barriers  that  are  due  to  differences  in  the  national  laws  on  unfair  commercial 
practices and to provide a high level of consumer protection. 

2. 

TRANSPOSITION OF THE DIRECTIVE 

2.1. 

Timetable 

The Member States had to publish and adopt their measures transposing the Directive by 12 
June 2007, so that they would come into force at national level by 12 December 2007 at the 
latest. 

There were, however, significant delays in the transposition of the Directive, due mainly to its 
very broad field of application. The full harmonisation character of the Directive, enshrined in 
its  ‘Internal  Market  clause’,7  also  meant  that  Member  States  had  to  carry  out  an  extensive 
review of their national legislation to bring it into line. 
Only a few Member States8 transposed the Directive on time. The last transposition took place 
at the end of 20099 while the majority of national measures were implemented in the course of 
2008 and 2009.10 Action taken by the Commission before the European Court of Justice (the 
‘ECJ’)  resulted  in  the  ECJ  issuing  judgments  against  two  Member  States11  while  other 
proceedings were closed as a result of subsequent notification of the measures.12 

2.2. 

Implementation  approaches  in  the  Member  States  and  characteristics  of  the 
transposition process 

The technical choices made by Member States to implement the UCPD can be grouped in two 
main categories, largely depending on whether the Member States already had legislation on 
unfair  commercial  practices  or  not.  Some  Member  States  have  incorporated  it  into  existing 
laws:  acts  against  unfair  competition  (Germany,  Austria,  Denmark,  Spain),  consumer  codes 
(France,  Italy,  Bulgaria,  Czech  Republic,  Malta),  civil  codes  (the  Netherlands)  or  specific 
existing  acts  (Belgium,  Finland  and  Sweden).  Others  have  adopted  a  new  ad  hoc  law 
transposing  the  UCPD  almost  verbatim  (UK,  Portugal,  Romania,  Hungary,  Cyprus,  Poland, 
Slovenia, Slovakia, Estonia, Ireland, Luxembourg, Latvia, Lithuania and Greece). 

2.3. 

Article 4 – The Internal Market clause 

Article  4  of  the  UCPD,  known  as  the  ‘Internal  Market  clause’,  embodies  the  full 
harmonisation  effect  of  the  Directive  and  prevents  Member  States  from  deviating  from  its 
rules. This feature was confirmed by the ECJ in the ‘Total Belgium’ case and in the context of 
other  preliminary  rulings,13  where  the  Court  has  consistently  held  that  ‘the  Directive  fully 

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See Article 4 of the Directive. 
Belgium, Ireland, Malta, Poland, Slovakia, Slovenia transposed by 12 June 2007. 
Spain. 
Also the three EEA countries, Iceland, Liechtenstein and Norway adopted legislation implementing it. 
See cases: C-321/08 - Commission of the European Communities v Kingdom of Spain, 23 April 2009 
and C-282/08, Commission of the European Communities v Grand Duchy of Luxembourg, 5 February 
2009. 
To  access  the  list  of  national  transposition  measures  please  consult  the  Unfair  Commercial  Practices 
Database  at:  https://webgate.ec.europa.eu/ucp/  or  use  the  link:  http://ec.europa.eu/justice/consumer-
marketing/unfair-trade/unfair-practices/index_en.htm. 
Joined  Cases  C-261/07  and  C-299/07  VTB-VAB  NV  v  Total  Belgium,  and  Galatea  BVBA  v  Sanoma 
Magazines Belgium NV, 23 April 2009; C-304/08 Zentrale zur Bekämpfung unlauteren Wettbewerbs eV 
v  Plus  Warenhandelsgesellschaft  mbH,  14  January  2010;  C-288/10  Wamo  BVBA  v  JBC  NV  and 
Modemakers Fashion NV, order of 30 June 2011; C-126/11 Inno NV v Unizo and others, order of 15 
December 2011. 

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harmonises  those  rules  at  the  Community  level.  Accordingly,  […]  Member  States  may  not 
adopt stricter rules than those provided for in the Directive, even in order to achieve a higher 
level of consumer protection’. 

The full harmonisation aspect has proved the most problematic in implementing the Directive. 
The Internal Market clause has required substantial adaptation of national legal systems to the 
provisions  of  the  Directive.  In  particular,  the  Member  States  had  to  carry  out  extensive 
screening of their national legislation and repeal any provisions which were incompatible with 
the Directive. Such provisions had to do mainly with bans on specific commercial practices 
which were not included in Annex I to the Directive (the ‘Black List’ of practices prohibited 
in all circumstances), especially in the area of sales promotions. 

The Internal Market clause has resulted in a major simplification of the rules on misleading 
advertising  and  unfair  commercial  practices  in  business-to-consumer  transactions  across  the 
EU, by replacing the 27 national regimes with one set of rules, whilst maintaining a high level 
of consumer protection. It was essential to overcome the specific legal barriers caused by the 
fragmented regulation of unfair commercial practices, which gave rise to cost, complexity and 
uncertainty for both businesses and consumers. 

2.4. 

Derogations 

Article  3(9)  of  the  Directive  provides  for  an  important  limitation  on  the  full  harmonisation 
character of the UCPD by stating that ‘in relation to ‘financial services’ […] and immovable 
property, Member States may impose requirements which are more restrictive or prescriptive 
than this Directive in the field which it approximates’. Thus, minimum harmonisation applies 
to  these  two  sectors.  As  Recital  9  explains,  ‘financial  services  and  immovable  property,  by 
reason  of  their  complexity  and  inherent  serious  risks,  necessitate  detailed  requirements, 
including positive obligations on traders’. Consequently, in these sectors, Member States can 
impose rules which go beyond the provisions of the Directive, as long as they comply with 
other EU legislation. 

As  explained  below,  the  consultation  has  shown  that  there  is  no  case  for  removing  this 
limitation, whether in relation to financial services or in relation to immovable property. 

A  second  temporary  derogation  from  the  full  harmonisation  principle  applies  to  national 
provisions  which 
implement  directives  containing  minimum  harmonisation  clauses. 
According to Article 3(5), for a period of six years until 12 June 2013, Member States will be 
able to continue to apply national provisions14 which are more restrictive or prescriptive than 
the  Directive  itself  and  implement  minimum  harmonisation  clauses  contained  in  other  EU 
legislation.15 

Article 3(6) indicates that Member States must without delay notify the Commission of any 
national provisions applied on the basis of Article 3(5). 
Only five Member States claim to have maintained rules under Article 3(5).16 One Member 
State,17  for  instance,  has  notified  provisions  relating  to  television  advertising  for  the 

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In the field approximated by the Directive. 
Examples of directives which contain minimum harmonisation clauses within the field approximated by 
Directive  2005/29/EC  are:  Directive  98/6/EC  on  the  indication  of  the  prices  of  products  offered  to 
consumers,  Directive  97/7/EC  on  distance  contracts,  Directive  85/577/EEC  on  contracts  negotiated 
away  from  business  practices,  Directive  94/47/EC  on  the  purchase  of  the  right  to  use  immovable 
properties on a timeshare basis and Directive 90/314/EEC on package travel. 
Denmark, Finland, Ireland, Latvia and Sweden. 
On 10 March 2008, Denmark notified the provisions relating to television advertising in section 21 of 
Order  No  1368  of  15 December  2005  on  advertising  and  sponsoring  on  radio  and  television.  These 
provisions,  concerning  inter  alia  the  characteristics  of  the  product  advertised,  the  price,  and  level  of 

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protection  of  minors,  implementing  the  Audiovisual  Media  Services  Directive.18  Another 
Member  State  has  failed  to  notify  a  restrictive  measure  concerning  doorstep  selling.19  A 
reluctance  to  repeal  certain  national  measures  (by  12  June  2013)  may  explain  why  few 
Member States have so far made use of Article 3(5). 

The Commission considers that the derogation should not be further extended. Whilst a few 
Member  States  signalled  a  need  for  such  an  extension,  this  need  to  apply  certain  rules  at 
national level can be met by virtue of other EU legislation. 

2.5. 

Relationship between the UCP Directive and EU sectoral legislation 

The  Directive  is  the  general  law  governing  unfair  commercial  practices  in  business-to 
consumer  transactions.  It  covers  all  B2C  commercial  practices,  unless  otherwise  explicitly 
stipulated, such as in the case of conditions of establishment or of authorisation regimes (see 
Article 3(8)). Where sectoral legislation conflicts with the Directive’s general provisions, the 
corresponding  provisions  of  the  lex  specialis  will  prevail.20  Often,  such  conflict  occurs 
because the lex specialis contains more detailed pre-contractual information requirements, or 
stricter  rules  on  the  way  information  is  presented  to  consumers  (see  Recital  10  of  the 
Directive). However, the existence of specific EU rules in a given sector does not exclude the 
application of the Directive: in these cases and in relation to all the aspects not covered by the 
lex specialis, the UCPD complements these sectoral provisions and fills any remaining gaps 
in the protection of consumers against unfair commercial practices.21 

2.6. 

Follow-up to transposition 

The current analysis points to inaccuracies in several Member States related, in a few cases, to 
key concepts of the Directive. In this connection, the Commission services have carried out an 
extensive  transposition  check  and  are  currently  engaged  in  a  structured  dialogue  with  the 
Member States concerned. 

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skills  needed  to  use  the  product,  are  firmly  enshrined  in  Danish  law,  pay  special  attention  to  the 
protection  of  minors,  and  implemented  the  Directive  on  ‘Television  without  Frontiers’  (Council 
Directive 89/552/EEC, now Directive 2010/13/EU on Audiovisual Media Services). 
Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). 
Belgium  has  not  notified  its  national  rules  prohibiting  doorstep  selling  for  products  of  a  value  above 
250 euros. The compatibility of such measures will be assessed by the ECJ in the context of a pending 
case against Belgium. 
Article 3(4) of the Directive clarifies that ‘in case of conflict between the provisions of this Directive 
and other Community rules regulating specific aspects of unfair commercial practices, the latter shall 
prevail and apply to those specific aspects.’ 
See  Guidance  document  p.  18-19.  For  example,  the  Air  Services  Regulation  (Regulation  (EC)  No 
1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules on 
the operation of air services in the Community) contains specific provisions on the price information to 
be made available to the general public. According to Article 23 of the Regulation, in addition to the 
final  price,  which  must  include  all  applicable  taxes,  charges,  surcharges  and  fees,  air  carriers  should 
also  provide  a  breakdown  of  the  final  price.  Therefore,  in  respect  of  pre-contractual  information 
regarding  prices  for  air  fares,  these  more  specific  provisions  will  apply.  The  Directive’s  provisions 
come into play to prohibit commercial practices which are likely to deceive the average consumer (such 
as ‘bait’ advertising and marketing of air fares), and practices which constitute aggressive conduct (such 
as onerous and disproportionate non-contractual barriers imposed on consumers who wish to exercise a 
contractual right to terminate a contract). 

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3. 

THE APPLICATION OF THE DIRECTIVE 

3.1. 

Uniform Application 

3.1.1.  The role and case law of the European Court of Justice 

The role of the ECJ in making sure that EU legislation is interpreted and applied in the same 
way  in  all  the  Member  States  has  been  crucial  in relation  to the  UCPD. Its  judgments have 
proved  extremely  valuable  in  clarifying  general  matters  concerning  the  relationship  of  the 
Directive with national legislation as well as more specific issues related to the interpretation 
of some of its substantive provisions. The Commission, for its part, acts as amicus curiae in 
the proceedings before the ECJ. 

Since  2009,  the  ECJ  has  pronounced  on  several  references  for  a  preliminary  ruling, 
confirming  in  particular  the  full  harmonisation  character  of  the  Directive  and  the  fact  that 
Member States cannot retain national rules which go beyond its provisions. 

In  this  connection,  the  Court  has  ruled  that  the  following  national  provisions  are  not 
compatible with the Directive: 

- A general prohibition on combined offers: 

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• 

Joined  cases  C-261/07  and  C-299/07  (Total  Belgium,  23  April  2009)  concerned  a 
fuel  company  offering  free  breakdown  services  with  every  purchase  of  fuel  and  a 
company  which  had  published  a  magazine  containing  a  promotional  voucher  for  a 
lingerie shop; 

Case  C-522/08  (Telekomunikacja  Polska,  11  March  2010)  concerned  a  telecom 
company which had made the conclusion of a contract for the provision of broadband 
internet  access  services  contingent  on  the  conclusion  of  a  contract  for  telephone 
services. 

