COMMISSION STAFF WORKING DOCUMENT GUIDANCE ON THE IMPLEMENTATION/APPLICATION OF DIRECTIVE 2005/29/EC ON UNFAIR COMMERCIAL PRACTICES Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS A comprehensive approach to stimulating cross-border e-Commerce for Europe's citizens and businesses
Date: 2016-05-25
Institutions: European Commission, Secretariat-General
Subjects: advertising, advertising malpractice, application of EU law, approximation of laws, commercial law, consumer protection, single market, trade information, trade policy, unfair terms of contract

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 25.5.2016  SWD(2016) 163 final   COMMISSION STAFF WORKING DOCUMENT GUIDANCE ON THE IMPLEMENTATION/APPLICATION OF DIRECTIVE 2005/29/EC ON UNFAIR COMMERCIAL PRACTICES Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS A comprehensive approach to stimulating cross-border e-Commerce for Europe's citizens and businesses {COM(2016) 320 final}  
 
 
Contents 
INTRODUCTION ....................................................................................................................................... 5 

1. 

Scope of the UCPD ........................................................................................................................... 5 

1.1 

Commercial practices falling within the scope of the UCPD ................................................... 6 

1.1.1  After-sales practices, including debt collection activities ................................................... 6 

1.1.2  Traders buying products from consumers .......................................................................... 7 

1.2 

Commercial practices falling outside the scope of the UCPD .................................................. 8 

1.2.1  Commercial practices which do not affect the consumer’s economic interests ................ 8 

1.2.2  Commercial practices which relate to a business-to-business transaction or which harm 
only competitors’ economic interests ............