- A general prohibition on commercial practices under which the participation of consumers 
in a prize competition or lottery is made conditional on the purchase of goods or services: 

• 

Case  C-304/08  (Plus  Warenhandelsgesellschaft,  14  January  2010)  concerned  a 
promotional  campaign  launched  by  a  company  whereby  consumers  were  invited  to 
purchase goods in order to obtain a certain number of bonus points permitting them 
to participate in the draws of a national lottery. 

-  A  general  prohibition  on  sales  with  bonuses,  which  is  not  only  designed  to  protect 
consumers but also pursues other objectives: 

• 

Case C-540/08 (Mediaprint, 9 November 2010) concerned a daily newspaper which 
had  organised  a  competition  in  which  consumers  could  participate  by  means  of  a 
voucher  contained  in  the  newspaper.  In  this  case,  the  Austrian  government  had 
argued that the national provision did not fall within the scope of the Directive as it 
was mainly aimed at maintaining the pluralism of the press in Austria; 

-  A  general  prohibition  on  announcements  of  price  reductions  during  the  period  preceding 
sales,  in  so  far  as  the  provision  in  question  seeks  to  protect  the  economic  interests  of 
consumers: 

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Case  C-288/10  (Wamo,  30  June  2011)  concerned  a  company  which  had  sent  an 
invitation to some of its customers for a private sale organised two weeks before the 
sales period. 

Case C-126/11 (Inno, 15 December 2011) concerned a company which had offered a 
loyalty  card  allowing  customers  to  benefit  from  several  promotional  actions, 

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including price reductions during the pre-sales period. It is worth noting that in this 
case,  the  ECJ  considered  that  a  national  rule  does  not  fall  within  the  scope  of  the 
Directive  if  its  only  aim,  as  argued  by  the  referring  court,  is  the  protection  of 
competition.22 

- A prohibition to announce "clearance sales" without obtaining the prior authorisation of the 
competent local administrative authority: 

• 

Case  C-206/11  (Köck,  17  January  2013)  concerned  a  trader  in  Austria  who 
announced  in  a  newspaper  a  ‘total  clearance’  of  the  products  in  his  shop  without 
applying  for  an  administrative  authorisation,  as  required  by  national  law.  The  ECJ 
ruled that a commercial practice not covered by Annex I of the Directive cannot be 
prohibited  on  the  sole  ground  that  the  practice  has  not  been  the  subject  of  prior 
authorisation by the competent administrative authority, without an assessment of the 
unfairness of the practice in question against the criteria set out in Articles 5 to 9 of 
the UCPD.  

In  the  Case  C-122/10  (Ving  Sverige,  12  May  2011),  the  ECJ  clarified  the  concept  of 
‘invitation to purchase’, as defined in Article 2(i) of the Directive. It considered, for example, 
that an invitation to purchase exists as soon as there is visual reference to the product and the 
price, without the immediate availability of an actual ‘mechanism’ to purchase. The ECJ also 
stated  that  the  Directive  does  not  rule  out  the  use  of  entry-level  prices,  as  long  as  the 
information  so  provided  meets  the  requirements  of  the  Directive,  taking  into  account  the 
circumstances of the real case. The matter concerned a travel agency selling holiday products, 
which  had  put  a  commercial  communication  in  a  daily  newspaper  with  only  limited 
information  on  the  trip  advertised.  In  this  case,  the  ECJ  followed  the  approach  of  the 
Commission  services  in  the  Guidance  document,  which  advocated  a  wide  notion  of  the 
invitation to purchase.23 

In  the  Case  C-559/11  (Pelckmans  Turnhout  NV,  4  October  2012),  the  ECJ  clarified  that  a 
national provision which does not aim at protecting consumers does not fall in the scope of 
the Directive. The case concerned the compatibility, with the Directive, of a Belgian provision 
prohibiting  a  trader  from  opening  his  shop  seven  days  a  week,  therefore  requiring  that  the 
trader  chooses  a  weekly  closing  day  for  the  shop.  The  ECJ  considered  that  such  provision 
only aims to protect the interests of workers and employees in the distribution sector and does 
not intend to protect consumers. 

In the Case C-428/11 (Purely Creative e.a., 18 October 2012), the ECJ was for the first time 
called on to interpret a provision of Annex I to the Directive, and in particular point 31, which 
prevents  traders  from  giving  consumers  the  impression  that  they  have  already  won  a  prize, 
when claiming such prize is subject to paying money or incurring a cost. In England, several 
companies had distributed mailings and inserts, including scratch-cards that were placed into 
newspapers  and  magazines,  informing  the  recipients  that  they  had  won  a  prize.  In  order  to 
claim this prize, the winner had to either call a premium rate number, send a text message or 
apply  by  post.  The  ECJ  considered  that  such  practices  are  prohibited  even  when  the  cost 
imposed on the consumer is minimal (as in the case of a stamp) compared with the value of 

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‘[…] une disposition nationale telle que celle en cause au principal n’est pas susceptible de relever du 
champ d’application de la directive sur les pratiques commerciales déloyales si elle se limite seulement, 
comme  le  considère  la  juridiction  de  renvoi,  à  réglementer  les  relations  concurrentielles  entre 
commerçants  et  ne  poursuit  pas  des  finalités  tenant  à  la  protection  des  consommateurs.’  (case  C-
126/11, Inno, recital 29). 
See moreover Section 3.3.4. on Invitation to Purchase and price information requirements. 

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the  prize,  and  regardless  of  whether  the  payment  of  such  costs  procures  any  benefits  to  the 
trader. 

Three more references for a preliminary ruling are currently pending before the ECJ: 

• 

• 

• 

Case C-435/11 (CHS Tour Services) concerning the interpretation of Article 5 of the 
Directive,  in  particular  as  to  whether  the  UCPD  requires  a  separate  examination  of 
the requirement of professional diligence (set out in Article 5(2) (a)) of the Directive) 
when assessing a real case involving misleading actions or omissions; 

Case C-265/12 (Citroën Belux NV) referring to the compatibility, with the Directive 
(in  particular  its  Article  3(9)),  of  a  Belgian  provision  which  prevents  traders  from 
making combined offers, when at least one component is a financial service; 

Case  C-281/12  (Trento  Sviluppo  Centrale  Adriatica)  in  which  the  referring  court 
wonders  whether  the  UCPD  requires,  for  a  violation  to  be  established  that,  in 
addition to the misleading conduct, a separate evaluation of the material distortion of 
consumer economic behaviour be performed. 

3.1.2. 

Initiatives taken by the Commission 

The  Commission  has  been  taking  measures,  since  the  very  beginning  of  the  transposition 
process,  to  help  national  authorities  and  courts  achieve  uniform  implementation  and 
consistent  enforcement  of  the  Directive.  This  is  a  particularly  difficult  objective  in  a  field 
which is characterised by considerable differences in national policy, style and enforcement 
techniques. 

3.1.3.  The UCPD Guidance 

In December 2009, the Commission services issued a Guidance document on the application 
of  the  Directive24  to  develop  a  common  understanding  and  convergence  of  practices.  This 
document, available in 22 official EU languages, has helped to clarify some key concepts and 
provisions  perceived  as  problematic.  It  includes  practical  examples  showing  how  the 
Directive  works.  Despite  the  fact  that  this  document  has  no  formal  legal  status  (binding 
nature), it has been widely used including in the context of proceedings before the ECJ,25 as 
well  as  by  national  courts  and  authorities  in  their  assessment  of  individual  cases.  The 
Guidance  was  conceived  as  a  living  document  to  be  updated  on  a  regular  basis  as  the 
knowledge of unfair commercial practices grows. 

3.1.4.  The UCPD Legal Database 
In  July  2011,  the  Commission  launched  an  online  legal  database  (the  ‘UCPD  Database’).26 
The development of this database started in 2008, together with the Guidance, to support the 
uniform application and adequate / effective enforcement of the Directive. 

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26 

Guidance on the application /implementation of Directive 2005/29/EC on Unfair Commercial Practices 
(SEC(2009)  1666,  Commission  Staff  Working  Document)  3  December  2009  -  http://wcmcom-ec-
europa-eu-wip.wcm3vue.cec.eu.int:8080/justice/consumer-marketing/unfair-trade/unfair-
practices/index_en.htm. 
See  for  instance  the  Advocate  General  conclusions  in  case  C-122/10  Konsumentombudsmannen  KO 
contre Ving Sverige AB, par. 30, 40 and footnote n. 13. 
See  https://webgate.ec.europa.eu/ucp/public/  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), Action 9: Legal and technical expertise, 
including  studies,  for  the  monitoring  and  assessment  of  the  transposition,  implementation  and 
enforcement of consumer protection legislation by Member States, notably Directive 2005/29/EC. This 
also includes the development and maintenance of easily and publicly accessible databases covering the 
implementation of Community consumer protection legislation. 

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The legal database is very comprehensive and allows the public to access in a user-friendly 
manner the laws and jurisprudence of the Member States related to the Directive, as well as 
other  useful  material  such  as  any  relevant  academic  work.  It  currently  contains  about  330 
legal  articles,  400  cases27  and  25  other  items  (such  as  studies  or  guidelines  adopted  by 
national  enforcement  authorities).  The  information  included  in  the  database  is  arranged  in 
sections and can be filtered by reference to specific Articles of the Directive, keywords, case 
law,  and  legal  literature.  All  sections  are  interlinked  and  also  allow  for  comparisons  across 
different  Member  States.  The  country  sections  always  include  an  overview  of  the  national 
enforcement system. 

The Commission is still working on the development of the UCPD database, which is meant 
to  be  regularly  updated  with  new  case  law,  legal  articles  and  other  material.  The  idea  is  to 
eventually create a new Consumer Law Database by merging the UCPD database with the EU 
Consumer  Law  Compendium  database.28  The  Commission  services  are  currently  evaluating 
the available options to ensure an effective link between the UCPD database and the E-Justice 
portal.29 

3.2. 

The scope of application of the Directive 

The  Directive  has  a  very  broad  scope  of  application,  as  laid  down  by  the  definition  of 
(business-to-consumer) commercial practices in its Article 2(d): ‘any act, omission, course of 
conduct or representation, commercial communication including advertising and marketing, 
by a trader, directly connected with the promotion, sale or supply of a product to consumers’. 
Product  is  described  as  ‘any  goods  or  service  including  immovable  property,  rights  and 
obligations’.30  The  Directive  applies 
to  virtually  all  business-to-consumer  (‘B2C’) 
transactions and  in all  sectors. In addition, it applies  not only at the advertising / marketing 
stage of a transaction but also ‘…during and after a commercial transaction in relation to a 
product’.31  It  is,  however,  only  concerned  with  protection  of  the  economic  interests  of 
consumers in relation to measures aiming at or resulting in the classification of a commercial 
practice  as  unfair,  to  the  exclusion  of  other  interests  such  as  health  and  safety  or  the 
environment. The Member States remain free to extend the scope of the UCPD or to regulate, 
in  conformity  with  other  EU  legislation,  other  types  of  relations.  They  are  also  free  to 
determine the effect of unfair practices on the validity, formation or effect of a contract, given 
that the UCPD does not harmonise contract law.32 

3.2.1.  Need for extension beyond business-to-consumer transactions 

Extension  of  the  Directive  beyond  B2C  transactions  has  been  raised  mainly  in  relation  to 
three types of situations. Excluded from the scope of the Directive are transactions between 
businesses (‘B2B’), between consumers (‘C2C’) or when consumers sell or supply a product 
to a trader (‘C2B’). While Member States remain free to regulate these relations, most of them 
have chosen to implement the UCPD by keeping to its original scope. 

Business-to-business transactions 

27 

28 
29 
30 
31 
32 

The database currently contains (as of May 2012) summaries of 158 administrative decisions and 202 
court decisions (including 63 national Supreme Court decisions).  
http://www.eu-consumer-law.org/index.html. 
https://e-justice.europa.eu/home.do. 
See Article 2 (c) of the Directive. 
See Article 3 (1) of the Directive. 
See Article 3 (2) of the Directive. 

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Only  four  Member  States  currently  apply,  with  some  modulation,  the  UCPD  also  to  B2B 
relations.33 The extension, at EU level, of the scope of the UCPD to B2B relations has been 
mooted  in  the  past  by  some  stakeholders  mainly  with  a  view  to  solving  the  problem  of  the 
practices  of  Misleading  Directory  Companies  affecting  mainly  small  enterprises  and 
independent professionals. Such practices are currently forbidden by Directive 2006/114/EC 
on  misleading  and  comparative  advertising  (‘the  MCAD’).  In  its  recent  Communication  on 
the  overall  functioning  of  the  MCAD,  the  Commission  concluded  that  the  available  cross-
border enforcement means should be strengthened and the current legal framework reviewed 
in order to better combat such schemes.34 

Consumer-to-business relations 
National  enforcers35  have  signalled  cases  where  consumers  were  the  victims  of  unfair 
commercial practices while selling products to traders. Cases have been reported where, for 
example,  consumers  have  sold  their  antiques  and  jewellery  (especially  gold)  to  traders  and 
been misled by the representations made by the traders in relation to the characteristics and/or 
value  of  the  items.  Only  a  few  Member  States36  would  want  the  Directive  to  be  extended 
while  the  remainder  do  not  support  an  extension.  One  Member  State,37  which  applies  the 
Directive  by  keeping  to  its  original  scope,  has  suggested  that  an  extensive  approach  to 
interpretation of the Directive be taken38 instead of proceeding to a regulatory change at EU 
level. 

Consumer-to-consumer relations 

The fast development of Internet platforms has raised the issue of whether protection should 
be strengthened in relation to C2C transactions. Enforcement experience shows that the main 
problem  is,  in  reality,  caused  by  traders  disguised  as  consumers  and  hiding  their  real 
qualification/commercial intent. Such practices are already forbidden by the Directive which, 
in its Annex I, point 22, bans the practice of ‘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.’39 Preventing such practices is, therefore, more a 
question of enforcement rather than a gap in the UCPD. 

To conclude, the results of the consultation show that the vast majority of Member States and 
stakeholders40 do not support an extension of the Directive, whether to B2B transactions or to 
C2B  or  C2C.  The  Commission  considers  that  there  is  currently  no  case  for  such  extension. 

33 

34 

35 
36 
37 
38 
39 
40 

These are Germany, Austria, France and Sweden. However, in Germany only Annex I of the Directive 
(‘the  Black  List’),  while  in  France  exclusively  Article  6  and  Annex  I  (limited  to  the  misleading 
practices part), apply to B2B relations. 
See  Commission  Communication  to  the  European  Parliament,  the  Council,  the  Economic  and  Social 
Committee and the Committee of the Regions on ‘Protecting businesses against misleading practices 
and  ensuring  effective  enforcement’,  Review  of  Directive  2006/114/EC  concerning  misleading  and 
comparative advertising, of 27 November 2012 (COM(2012) 702 final). 
The Office of Fair Trading in the UK. 
Estonia, Ireland, Latvia and Romania. 
The UK. 
E.g. by clarification in the Commission services' Guidance document. 
See also Article 6 (1) (c) and (f) of the Directive. 
Some Member States (e.g. Italy and France) and stakeholders have claimed that they would support an 
extension  only  to  solve  very  specific  problems  such  as  the  activities  of  the  Misleading  Directory 
Companies.  Romania  considers  that  extending  the  UCPD  to  B2B  would  create  a  more  coherent 
approach in relation to business practices which target both businesses and consumers. The Netherlands 
would like to extend the UCPD to the extent necessary to protect businesses from the problem of ‘fake 
invoices’. Germany, Austria and Sweden, who already fully apply the provisions of the Directive also 
to B2B transactions, would like businesses to enjoy the same level of protection as consumers across 
the EU.  

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While the specific B2B problem of Misleading Directory Companies will be addressed by the 
ongoing  review  of  the  MCAD,  for  other  types  of  relations  the  Member  States  are  free  to 
regulate the area concerned to address national specificities and needs. 

Sales Promotions 

3.2.2. 
The  issue  of  sales  promotions started to be debated41 after the Commission’s proposal for a 
Regulation on Sales Promotions42 was withdrawn in 2006 since the Member States had failed 
to  reach  an  agreement.  The  proposal  contained  a  number  of  information  requirements 
designed  to  ensure  that  commercial  communications  relating  to  sales  promotions  are 
transparent and that interested recipients would be able to obtain all the relevant information 
announced therein. 

The UCPD provides protection from unfair practices in the field of sales promotions. Article 6 
(1) (d) prevents traders from misleading consumers on ‘the price or the manner in which the 
price is calculated, or the existence of a specific price advantage’. Prohibitions laid down in 
Annex I target specific promotional practices such as bait advertising (point 5), special offers 
(point  7),  prize  promotions  (point  19),  prize  competitions  (point  31),  and  use  of  the  word 
‘free’ (point 20). 
In  the  ‘Total  Belgium’  case,43  the  ECJ  confirmed  in  particular  that,  because  of  the  full 
harmonisation character of the Directive, Member States cannot retain national rules on sales 
promotions which go beyond the provisions of the Directive. 

A few Member States and stakeholders have argued that the sudden repeal of certain national 
rules  on  sales  promotions  may  adversely  affect  the  protection  of  consumers  against 
misleading promotional sales at national level.44 They take the view that some of the existing, 
more  stringent  national  rules  (such  as  those  which  relate  to  a  ‘reference  price’  to  calculate 
whether a certain announced discount is truthful or not) would be of great value to consumers 
and enforcers, although they are today legally incompatible with the Directive.45 

The feedback from the consultation shows that some Member States and stakeholders would 
be  in  favour  of  making  legislative  changes  in  this  area,  either  in  the  form  of  further 
regulation46 or by excluding sales promotions from the scope of the UCPD.47 The remainder 
of  the  Member  States  explicitly  reject  the  possibility  of  any  further  regulation  of  this  area, 
while some others48 would welcome more guidance from the Commission on the topic. Out of 
the  other  stakeholders,  only  two  business  representatives,49  BEUC,  one  national  consumer 

41 
42 
43 

44 

45 

46 
47 
48 
49 

See for instance EP questions E-5539/08, E-010017/2010, E-1704/2011. 
COM(2001) 546 final, 2.10.2001, amended proposal COM(2002) 585 final, 25.10.2002. 
See also C-304/08 Plus Warenhandelsgesellschaft (Preliminary ruling – Germany), 14 January 2010; C-
540/08  Mediaprint  Zeitungs  (Preliminary  ruling  –  Austria),  9  November  2010;  C-522/08 
Telekomunikacja Polska (Preliminary Ruling – Poland), 11 March 2010. 
Some national enforcement agencies consider that the absence of such detailed rules would create legal 
uncertainty  and  make  enforcement  too  burdensome/inefficient  (under  the  UCPD  it  needs  to  be 
demonstrated on a case by case basis that a promotional sale is misleading). 
Six  Member  States  (Belgium,  Denmark,  Finland,  France,  Ireland,  Latvia)  have  already  (partially) 
modified their legislation in relation to sales promotions in order to comply with the Directive and with 
the case law of the Court of Justice. At the moment, 13 Member States still maintain more restrictive 
rules than the UCPD, either in relation to price reductions (Belgium, Bulgaria, Estonia, Finland, France 
Latvia,  Poland,  Portugal  and  Spain)  or  as  regards  commercial  lotteries  (Austria,  Denmark,  Finland, 
France, Germany and Luxembourg). Similar rules exist in Iceland and Norway. 
France, Germany, Ireland, Latvia and Spain. 
Belgium, Denmark, Spain (and Norway). 
Slovakia, Poland, Bulgaria, Netherlands, United Kingdom. 
The European Brand Association and the Federal Chamber of Labour in Austria. 

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organisation50 and one ECC51 call for further regulation and stress that the absence of detailed 
rules  generates  legal  uncertainty,  whilst  the  Danish  Chamber  of  Commerce  supports  the 
exclusion of sales promotions from the scope of the Directive to give Member States a wider 
national margin of manoeuvre. 

The Commission believes that most of the concerns raised by Member States and stakeholders 
can  be  addressed  through  measures  aiming  at  increasing  legal  certainty  and  uniform 
application of the Directive in this field. Further development of the Guidance document can 
be one way to achieve this objective. 

However, the Commission will continue to closely monitor the application of the Directive in 
this area and consider legislative measures in the future if such a need arises. 

3.3. 

Substantive provisions of the Directive 

This part of the Report provides an outline of the substantive provisions of the Directive (in 
particular Articles 5 to 9 and Annex I) and of the main issues which have emerged in relation 
to their application in the Member States. 

3.3.1.  The notion of professional diligence 

Article 5(2) is the ‘general clause’ of the UCPD, as it generally prohibits unfair commercial 
practices. It provides for two cumulative criteria for assessing whether a commercial practice 
should be deemed unfair, namely: 

• 

• 

if it is contrary to the requirements of ‘professional diligence’, 

and it materially distorts or is likely to materially distort the economic behaviour of 
the average consumer. 

Professional diligence is defined as the ‘standard of special skill and care which a trader may 
reasonably  be  expected  to  exercise  towards  consumers,  commensurate  with  honest  market 
practice  and/or  the  general  principle  of  good  faith  in  the  trader’s  field  of  activity’.  This 
notion  encompasses  principles  which  were  already  well-established  in  the  laws  of  the 
Member States, such as ‘honest market practice’ and ‘good faith’, with additional relevance 
being given to the normative values specifically applying in a given field of business activity. 

The concept of professional diligence has  been correctly  transposed in most of the Member 
States.  It  appears  that  a  few  Member  States  have  instead  maintained  the  notions  of  ‘good 
practice’  or  ‘good  market  practice’.52  In  this  connection,  the  Commission  is  currently  in 
contact with the Member States concerned to make sure that these concepts do not lead to a 
more restrictive interpretation than required by the UCPD. 

One issue raised by some national enforcers was whether, in order to penalise a trader for a 
breach  of  Articles  6  to  9  of  the  UCPD,  it  had  to  be  demonstrated  that  the  conduct  was  in 
breach of ‘professional diligence’. The Commission considers that there is no such need and 
that  professional  diligence  is  automatically  violated  in  the  event  of  a  misleading  action, 
omission  or  aggressive  practice.  By  contrast,  Article  5  can  be  applied  as  a  stand-alone 
provision, as a ‘safety net’, to make sure that any unfair practice which is not caught by the 
remainder of the Directive can be penalised.53 

50 
51 
52 
53 

CLCV: Consommation Logement Cadre de Vie, France. 
The Irish ECC. 
E.g. Poland, Denmark and Sweden. 
An  example  of  this  can  be  found  in  a  case  where  a  national  enforcer  considered  that  the  practice  of 
interrupting  the  water  supply  without  any  prior  communication  contravened  the  requirement  of 
professional  diligence.  The  authority  took  the  view,  taking  into  account  the  relevance  of  the  water 

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Following  a  recent  request  for  a  preliminary  ruling,54  the  opinion  of  the  ECJ  on  whether  a 
separate examination of the requirement of professional diligence is necessary when assessing 
unfair commercial practices (UCPD Articles 6 to 9), is currently pending. 

3.3.2.  Protection of vulnerable consumers 

Article  5(3)  provides  for  specific  protection  of  consumers  who  are  particularly  vulnerable 
because of their mental or physical infirmity, age or credulity, if the commercial practice in 
question  affects  their  economic  behaviour  in  a  way  which  the  trader  could  reasonably  be 
expected to foresee. 

A  specific  category  of  vulnerable  consumers,  children,  benefit  from  additional  protection 
through  Annex  I,  which  specifically  prohibits  in  point  28  the  practice  of  ‘[i]ncluding  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’. 

The  feedback  from  the  consultation  has  not  signalled  significant  problems  in  relation  to 
vulnerable  consumers.  The  UK  is  not  calling  for  a  revision  but  states  that,  if  the  Directive 
were to be reviewed, then it may be worth adding provisions to specifically protect also the 
elderly  from  certain  aggressive  practices.  Denmark  points  out  that  frequent  aggressive 
practices target children in the field of online games. Only two Member States support further 
regulation  to  improve  contractual  protection  for  children,  which  is  not  an  issue  that  can  be 
addressed by the UCPD.55 

The experience and data gathered show that further efforts should be made to strengthen the 
enforcement  of  the  UCPD  in  relation  to  vulnerable  consumers,  such  as  elderly  persons, 
children/teenagers  and  other  categories  of  citizens  who  find  themselves  in  a  situation  of 
weakness.56  
The  ‘Sweep’57  conducted  in  2008  by  national  enforcers  in  the  framework  of  the  CPC 
regulation showed, for instance, that more than half of the investigated websites specifically 
targeted  teenagers  and  children.  After  18  months  of  investigation  at  national  level,  70 %  of 
those websites were corrected or closed. The outcome of the first phase of the 2012 sweep on 
digital  content  revealed  that  minors  are  still  targeted  by  web-sites,  which  do  not  appear  to 
comply  with  consumer  protection  rules,  and  that  they  are  frequently  lured  into  purchasing 
items related to supposedly free games.58 

54 
55 

56 

57 
58 

supply service, that the trader was expected to attain a higher degree of professional diligence and that 
he  should  have  adopted  specific  measures  prior  to  the  interruption  of  the  water  supply.  Italian 
Competition  Authority  (AGCM),  decision  of  12  March  2009  PS  166  –  Acea  Distacco  fornitura 
d’acqua. 
C 435/11 CHS Tour Services. 
Denmark  and  the  Netherlands  refer  to  enhancing  the  protection  of  vulnerable  consumers  through 
regulation but without suggesting specific solutions / options. 
As  outlined  in  the  European  Consumer  Agenda,  it  must  be  ensured  that  vulnerable  consumers  are 
protected from the risks deriving from the effects of the economic crisis, the ageing of the population, 
and  the  increased  complexity  of  digital  markets,  together  with  the  difficulty  some  consumers  may 
encounter in mastering the digital environment. 
See Section 4 of this Report on Enforcement. 
The ‘Sweep’ conducted in 2008 targeted websites selling ringtones, wallpapers and other mobile phone 
services.  301  websites,  out  of  more  than  500  websites  checked  during  this  exercise,  were  found  to 
seriously  breach  EU  consumer  law.  And  more  than  half  of  these  specifically  targeted  teenagers  and 
children.  The  three  main  problems  reported  were:  unclear  pricing,  failure  to  provide  complete 
information, and misleading advertising (in particular, falsely advertising ringtones as ‘free’ when the 
See 
consumer 

subscription). 

paying 

enters 

into 

fact 

in 

a 

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3.3.3.  Article 6 on misleading actions 

Under Article 6 of the Directive a misleading action occurs when a practice misleads through 
the  information  it  contains  or  the  deceptive  presentation  thereof,  and  causes  or  is  likely  to 
cause  the  average  consumer  to  take  a  different  transactional  decision  than  he  or  she  would 
have  taken  otherwise.  This,  together  with  Article  7  on  misleading  omissions,  is  by  far  the 
most frequently used provision for national enforcement purposes. 

The  feedback  from  the  consultation  shows  that  Member  States  have  so  far  not  encountered 
specific problems in applying Article 6. The most frequently reported practices mentioned by 
respondents  to  the  consultation  involve  untruthful  information  on  the  main  characteristics 
and/or  on  the  price  of  the  product  or  service  offered  for  sale  in  the  areas  of  internet  and 
telecommunication services (e.g. broadband speed), financial services  (e.g.  consumer credit, 
life insurance), tourism (e.g. accommodation services including credit card fees in respect of 
hotels, timeshare and related products), air transport and e-commerce. 

One  recent  example  of  the  application  of  Article  6(1)(g)  (which  forbids  traders  to  mislead 
consumers about their rights established in other legislation) is particularly interesting since it 
concerned a practice with EU-wide impact. A leading market player in electronic devices was 
fined  by  a  national  enforcer  for  offering  consumers  a  paying  commercial  warranty  which 
included services to which they are already entitled for free by law.59 

The protection provided by Article 6 is wide-ranging and has been invoked for instance even 
for  politically  sensitive  issues  concerning  trade,  as  in  the  case  of  products  imported  from 
territories whose national sovereignty is disputed and for which there is a risk that consumers 
would be misled on the actual geographical or commercial origin of the product, in possible 
breach of Article 6(1)(b). 
One  issue  which  has  been  vigorously  raised  by  an  industry  association60  concerns  the 
suitability  of  Article  6(2)  and  6(2)(a)  to  penalise  ‘copycat  packaging’.  ‘Copycat  packaging’ 
refers to the practice of designing the packaging of a product (or its ‘trade dress’ or ‘get-up’) 
to give it the general ‘look and feel’ of a competing well-known brand. Copycat packaging is 
distinct from counterfeiting as normally it does not involve copying trade marks. The problem 
has  affected  countries  where  the  remedies  against  unfair  competition  appear  not  to  be 
satisfactory and competitors regard the UCPD as a possible tool for starting legal action. The 
Commission services have already addressed this issue in the 2009 Guidance document. The 
Commission will support stronger enforcement action on this matter whenever the practices at 
issue mislead consumers. 

http://ec.europa.eu/consumers/enforcement/sweep/digital_content/index_en.htm  for  the  results  of  the 
first phase of the 2012 Sweep on Digital Content. 
Decision  of  the  Italian  Antitrust  Authority  (AGCM)  PS7256  –  Comet-Apple  Prodotti  in  Garanzia 
Provvedimento n. 23193, 27 December 2011 – The company under investigation offered a commercial 
warranty  whose  scope  included  services  to  which  consumers  are  already  entitled  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 guarantees (i.e. 2 years of legal guarantee vis-à-vis the seller for 
lack of conformity). The Commission has supported the efforts of consumer associations by raising this 
matter  in  the  context  of  the  CPC-Network  of  national  enforcement  bodies  and  by  writing  (in  a  letter 
from Vice-President Reding of 21 September 2012) to all EU Ministers in charge of consumer affairs, 
in  order  to  ensure  a  coordinated  enforcement  approach  where  a  recurring  problem  arises  in  different 
Member States.  
AIM (The European Brands Association). . 

59 

60 

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3.3.4.  Article 7(4) Commercial offers and Price Information Requirements 

Traders  may  choose  whether  to  include  the  price  in  their  advertising.  However,  all 
commercial  communications  that  include  the  price  qualify  as  ‘invitation  to  purchase’  under 
the UCPD61: for those, the Directive obliges traders, by virtue of its Article 7(4), to comply 
with a number of specific information requirements. 

The invitation to purchase is indeed a critical moment in the consumer’s decision-making and 
a  typical  way  of  advertising  and  offering  products  and  services  to  consumers,  also  in  the 
online world. By its nature, it is a direct and immediate form of product promotion, triggering 
a more impulsive reaction from consumers and thus exposing them to higher risks. The aim of 
the provision in Article 7(4) is hence to make sure that, whenever traders make commercial 
offers to consumers, they make available simultaneously, in an intelligible and unambiguous 
manner,  enough  data  and  do  not  mislead  them  by  omitting  important  information.  These 
requirements concern: the main characteristics of the product, the geographical address of the 
trader, the total price, the arrangements for payment and delivery, performance and complaint 
handling  policy,  and  the  existence  of  the  right  of  withdrawal  or  cancellation,  if  applicable. 
They  should  be  read  in  conjunction  with  the  information  requirements  contained  in  the 
Consumer Rights Directive62 and in Article 5 of the E-commerce Directive.63 

The Commission services, in the Guidance document, advocate a wide notion of invitation to 
purchase  with  flexible  and  proportionate  application  of  the  information  requirements.  They 
maintain, however, that a ‘mechanism’ to purchase (e.g. the possibility to proceed to an online 
booking) is not necessary to trigger the information requirements.64  
The ECJ, in a preliminary ruling,65 followed this approach and confirmed that ‘an invitation 
to purchase exists […] without it being necessary for the commercial communication also to 
offer an actual opportunity to purchase the product or for it to appear in proximity to and at 
the  same  time  as  such  an  opportunity’.  The  dispute  involved  the  Swedish  Consumer 
Ombudsman and a travel agency (Ving) selling throughout Sweden, also through the Internet, 
holiday products. In response to the question whether Ving had indicated the product’s main 
characteristics  to  an  extent  appropriate  to  the  medium  and  the  product  the  ECJ  ruled  that, 
while it was up to the national court to make an assessment in concreto, ‘a verbal or visual 
reference to the product makes it possible to meet the requirement relating to the indication of 
the product’s characteristics’ and that a reference to the trader’s website may be used under 
certain circumstances to provide certain information on the product’s main characteristics. 

61 
62 

63 

64 

65 

See UCPD Article 2(i). 
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer 
rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament 
and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European 
Parliament and of the Council. 
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). 
The main initial concern raised by stakeholders during the transposition stage of the Directive was that 
a  rigid  (‘check-list’  type  of)  approach  in  the  application  of  these  requirements  would  result  in  a 
disproportionate burden on traders and advertisers. The invitation to purchase being a new concept, it 
was  not  clear,  for  instance,  to  what  extent  the  display  of  the  ‘main  characteristics’  would  be  found 
appropriate in relation to the medium used for the advertising and the product concerned (see Article 
7(4)(a)). The World Federation of Advertisers was therefore keen on restricting the application of the 
information requirements only when, together with the invitation to purchase, there was made available 
to the consumer a ‘mechanism’ to make a purchase. 
In Case C-122/10, Konsumentombudsmannen v Ving Sverige AB, 12 May 2011. 

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Article 7(4) (c) of the UCPD specifically requires traders to display the (final) price inclusive 
of  all  applicable  taxes  or,  when  the  price  cannot  reasonably  be  calculated  in  advance,  the 
manner  in  which  the  price  is  calculated.  In  Ving  Sverige  the  ECJ  ruled  that  including  an 
‘entry-level price’ in an invitation to purchase does not in itself constitute an infringement of 
the UCPD provided that, in the light of all the facts and circumstances of the individual case 
including  the  nature  and  characteristics  of  the  product  and  the  commercial  medium  of 
communication  used,  such  ‘entry-level’  price66  enables  the  consumer  to  take  an  informed 
decision. 
The  2008  Regulation  on  Air  Services67  complemented  the  UCPD  by  adding  a  number  of 
provisions to ensure that the price of air tickets is transparent during the booking process and 
in  advertising.  In  particular,  it  specifies  that  ‘the  final  price  to  be  paid  shall  at  all  times  be 
indicated  and  shall  include  the  applicable  air  fare  or  air  rate  as  well  as  all  applicable  taxes, 
charges,  surcharges  and  fees  which  are  unavoidable  and  foreseeable  at  the  time  of 
publication.’  The  recently  adopted  Directive  on  Consumer  Rights68  contains  provisions  on 
pricing and charges which apply also to the air transport sector. 
While there is a general consensus that the advertised price should include, from the outset,69 
all  applicable  fees  and  charges,  the  feedback  received  from  several  stakeholders70  suggests 
that price requirements are often neglected in invitations to purchase. 

In  2007,  the  first  sweep  organised  in  the  framework  of  the  CPC  Regulation  focused  on 
websites selling airline tickets. Authorities from 15 Member States and Norway investigated 
386  websites,  out  of  which  145  were  reported  as  containing  irregularities.  The  three  main 
issues detected were misleading indication of price, lack of information on the availability of 
offers, and irregularities related to the presentation of contract terms. 
A recent study on ‘Price Transparency in the air transport sector’71 found that many airlines 
show the price excluding taxes, fees and charges, while many of them add charges which are, 
de facto, unavoidable (e.g. free means of payment only if the credit card of the airline is used), 
qualifying  them  as  ‘optional’.  The  problem  has  particularly  detrimental  repercussions  at  the 
stage where consumers compare prices to inform their decision.72  

66 

67 

68 
69 

70 

71 

72 

The  lowest  price  for  which  the  advertised  product  or  category  of  products  can  be  bought,  while  the 
advertised product/category of products are also available at prices which are not indicated (e.g. tickets 
to Paris available ‘as of €100’). 
See in particular Article 23 of Regulation (EC) No 1008/2008 of the European Parliament and of the 
Council  of  24  September  2008  on  common  rules  for  the  operation  of  air  services  in  the  Community 
(Recast). 
See in particular Articles 5 1(c), 19 and 22 of the Consumer Rights Directive. 
Since the moment when a trader makes an ‘invitation to purchase’ in the sense of Article 7(4) of the 
Directive. 
8  Consumer  Associations,  11  ECCs  and  10  Business  Organisations  signalled  problems  in  relation  to 
price. 
The  Steer  Davies  Gleave  study  (2011)  commissioned  by  the  European  Commission  on  ‘Price 
Transparency  in  the  air  transport  sector’  assessed  the  compliance  of  websites  with  the  information 
requirements  of  five  pieces  of  EU  legislation  including  Directive  2005/29  on  unfair  commercial 
practices.  The  outcome  of  the  study  recommends  working  on  enforcement  rather  than  amending  the 
existing legislation. 
An  OFT  study  on  the  ‘Advertising  of  Prices’  investigated  whether  the  manner  in  which  prices  are 
presented to consumers affects their decision-making and welfare. Its results showed that ‘drip pricing’ 
(also referred to as partitioned pricing) — where consumers see only part of the full price upfront and 
price increments are dripped through the buying process — accounted for the largest average welfare 
loss,  which  went  up 
to  15 %  of 
involved.  OFT(2010),  Advertising  of  prices, 
http://www.oft.gov.uk/OFTwork/markets-work/advertising-prices/. 

the  stakes 

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Authorities  in  at  least  two  Member  States  have  recently  taken  enforcement  action  against 
numerous airline companies to prevent them from presenting prices to consumers that are split 
into components (‘price partitioning’) or from revealing the full price only at the end of the 
booking  process  (‘drip  pricing’).  The  investigations  focused  on  credit  and  debit  card 
surcharges: as a result, in the UK,73 12 airlines agreed to include debit card surcharges in the 
headline  price  and  ensure  that  surcharges  for  paying  by  credit  card  are  easy  to  find  when 
booking  online;  in  Italy,  six  airline  companies  were  penalised  and  agreed  to  include  such 
charges in the advertised price by the end of 2012.74 

The available evidence demonstrates that the recurrent use of inadequate price information in 
invitations to purchase does not depend on a gap in the current legal framework at EU level,75 
which  will  soon  become  even  more  stringent:  it  is  also  apparent  that  national  authorities 
encounter difficulties in reacting to such infringements when the trader is located in another 
jurisdiction,  as  it  is  the  case  for  other  unfair  practices.  Improvements  in  this  area  could  be 
obtained  if  the  Commission  were  to  take  a  more  prominent  role  in  supporting  intensified 
national  enforcement  action  and  in  promoting  stronger  cooperation  in  cross-border 
enforcement.76  The  results  of  the  consultation  confirm  that  there  is  no  need  to  consider 
regulatory measures at this stage.77 

3.3.5.  Articles 8 and 9 – Aggressive Practices 

As an innovation at EU level, the Directive harmonises the concept of aggressive commercial 
practices. These practices are dealt with by Articles 8 and 9 of the UCPD and prevent traders 
from  adopting  selling  techniques  which  impair  the  consumer’s  freedom  of  choice,  thereby 
distorting their economic behaviour. 

73 

74 

75 

76 

77 

- 

(July 

2012). 

payment 

surcharges 

-  CRE-E/27017, 

Case  Reference:  Airline 
http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-completed/card-
surcharges/. 
See  Provvedimenti  Autorità  Garante  per  la  Concorrenza  ed  il  Mercato,  (years  2011-2012):  PS/4261, 
PS/5530,  PS/3773,  PS/892,  PS/6147,  PS/5667,  PS/7430,  PS/3771,  PS/7505,  PS/7493  and  PS/7383  - 
http://www.agcm.it/consumatore.html. 
The  conclusions  of  the  Communication  about  the  implementation  of  the  Price  Indication  Directive 
adopted in 2006 by the Commission stated that the Directive did not give rise to any major transposition 
problems in any of the Member States and that, in general, the Directive had contributed to increasing 
consumer protection. A more recent consultation was conducted in spring 2012 amongst the Member 
States to help the Commission in assessing the overall effectiveness of this Directive today. The results 
showed  that  the  Member  States:  (i)  are  not  aware  of  any  cross-border  problems  related  to  the 
implementation of the Directive (which does not have a significant cross-border dimension); (ii) widely 
make use of the derogations provided by the Directive (i.e. the exemption for services, sales by auction 
and  sales  of  works  of  art  and  antiques  and  the  temporary  derogation  to  apply  the  Directive  to  small 
businesses);  (iii)  support  minimum  harmonisation  in  this  field  (more  than  10  Member  States  have 
introduced or maintained national rules providing a higher level of consumer protection as regards the 
price indication). The large majority of Member States replied that they carry out regular and systematic 
checks  on  the  market  and  they  have  efficient  sanctions  (in  the  form  of  fines)  at  national  level  for 
violations of this Directive. Further investigation may be needed in this respect.  
France  and  Italy,  for  instance,  have  signalled,  in  the  context  of  their  working  dialogues  with  the 
Commission, that requests for cooperation on pricing issues were, at least on one occasion, refused by 
Member States (e.g. Ireland in the air-transport sector) who found that the practices at issue would not 
be capable of harming the ‘collective interest of consumers’, as required by the CPC Regulation. 
Only six Member States (Belgium, Finland, Ireland, Lithuania, Romania, the Netherlands), in addition 
to  Iceland  and  Norway,  support  further  regulation  in  the  area  of  price  requirements,  but  for  different 
reasons (e.g. to clarify when the information on price is ‘material’ and to ensure that the unit price is 
mentioned in advertising). 

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Aggressive  practices  in  the  sense  of  the  Directive  are  those  which  make  use  of  harassment, 
coercion,  physical  force  or  undue  influence.  They  can  involve  behaviour  at  the  marketing 
stage but also practices which occur during or after a transaction has taken place. 

Aggressive practices concern conduct which was already covered by other legislation in the 
Member States, including contract and criminal law. In this respect, the Directive has added 
an  additional  layer  of  protection  which  can  be  activated  by  public  enforcement  means  but 
without necessarily having to start criminal or civil law proceedings. 

The  conduct  regulated  by  Article  9(c),  (d)  and  (e)  is  particularly  relevant  in  this  context. 
Article  9(c)  outlaws  practices  which  exert  undue  influence  on  consumers,  such  as  the 
exploitation  by  the  trader  of  any  specific  misfortune  or  circumstance  of  which  the  trader  is 
aware, to influence the consumer’s decision with regard to the product. Article 9(d) prevents 
traders  from  imposing  disproportionate  non-contractual  barriers  detrimental  to  consumers 
who wish to exercise rights under a contract, including the right to terminate the contract or to 
switch to another product or another trader. Article 9(e) covers any threat to take any action 
that cannot legally be taken. 

Article 9(d) has been very useful especially in the fields of telecoms and energy in relation to 
non-contractual  barriers  to  switching.  Cases  were  reported  where,  for  instance,  telecoms 
operators unduly delayed the migration of consumers to other providers,78 or energy providers 
made it difficult for consumers to exercise their right of withdrawal.79 

The  aggressive  practices  reported  by  Member  States  and  stakeholders  in  response  to  the 
consultation occur mainly in doorstep selling or other off-premises sales. European Consumer 
Centres  (ECCs),  who  deal  with  many  individual  complaints,  encounter  frequent  aggressive 
practices in the timeshare sector (holiday clubs and related practices80) and, to a lesser extent, 
in  the  off-premises  sale  of  consumer  goods  (e.g.  furniture,  electronic  outlets,  health  or  food 
products). 

The  general  rules  of  Articles  8  and  9  on  aggressive  practices  are  complemented  by  eight 
specific  aggressive  practices  described  in  the  ‘Black  List’  which  are  banned  in  all 
circumstances.81 

3.3.6.  Annex I – The ‘Black List’ of prohibited practices 

Annex  I  to  the  UCPD  contains  a  list  of  commercial  practices  which  are  to  be  considered 
unfair  in  all  circumstances  and  which  are  therefore  prohibited.  The  list  was  drawn  up  to 
prevent practices which are by experience considered unfair and to enable enforcers, traders, 
marketing  professionals  and  customers  to  identify  such  practices,  thus  enhancing  legal 
certainty. 

As stated in Recital 17 of the Directive, 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. In other words, if it can be proved that the trader has carried out the practice in actual fact, 
national enforcers do not need to apply the material distortion test (i.e. to consider the impact 
of  the  practice  on  the  average  consumer’s  economic  behaviour)  in  order  to  take  action  and 
prohibit or penalise the practice. 

78 

79 
80 

81 

Italy,  AGCM,  2009,  PS1270  -  Vodafone  –  Ostacoli  alla  migrazione  e  retention  ingannevole, 
Provvedimento n. 19756. 
Italy, AGCM, 2008, PS91 – Enel Energia –Richiesta cambio fornitore, Provvedimento n. 18829. 
Data  available  to  the  Commission  services  show  that  consumers  are  exposed  to  various  forms  of 
pressure to enter into a contract. 
The UCPD, Annex I, n. 24-31. 

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The implementation of the Directive shows that the Black List has proved to be a useful tool 
in the hands of enforcers. 

Amongst the most used provisions of the Black List are: 

Point  5  on  ‘bait  advertising’  and  point  6  on  ‘bait  and  switch’,  which  prevent  traders  from 
using  particularly  attractive  offers  on  products  and  services  in  order  to  attract  consumers  to 
their website or shop, or with the intention of selling them another product. This provision has 
been used, for instance, in the airline transport sector to prevent companies from advertising 
conditions  which  they  could  only  guarantee  in  relation  to  an  unreasonably  low  number  of 
consumers, taking into account the scale of advertising. 

Point  10,  whereby  rights  given  to  consumers  in  law  cannot  be  presented  as  a  distinctive 
feature  of  the  trader’s  offer.  This  ban  has  been  particularly  helpful  in  tackling  cases  where 
traders present the legal guarantee for lack of conformity as an added value of their product. 

Point 20, which prevents traders from describing a product as ‘free’ when it is not the case. 
This  provision  has  been  used  in  relation  to  a  frequently  reported  practice,  targeting  mainly 
vulnerable consumers (teenagers), on websites offering mobile phone ringtones for ‘free’ but 
where  in  reality  consumers  enter  into  a  paying  subscription.82  The  Commission  services 
clarified  the  application  of  this  provision  to  joint  offers  (e.g.  ‘buy  one  get  one  free’)  in  the 
Guidance document. 

Point  17  ‘Falsely  claiming  that  a  product  is  able  to  cure  illnesses,  dysfunction  or 
malformations’,  which  has  been  used,  in  combination  with  Article  6  of  the  UCPD,  to  stop 
unfair practices for instance in the field of cosmetics. 

Point  31,  which  forbids  ‘creating  the  false  impression  that  the  consumer  has  already  won, 
will  win  […]a  prize  or  other  equivalent  benefit,  when  in  fact  […]  there  is  no  prize  or 
[…]taking any action in relation to claiming the prize […] is subject to the consumer paying 
money  or  incurring  a  cost.’  It  has  been  used  to  outlaw  practices,  including  outright  frauds, 
which lured consumers into paying considerable sums to receive a prize which either did not 
exist  or  whose  value  was  lower  than  the  amounts  paid.  There  has  been  debate  amongst 
enforcers on how to interpret the element of ‘the consumer paying money or incurring a cost’ 
and,  in  particular,  whether  requiring  the  consumer  to  make  a  call  at  standard  local  rate  or 
buying  a  postage  stamp  to  claim  the  prize  would  be  in  breach  of  the  Directive.  The  ECJ 
clarified this matter ruling out the possibility of imposing even minimal costs on consumers 
(as in the case of a stamp).83  
One  business  federation84  which  represents  various  operators  of  multi-level  marketing 
schemes considers that the harmonisation of the rules concerning pyramid schemes, provided 
by Annex I point 14, is adequate and has proved to be largely beneficial, enabling them to set 
up one single business model which could be valid across the EU, in a sort of ‘one-stop shop’ 
fashion. The other main association of direct sellers85 takes a similar position and regards the 
current  legal  framework  as  complete.  A  company  active  in  direct  selling  suggested  in  its 
contacts with the Commission services that, in the context of pyramid schemes, there should 
not be any distinction between consumers and professionals and that Member States should be 
encouraged to apply the national laws transposing  Annex  I  (point  14) of  the  UCPD  mutatis 

82 

83 
84 
85 

In  the  2008  ‘Sweep’  which  targeted  websites  selling  ringtones,  wallpapers  and  other  mobile  phone 
services, 301 out of more than 500 websites checked during this exercise were found to be in serious 
breach  of  EU  consumer  law,  including  Annex  I,  point  20.  See  Paragraph  3.3.2.  on  vulnerable 
consumers. 
C-428/11 Purely Creative e.a. – See Section 3.1.1. of this Report. 
SELDIA, The European Direct Selling Association. 
DSE, Direct Selling Europe. 

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mutandis  to  business-to-business  pyramid  promotional  schemes.  The  Commission’s  view  is 
that there is currently no need to further harmonise pyramid schemes.86 

In the light of the enforcers’ experience and the feedback from the consultation, there is no 
need  at  this  stage  to  amend  the  Black  List.  No  new  practices  which  are  not  covered  by  the 
Directive  have  been  identified.  It  is,  however,  important  to  make  sure  that  the  criteria  and 
concepts  contained  in  Annex  I  are  interpreted  in  a  uniform  manner,  which  can  be  done  by 
enhancing the Guidance and the UCPD Database. 

3.4. 

THE  APPLICATION  OF  THE  DIRECTIVE  TO  SPECIFIC  SECTORS  AND 
COMMERCIAL PRACTICES 

3.4.1.  Environmental Claims 

The expression ‘environmental claims’ or ‘green claims’ refers to the practice of suggesting 
or  otherwise  creating  the  impression  (in  the  context  of  a  commercial  communication, 
marketing or advertising) that a product or a service is environmentally friendly (i.e. it has a 
positive impact on the environment) or is less damaging to the environment than competing 
goods or services. 

The  growing  use  of  environmental  claims  as  a  marketing  and  advertising  tool  reflects  the 
increase  in  environmental  concerns  among  the  population.  Such  claims  can  refer  to  the 
manner  in  which  products  are  produced,  packaged,  distributed,  used,  consumed  and/or 
disposed of. 
Beyond the aspects covered by specific EU legislation (e.g. ‘bio’ or ‘eco’ labels),87 the UCPD 
is  the  main  instrument  of  horizontal  legislation  for  assessing  environmental  claims  and 
establishing whether a claim is misleading either in its content or in the way it is presented to 
consumers.88 

Under  Article  6(1)(a)  and  (b)  of  the  Directive,  national  authorities  perform  a  case-by-case 
assessment of the practice in question, the content of the environmental claim and its impact 
on the average consumer’s purchasing decision. As the Commission services have explained 
in  the  Guidance  document,89  the  application  of  the  provisions  of  the  Directive  to 
environmental claims can be summarised in regard to two main principles: 

• 

• 

86 

87 

88 

89 

Based  on  the  Directive’s  general  provisions,  traders  must,  above  all,  present  their 
green claims in a specific, accurate and unambiguous manner; 

Traders must have scientific evidence to support their claims and be ready to provide 
it in an understandable way in case the claim is challenged. 

No  concerns  were  raised  in  relation  to  Annex  I,  point  14  by  consumer  associations  or  other 
stakeholders. 
Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic 
products and repealing Regulation (EEC) No 2092/91, OJ L 189, 20.7.2007, p. 1–23. Other examples of 
specific legislation are Directive 2010/30/EU of the European Parliament and of the Council of 19 May 
2010 on the indication by labelling and standard product information of the consumption of energy and 
other resources by energy-related products; Regulation (EC) No 1222/2009 of the European Parliament 
and of the Council of 25 November 2009 on the labelling of tyres with respect to fuel efficiency and 
other essential parameters. 
As stated in Recital 10 of the Directive, it indeed ‘provides protection for consumers where there is no 
specific sectoral legislation at Community level and prohibits traders from creating a false impression 
of the nature of products’. 
Guidance on the application /implementation of Directive 2005/29/EC on Unfair Commercial Practices 
(SEC(2009) 1666, Commission Staff Working Document) 3 December 2009. 

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Annex  I  of  the  Directive  refers  in  addition  to  a  number  of  practices  which  are  particularly 
relevant to environmental claims and which are prohibited, regardless of the impact they have 
on  the  consumer’s  behaviour.  They  concern  unauthorised  use  of  logos  (point  2),  false 
approval  or  endorsement  by  public  or  private  bodies  (point  4),  falsely  claiming  to  be  a 
signatory  to  a  code  of  conduct  (point  1)  or  that  a  code  of  conduct  has  been  endorsed  by  a 
public or private body (point 3). 

Further  regulation  of  environmental  claims  can  only  be  achieved  through  a  revision  of  the 
UCPD or the adoption of other (specific) EU legislation. Despite the fact that some Member 
States90  might  be  interested  in  adopting  more  specific  rules  on  environmental  claims  at  a 
national  level,  it  is  widely  accepted  that  the  way  this  increasingly  important  aspect  of 
advertising  is  addressed  across  the  EU  should  not  be  hindered  through  fragmentation.  The 
results of the consultation show that Member States and stakeholders are generally satisfied 
with the current legal framework and consider that the tools provided by the Directive and the 
Commission  services'  Guidance  are  sufficient  to  assess  environmental  claims.  Only  a  few 
Member States91 would be keen on further regulating this sector through the UCPD. 

However,  a  number  of  stakeholders  have  suggested  that,  despite  the  current  legal  backstop, 
green  claims  are  still  not  used  responsibly  and  are  often  very  general,  vague  and  not  well-
defined.92  Consumer  associations93  claim  that  an  additional  difficulty  lies  in  verifying  the 
truthfulness of these claims especially in the energy, cosmetics, car and detergents sectors. 

Credible and responsible use of green claims in advertising is extremely important since it can 
drive  consumer  preferences  and  hence  contribute  to  the  development  of  a  more  sustainable 
economy, in line with the Europe 2020 Strategy and the European Consumer Agenda. 

The Commission considers that the problems identified with regard to the use of green claims 
can be addressed by measures related to enforcement and development of best practices rather 
than by legislative changes to the UCPD. It will, therefore, support appropriate and consistent 
enforcement, for example by developing guidance on this topic as announced in the European 
Consumer Agenda.94 
The Commission, in the context of the ongoing work on the SCP95 Action Plan is, however, 
evaluating  how  the  further  development  of  the  current  scientific  standards  can  contribute  to 
the verifiability of green claims. In particular, thought is being given to options which could 
allow 
the  development  of  an  ‘environmental  footprint’  of  products  (i.e.  common 
formats/standards  which  could  allow  comparisons  between  products  fulfilling  the  same 
functions). Based on this exercise, appropriate measures will be considered. 

90 
91 
92 

93 
94 

95 

E.g. France. 
Belgium, France, Lithuania, Portugal, Slovenia. 
E.g. amongst the expressions commonly used are: ‘eco-friendly, biodegradable, carbon neutral, green, 
sustainable,  natural,  energy  efficient,  non-toxic,  low  carbon,  pollutant-free,  clean,  zero  emissions, 
ethical and fair’. 
E.g. BEUC. 
The Advertising Standard Authority (‘ASA’) in the UK, for instance, received and thoroughly assessed 
a  large  number  of  complaints  including  on  environmental  claims.  See  moreover  section  4  on 
Enforcement. 
On 16 July 2008 the European Commission presented the Sustainable Consumption and Production and 
Sustainable Industrial Policy (SCP/SIP) Action Plan. On 11 January 2012 the Commission launched the 
public  consultation  on  ‘Delivering  more  Sustainable  Consumption  and  Production’.  For  more 
information see: http://ec.europa.eu/environment/eussd/escp_en.htm 

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At the European Consumer Summit on 29 May 2012 environmental claims were discussed in 
depth  and  input  was  gathered  on  the  state  of  play  in  different  EU  markets  and  on  the  way 
forward in this area.96 

3.4.2.  Customer Review Tools and Price Comparison Websites 

Amongst  the  benefits  that  the  development  of  the  online  market  in  the  EU  can  deliver  to 
consumers  are  price  savings  and  choice.  Search  engines,  price  and  product  comparison 
websites,  consumer  reviews  and  social  media  are  tools  that  are  becoming  embedded  in 
consumer  behaviour  and  business  models.97  Four  out  of  five  EU  online  consumers  (81 %) 
used a price comparison website in 2010.98 However, such tools can help to boost consumer 
confidence only if they provide information in a clear, transparent and accurate form. 

The Directive contains various provisions which can be applied to price comparison websites 
(‘PCWs’) and customer review tools. 

• 

• 

• 

Articles 6 and 7 prevent traders from using PCWs to provide misleading statements, 
omitting  material  information  inter  alia  about  the  price  and  /  or  the  availability  of 
products and services. 

Annex  I,  point  18  prohibits  in  all  circumstances  the  practice  of:  ‘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’. 

The  Directive  also  demands  clarity  on  whether  a  PCW  is  independent,  operated  or 
(directly or indirectly) sponsored by a trader (see Article 6(1) (c), (f) and Article 7). 
In this connection, ‘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’  is  prohibited  in  all  circumstances  by  Annex  I, 
point 22 of the Directive. 

The  evidence  available  to  the  Commission  shows  that,  despite  such  a  comprehensive  legal 
framework, consumers find it difficult to compare the price and quality of different goods on 
offer and the problems encountered undermine their confidence in PCWs. 
Various  stakeholders99  have  signalled  problems  with  PCWs,  especially  in  relation  to 
transparency and incompleteness of the information given. BEUC points out that the issue is 

96 

97 

98 

99 

At the European Consumer Summit on 29 May 2012, the European Commission organised a workshop 
on greenwashing and misleading environmental claims. The workshop was a first step in a process that 
will  provide  input  into  the  reflection  on  environmental  claims  at  EU  level.  For  more  information  see 
http://www.european-consumer-summit.eu/  
See  Commission  Staff  Working  Document,  ‘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,  Brussels 
11.1.2012  (SEC(2011)  1640  final),  p.19.  Shoppers  use  a  variety  of  research  methods  to  inform  their 
purchase  decisions before  they  buy  goods online.  In  their  first  three  steps  during  their  research, 31 % 
visit sellers’ websites, 30 % use a search engine, 27 % use a price comparison website and 24 % visit an 
online market place, while 24 % read customer reviews.  
See  Commission  Staff  Working  Paper,  ‘Bringing  e-commerce  benefits  to  consumers’,  Brussels 
11.1.2012  (SEC(2011)  1640  final),  p.20.  Contrary  to  the  provisions  of  the  E-commerce  Directive, 
Article 5, many price comparison websites (53 %) do not provide their full business address, see p. 22. 
5 Consumer Associations, 7 Business Organisations and 4 ECCs. 

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particularly serious in the air transport sector. One Member State100 acknowledges that PCWs 
often display incomplete price information, which makes any comparison unfair. 

The  Commission  Staff  Working  Paper  on  ‘Bringing  E-commerce  Benefits  to  Consumers’ 
showed that the information provided to consumers through information intermediaries, such 
as PCWs, is frequently partial and sometimes misleading and incorrect, especially in relation 
to the price, whether the retailer has paid to have its product listed, the criteria for ranking the 
offers, or delivery costs. 

The enforcement experience confirms that one of the major problems stems from PCWs not 
disclosing clearly 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). Hidden 
advertising appears to affect not only PCWs but customer review tools in general. Websites 
hosting user-generated reviews have on a number of occasions been subject to criticism about 
reviews that appear to be based on a consumer’s unbiased opinion, but are in fact advertising 
in disguise.101  

In one Member State, for instance, an investigation into how consumers compare prices in the 
retail  energy  market  found  that  a  number  of  websites  were  leading  consumers  to  think  that 
they were PCWs when  it was not the case.102 In another case the courts of a Member State 
fined a company operating hotel booking websites and seven of its subsidiaries for breach of 
the  rules  on  unfair  commercial  practices.  The  websites  claimed  to  provide  a  comparison 
between best offers and availability, but, instead, steered bookings towards ‘partner hotels’, to 
the detriment of ‘non-partner hotels’.103 

The  problems  identified  with  PCWs  and  customer  review  tools  need  a  strong  enforcement 
response. The Commission will consider how, in accordance with the Treaties, it can play a 
more active role in encouraging coherent application of the Directive in particular with regard 
to  unfair  practices  having  a  cross-border  dimension  such  as  those  which  take  place  in  the 
online  environment  and  which  raise  common  questions  for  enforcers.  As  announced  in  the 
January  2012  e-Commerce  Communication,  the  Commission  will  also  address  the  issue  of 
transparency  and reliability of comparison tools through a direct dialogue  with stakeholders 
which  could  eventually  lead  to  the  development  of  codes  of  good  conduct  and/or  EU-wide 
guidance.104 

As  noted  in  the  Commission  Staff  Working  Paper  on  ‘Bringing  e-commerce  benefits  to 
consumers’, the dominant factor for shopping online seems to be price, followed by perceived 
saving of time, the possibility to carry out price comparisons easily, the flexibility of ordering 
at any time of the day/week and finding a wider selection online. The provision of prices and 
other  key  information  should  be  offered  upfront  in  a  clear  and  simple  manner  so  as  not  to 
mislead  consumers.  The  fact  that  such  websites are so widely used by consumers to inform 
their decisions amplifies the overall detriment suffered by them. 

In applying the Directive across the EU, specific attention should in the future be given to the 
increasing involvement of social networks in online advertising. Based on the third generation 
of  internet  advertising  models  (i.e.  ‘E-commerce  3.0’),  social  networks  are  increasingly 

100 
101 

102 

103 
104 

The Netherlands. 
See  Commission  Staff  Working  Document  on  Knowledge  Enhancing  Aspects  of  Consumer 
Empowerment 2012-1014, 19.7.2012, SWD (2012) 235 final. 
Office of Fair Trading, UK, Case reference: CRE-E-26547, 26555, 26759, 26760, 26761, January 2011, 
http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-completed/heating-
oil/. 
Tribunal de Commerce, 4 October 2011, Synhorcat et autres / Expedia et autres. 
See e-Commerce Communication (page 10). 

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becoming platforms where companies invest to engage customers. In addition to what can be 
expected from more traditional forms of online advertising (e.g. companies’ websites), social 
media, where consumers share their likes with friends and family, can provide traders with a 
‘network effect’ to their online advertising and a valuable insight into consumer behaviour / 
preferences. Enforcement action should therefore focus on ensuring that the new advertising 
models  remain  compliant  with  the  Directive,  especially  as  regards  ‘hidden  advertising’  and 
product information. 

3.4.3.  Article  3(9)  –  Application  of  the  Directive  in  the  fields  of  Financial  Services  and 

Immovable Property 

As  mentioned  in  section  2.4  of  this  Report,  by  virtue  of  Article  3(9)105  of  the  UCPD, 
minimum harmonisation applies in the fields of financial services and immovable property.106 
Under Article 18 of the UCPD, the Commission is to report on the application of the Directive 
in  these  sectors  and  consider,  in  particular,  whether  the  exemption  from  full  harmonisation 
contained  in  Article  3(9)  should  be  kept.  For  these  purposes,  the  Commission  launched  a 
study  on  the  application  of  the  UCPD  in  the  areas  of  financial  services  and  immovable 
property.107 The study was carried out in the course of 2011 until the beginning of 2012 and is 
based on a wide consultation of Member States and stakeholders.108 

The evidence collected by the study shows that the exemption contained in Article 3(9) has 
been widely used. In other words, most Member States have maintained or adopted legislation 
in the areas of financial services and immovable property that goes beyond the standards laid 
down by the UCPD. 

Most  of  these  additional  rules  consist  of  sector-specific  pre-contractual  and  contractual 
information  obligations.109  In  addition,  a  significant  number  of  prohibitions  predominantly 
concern direct selling and promotional practices,110 practices that take advantage of particular 
vulnerabilities,111 or the prevention of conflicts of interest.112 For example, in Austria doorstep 
selling  for  mortgage  loans  is  prohibited  while  in  Italy  it  is  forbidden  to  tie  compulsory  car 

105 

106 

107 

108 

109 

110 

111 

112 

Art.  3(9)  of  the  UCPD:  ‘In  relation  to  ‘financial  services’,  as  defined  in  Directive  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.’ 
For instance, Directive 2007/64/EC in the field of payment services, and Directive 2008/48/EC in the 
field of consumer credit, establish fully harmonised rules. 
See  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. 
Organisations  such  as  national  enforcement  authorities,  national  consumer  organisations  and 
ombudsmen,  as  well  as  a  selection  of  academics  and  EU-level  stakeholders  such  as  the  European 
Banking  Federation  (EBF),  the  European  insurance  and  reinsurance  federation  (CEA),  and  the 
European Consumers’ Organisation (BEUC). 
E.g. as regards financial services, specific information requirements in the banking sector (such as for 
the assignment of secured credit to a third person in Germany or an advertisement for money exchange 
services  in  Spain),  investment  services,  insurance,  financial  intermediaries.  In  relation  to  immovable 
property, information requirements related to the purchase of a property, the transaction itself, the real 
estate agent and the construction contracts.  
E.g. prohibition of cold calling,  unsolicited e-mails, doorstep selling of mortgage loans and for a real 
estate agent to retain money without legal reason in Austria, doorstep selling of monetary credit in the 
Netherlands, combined offers in Belgium and France. 
E.g. prohibition of usurious credit in most of the Member States, prohibition on advertising that a loan 
may  be  granted  without  documentary  proof  of  the  consumer’s  financial  position  in  France,  or  on 
issuing, without prior consent of the legal representative, ATM cards to minors in Austria.  
E.g.,  in Denmark, prohibition on  banks financing  their  clients’ purchase  of  shares  issued by  the  bank 
itself;  in  France,  prohibition  on  banks  stopping  their  customers  from  using  another  credit  insurance 
provider (than the one provided by the bank itself) when the level of guarantee offered is similar. 

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insurance  liability  contracts  to  other  insurance  services.  In  Denmark  there  is  a  ban  on  tying 
several real estate services. 

In this connection it should be noted that the question as to whether the Member States can 
prohibit tying when at least one of the products/services involved is of a financial nature, is 
pending before the ECJ in Case C-265/12 (Citroën Belux NV). In this case the ECJ will need 
to clarify, in particular, the scope of the exemption under Article 3(9)). 

In  relation  to  both  financial  services  and immovable  property,  the  most  commonly  reported 
unfair  practices  (in  the  sense  of  the  UCPD)  concern  a  lack  of  essential  information  at  the 
advertising stage and misleading description of products. 

As  regards  financial  services,  lack  of  information  in  advertising  on  the  annual  rate  and  the 
cost of credit, offers of misleading bargains for credit contracts with a low interest rate, and 
lack  of  proper  information  on  the  legal  obligations  related  to  the  signing  of  contracts  were 
amongst  the  practices  reported.113  In  relation  to  immovable  property,  examples  of  practices 
encountered were: misdescription of property characteristics, lack of transparency in relation 
to the cost of the property and respective taxes, bait advertising, aggressive practices by real 
estate agents such as intimidating consumers into signing an exclusive contract with an agent 
when attempting to sell their properties. 

The Commission has received a  large  number of complaints,  citizens’ letters,  parliamentary 
questions and petitions on problems relating to the purchase of property in Cyprus, Bulgaria 
and Spain. In Cyprus and Bulgaria property developers engage in misleading advertising by 
making  various  misrepresentations  about  the  characteristics  of  a  property  and  in  particular 
omitting to disclose that properties sold would continue to be subject to prior mortgages for 
present and future bank loans contracted by the developers. The Commission is currently in 
contact with the Cypriot and Bulgarian authorities on these matters in order to find a solution 
to the issues raised. In Spain the problems are only to a limited extent related to misleading 
advertising/unfair  practices  in  the  sense  of  the  Directive  and  mainly  concern  relationships 
between consumers and local authorities, such as irregularities in granting of licences to build 
or  the  imposition  of  urbanisation  charges  for  the  development  of  new  projects  on  foreign 
residents. 

Notwithstanding the extensive national rules, it is interesting to note that, in at least half of the 
cases  assessed  in  the  Member  States  concerning  unfair  practices  in  the  fields  of  financial 
services  and  immovable  property,  the  provisions  of  the  Directive  (misleading  actions, 
omission,  aggressive  practices,  sometimes  in  combination  with  blacklisted  practices)  have 
been  used  as  the  legal  basis.  In  the  other  half,  more  prescriptive  national  rules  have  been 
applied.114 

In the insurance sector, for instance, Annex I, point 27 has been applied to situations where 
insurers  refused  to  pay  claims  by  compelling  consumers,  who  wanted  to  apply  for 
compensation  under  an  insurance  policy,  to  produce  documents  which  could  not  be 
reasonably  considered  relevant  to  establish  the  validity  of  the  request.  In  these  cases, 

113 

114 

It should be noted that credits related to immovable property are not covered by Directive 2008/48/EC 
on  Consumer  Credit  and  that  the  Commission  adopted  a  proposal  for  a  Directive  of  the  European 
Parliament and of the Council on credit agreements relating to residential property on 31 March 2011. 
See  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. 

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providers  systematically  failed  to  respond  to  pertinent  correspondence  in  order  to  dissuade 
consumers from exercising their contractual rights.115 

The  results  of  the  investigation  conducted  in  the  areas  of  financial  services  and  immovable 
property indicate that it would not be appropriate to remove the exemption under Article 3(9) 
of the Directive.116  

The main reasons are: the higher financial risk in respect of financial services and immovable 
property (as compared to other goods and services); the particular inexperience of consumers 
in  these  areas  (combined  with  a  lack  of  transparency,  in  particular  of  financial  operations); 
particular  vulnerabilities  found  in  both  sectors  that  make  consumers  susceptible  to  both 
promotional  practices  and  pressure;  the  experience  of  the  competent  financial  enforcement 
bodies  with  a  nationally  grown  system;  and  finally  the  functioning  and  the  stability  of  the 
financial markets as such. 
Enforcement authorities and other stakeholders responding to the consultation117 have come to 
a  similar  conclusion.  A  large  majority  of  responding  organisations  in  both  the  areas  of 
financial  services  and  immovable  property  consider  it  very  or  fairly  important  to  keep  the 
exemption under Article 3(9) of the UCPD. 

4. 

ENFORCEMENT 

4.1. 

Enforcement in the Member States 

The  Directive  does  not  harmonise  enforcement  systems.  Under  Article  11  of  the  UCPD, 
Member  States  are  free  to  choose  the  enforcement  mechanisms  which  best  suit  their  legal 
tradition,  as  long  as  they  ensure  that  adequate  and  effective  means  exist  to  prevent  unfair 
commercial practices. On the basis of Article 13 of the UCPD, it is also left to the Member 
States  to  decide  what  type  of  penalties  should  be  applied,  as  long  as  these  are  ‘effective, 
proportionate and dissuasive’. 

The role of the Commission in the overall enforcement of the Directive is crucial because it 
must ensure that the Directive is properly and effectively applied in all the Member States. 

The  Member  States  have  put  in  place  a  wide  variety  of  enforcement  regimes.  In  some 
countries  enforcement  is  mainly  carried  out  by  public  authorities  such  as  consumer 
ombudsmen  (e.g.  Denmark,  Sweden  and  Finland),  consumer  /  competition  authorities  (e.g. 
Italy, Ireland, the Netherlands, Romania and the UK) and dedicated departments of ministries 
(e.g. Portugal and Belgium). Other Member States run a private enforcement scheme led by 
competitors (e.g. Austria and Germany). Most systems, however, combine elements of public 
and  private  enforcement.  Penalties  range  from  injunction  orders,  damages,  administrative 

115 

116 

117 

Reported  in  Portugal,  see  study  on  the  application  of  the  UCPD  to  financial  services  and  immovable 
property in the EU, 2012. 
The  study  states  that  ‘the  possibility  of  Member  States  to  adopt  or  maintain  stricter  provisions  than 
those  in  the  Directive  gives  them  the  flexibility  that  they  need  to  deal  with  newly  developed  (unfair) 
commercial  practices  that  react  to  the  specificities  of  national  legislation  in  the  areas  of  financial 
services  and  immovable  property,  and  the  removal  of  Article  3(9)  would  harm  well-working 
enforcement systems and therefore lower the level of consumer protection …’. 
The respondents include the European consumer organisation BEUC as well as some national consumer 
associations. One of the findings of the study is that specific national information obligations usually 
apply regardless of their suitability to mislead the consumer, and they are therefore easier to handle for 
authorities, courts, businesses and consumers alike. Often, they also come under a different enforcement 
system. Accordingly, the survey has shown a preference for pre-existing rules in those Member States 
that had information obligations already in place. This applies to both the sectors of financial services 
and immovable property. 

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fines  and  criminal  sanctions,  and  in  most  Member  States  there  is  a  combination  of  all  of 
these.118 

Member  States  and  stakeholders  consider  that,  at  a  national  level,  the  enforcement  of  the 
Directive  in  the  Member  States  is,  in  general  terms,  appropriate  and  effective.  However, 
according to some, adequate enforcement at a national level may be hampered by the lack of 
resources  of  national  enforcers,  the  complexity/length  of  enforcement  procedures  and  the 
insufficient  deterrent  effect  of  the  penalties.  One  Member  State119  and  various  consumer 
associations120 want heavier penalties121 and, in some instances, collective redress. 

Several Member States and stakeholders confirm that this situation has an impact also on the 
effective  enforcement  of  the  legislation  at  cross-border  level.  The  consultation  has  revealed 
that, in cases of cross-border unfair commercial practices, it is a real challenge for enforcers to 
provide  a  rapid  and  efficient  response  given  the  constraints  posed  by  jurisdictional 
boundaries. In addition, resources available are limited. 
The statistics contained in the 2012 Report on the application of the CPC Regulation122 show 
that  the  UCPD  accounts  by  far  for  the  highest  number  of  mutual  assistance  requests  as  an 
individual  body  of  legislation.  From  2007  to  2010,  out  of  1343  CPC  actions,  654  (48.7 %) 
related to UCPD infringements. The remainder of the requests related to infringements of 14 
other  Directives  (e.g.  Directive  1999/44/EC  on  sale  of  consumer  goods  and  associated 
guarantees) and one Regulation. 

Since its inception, the Network has carried out, under the coordination of the Commission, 
annual  enforcement  actions  called  ‘sweeps’  in  addition  to  the  bilateral  enforcement 
cooperation. In a sweep, enforcement authorities simultaneously screen a sample of websites 
in  a  given  sector  for  compliance  with  EU  consumer  legislation  and  in  a  second  phase  take 
appropriate  enforcement  measures  where  required.  The  five  sweeps  completed  so  far  have 
helped  to  improve  compliance  in  the  targeted  sectors  (websites  selling  airline  tickets, 
ringtones  for  mobile  phones,  electronic  goods,  tickets  for  sports  and  cultural  events,  and 
consumer  credit).  Authorities  have  checked  about  2200  websites  from  different  sectors.  On 
average,  80 %  of  the  websites  found  to  be  in  breach  of  consumer  law  were  corrected  as  a 
result of the enforcement action by national authorities. The outcome of the first phase of the 
2012 sweep on digital content confirms a  rate of non-compliance that is similar to previous 

118 

119 
120 
121 

122 

in 

the 

fiche’ 

sections 

‘enforcement 

the  UCPD  Database 

For further details and examples of the enforcement regimes and penalties in the Member States, please 
consult 
at 
country 
https://webgate.ec.europa.eu/ucp/public/. 
Belgium. 
BEUC, Citizens Advice (UK), CLCV (Consommation, Logement, Cadre de Vie - FR), Which (UK). 
To improve this aspect Italy, for instance, has recently increased the maximum penalty for violations of 
the Directive tenfold, from 500 000 euros to 5 million euros. 
The  CPC  Regulation  establishes  a  cooperation  framework  linking  enforcement  authorities  in  the 
Member States to form an EU-wide network (the CPC-Network). This framework enables enforcers to 
work  closely  together  in  order  to  swiftly  and  effectively  stop  commercial  practices  that  breach 
consumer  laws  whenever  traders  and  consumers  are  established  in  different  countries.  The  Network 
brings together the consumer enforcement authorities of all the Member States (as well as Norway and 
Iceland).  See  Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the 
application  of  Regulation  (EC)  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’),  COM(2012)  100  final, 
12.03.2012; 
http://eur-
available 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0336:FIN:EN:PDF 

at: 

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sweeps. Further enforcement action is now being carried out by national authorities to enable 
the companies concerned to clarify their position or correct their website.123 

Although  consolidated  data  on  the  number  of  decisions  adopted  and  penalties  imposed  by 
national enforcement authorities are not available, the following representative examples can 
be  provided:  between  the  entry  into  force  of  the  Directive  and  mid  2011,  the  Italian 
Competition  Authority  issued  more  than  700  decisions  and  applied  administrative  fines 
totalling €
 91 million; the French General Directorate for Competition, Consumer Issues and 
Fraud  Control  (DGCCRF)  issued  1251  Reports124  and  corresponding  fines  amounting  to 
 1.7 million were imposed;125 the Latvian Consumer Rights Protection Centre 
approximately €
took  154  binding  decisions  and  imposed  fines  of  €
 159 400;  the  Finnish  Consumer 
Ombudsman  initiated  8  court  cases;  the  Irish  National  Consumer  Agency  issued  14 
undertakings,  116  compliance  notices,  2  prohibition  orders,  and  started  2  prosecutions;  the 
Slovak  Trade  Inspection  issued  46  administrative  decisions  and  imposed  a  total  amount  of 
 151 800  in  fines;  and,  finally,  18  court  rulings  and  52  injunction  orders  were  issued  in 
Sweden. 

Further enforcement efforts should be made to guarantee a high level of consumer protection, 
especially at cross-border level but also in a national context. This conclusion is based on the 
Commission’s experience  in  cooperating with national  authorities, on  the feedback  received 
from  the  ECCs126  and  other  stakeholders,  and  other  available  sources  (in  particular  the 
Reports on the application of the CPC Regulation).127 

4.2. 

Self-regulation 

The UCPD upholds the principle that self-regulation can support judicial and administrative 
enforcement and clarifies the role that code owners can play in enforcement.128  
As the experience of certain legal systems shows,129 self-regulatory bodies can contribute to 
enhancing compliance with legal standards and alleviating the burden on public enforcement 
bodies. Member States are allowed to rely on self-regulatory dispute settlements to enhance 

123 

124 
125 

126 

127 

128 
129 

See  http://ec.europa.eu/consumers/enforcement/sweep/digital_content/index_en.htm  for  the  results  of 
the first phase of the 2012 Sweep on Digital Content. 
‘Procès verbaux’. 
In  France,  the  DGCCRF  issued  1195  Reports  for  misleading  practices  corresponding  to  financial 
penalties of €73 828 imposed by courts and €1 649 451 directly imposed by DGCCRF, and 56 Reports 
for aggressive practices, on which financial penalties of €15.000 were imposed by courts. 
ECCs in Belgium, the Czech Republic, Portugal and the UK signalled enforcement problems in cross-
border  cases  (either  suggesting  that  cooperation  between  national  authorities  should  be  improved  or 
indicating  that  cross-border  cases  are  not  handled  properly  by  national  courts).  ECCs  in  Estonia, 
Finland,  Ireland,  Latvia,  Poland  and  Sweden  consider  that  current  national  enforcement  powers, 
penalties and redress are not adequate. 
See for instance the second biennial Report from the Commission to the European Parliament and the 
Council  on  the  application  of  Regulation  (EC)  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). See p. 9 
of  the  Report  ‘The  number  of  authorities  that  do  not  actively  use  the  cooperation  mechanisms 
established by the CPC Regulation remains significant.’ One cannot rule out that, although the UCPD is 
by  far  the  most  used  legal  basis  for  CPC  actions,  the  number  of  UCPD  mutual  assistance  requests 
remains low for such a horizontal and encompassing type of legislation. 
See UCPD Article 10.  
The Advertising Standard Authority (‘ASA’) in the UK, for instance, received and thoroughly assessed 
14596 complaints which resulted in 6542 cases in the first half of 2010. Complaints have been declining 
(around 10 %) from previous years, which may be explained by increased compliance due to the efforts 
of  the  ASA.  For  numbers  and  decisions  and  cases  see  the  ASA  Annual  Activities  Reports  at: 
http://www.asa.org.uk/About-ASA/Annual-Report.aspx. 

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€
                                                 
the  level  of  consumer  protection  and  to  maximise  compliance  with  the  legislation  and  best 
market practices. 

However,  the  Directive  confirms  the  fact  that  self-regulation  cannot  replace  judicial  or 
administrative means of enforcement. Moreover, the Directive reinforces the effectiveness of 
codes  of  conduct  requiring  that  Member  States  enforce  the  self-regulatory  rules  against 
traders who have undertaken to be bound by the applicable codes.130 

5. 

OVERVIEW OF THE BENEFITS OF THE DIRECTIVE 

The experience gained from its first years of implementation demonstrates that the Directive 
has helped to enhance consumer protection in the Member States while protecting legitimate 
businesses from competitors who do not play by the rules. 

It  has  been  used  by  national  consumer  protection  watchdogs  to  curb  and  penalise  a  wide 
variety  of  unfair  business  practices.131  The  UCPD  is  the  only  general  instrument  of  EU 
legislation in place to assess environmental claims or aggressive practices. 

Its principle-based rules have proved particularly effective in allowing national authorities to 
adapt their assessments to the rapid evolution of products, services and selling methods. The 
‘Black  List’  has  provided  national  authorities  with  an  effective  tool  for  tackling  common 
unfair  practices  like  bait  advertising,132  fake  free  offers,  hidden  advertising  and  direct 
exhortations  to  children.  Provisions  of  the  Black  List  have  been  used  also  to  tackle  unfair 
practices in the fields of financial services and immovable property. 

This legal framework is also well suited to assessing the fairness of new online practices that 
are  developing  in  parallel  with  the  evolution  of  advertising  techniques.  It  can  provide  a 
prompt  enforcement  response  to  abuses  perpetrated  by  means  of  new  commonly  used  tools 
such as price comparison and collective booking websites or in relation, for example, to the 
increasing involvement of advertising in social networks. 

At cross-border level, around half of the actions taken under the CPC-Network (requests for 
information,  alerts  and  enforcement  requests)  concerned  infringements  of  the  UCPD.133  In 
addition,  several  joint  surveillance  actions  (‘sweeps’)  have  been  carried  out  by  the  CPC-
Network  on  the  basis  of  UCPD  provisions  (websites  selling  airline  tickets,  online  mobile 
phone services, websites selling consumer electronic goods).134 

Cooperation with national enforcement authorities and the implementation elements gathered 
in the UCPD Database reveal that the rules are mostly interpreted in a uniform manner. The 
clarifications  provided  by  the  ECJ  and  the  Commission  have  indeed  contributed  to  this 
process. 

130 
131 
132 

133 

134 

See UCPD, Article 6(2)(b). 
See above Section 4 of this Report on enforcement. 
See  Annex  I,  point  5  of  the  Directive.  This  prohibited  practice  involves  making  attractive  offers  to 
consumers when the trader is not to able to supply the product in the quantities expected based (inter 
alia) on the scale of advertising. 
From 2007 to 2010, out of 1343 CPC actions, 654 (48.7 %) related to UCPD infringements. See Report 
from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  application  of  Regulation 
(EC) 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),  12.3.2012  COM(2012)  100  final,  available  at 
http://ec.europa.eu/consumers/enforcement/docs/comm_biennial_report_2011_en.pdf 
http://ec.europa.eu/consumers/enforcement/index_en.htm 

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

The Europe 2020 Strategy calls for ‘citizens to be empowered to play a full role in the single 
market’, which ‘requires strengthening their ability and confidence to buy goods and services 
cross-border’.  The  high  level  of  consumer  protection  set  by  the  Directive  appears  to  be 
helping  to  boost  consumers’  confidence.  Recent  evidence  reveals  that  more  consumers  are 
now interested in making cross-border purchases (52 %, +19) and are willing to spend more 
money cross-border (18 %, +5) than in 2006, when the Directive had not yet been transposed 
in  the  Member  States.135  Nevertheless,  it  has  to  be  recognised  that  growth  in  online  cross-
border shopping lags far behind domestic growth, so it is clear that more needs to be done.136 
This  is  why  emphasis  now  needs  to  be  placed  on  correct  and  consistent  application  of  the 
Directive  as  a  precondition  for  EU  citizens  and  businesses  to  take  full  advantage  of  the 
opportunities offered by the Single Market.  

The Commission has identified retail trade (including e-commerce), the transport sector, the 
digital  economy  and  energy  /  sustainability  as  key  areas  where  the  Single  Market’s  growth 
potential is greatest.137 The Directive has a crucial role to play in this context. 

Further  efforts  should  therefore  be  made  in  terms  of  strengthening  UCPD  enforcement. 
Member  States’  resources  are  limited  and  the  deterrence  value  of  penalties  should  be 
improved. Cooperation in cross-border cases within the scope of the CPC Regulation should 
also be stepped up. 

The drive to step up enforcement activity both on a cross-border basis and at a national level 
calls for the Commission to take up 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 consistent application of the Directive, in particular with regard to unfair 
practices  having  a  cross-border  dimension  such  as  those  taking  place  in  the  online 
environment and which raise common questions for enforcers. 

6. 

CONCLUSIONS 

As announced in the Communication on the application of the Unfair Commercial Practices 
Directive accompanying this Report, it does not seem appropriate to amend the Directive at 
this  stage.  This  outcome  reflects  the  results  of  the  consultation  and  the  preliminary 
conclusions  drawn  from  the  enforcement  experience  in  the  Member  States,  which  is 
significant but still too limited in time for such a comprehensive body of legislation. 

135 

136 

137 

See  Flash  Eurobarometer  332  Consumers’  attitudes  towards  cross-border  trade  and  consumer 
protection,  May  2012,  p.  8.  More  consumers  are  now  interested  in  making  cross-border  purchases 
(52 %,  +19)  and  are  willing  to  spend  more  money  (18 %,  +5)  than  in  2006.  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. 
During the period 2008-2010, domestic business-to-consumer e-commerce grew from 28 % to 36 % of 
the  population  making  an  online  domestic  purchase,  while  cross-border  e-shoppers  have  only  grown 
from 6 % to 9 %. Only 9 % of European consumers said they shopped online cross-border in 2010 based 
on Eurostat, Information Society Statistics, 2010. 
See  the  European  Consumer  Agenda  and  the  Communication  of  the  European  Commission  ‘A  new 
governance pact for a better functioning Single Market.’ 

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The concerns  which  have been raised by some  stakeholders in relation to the application of 
the  UCPD  to  certain  specific  unfair  commercial  practices  can  be  addressed  by  initiatives  to 
improve  enforcement  in  the  Member  States.  In  this  connection,  as  outlined  in  the 
Communication, future efforts will need to concentrate on key thematic areas where detriment 
and  lost  opportunities  for  consumers  appear  to  be  most  frequently  recurring  and  where  the 
Single Market's growth potential is the biggest.  

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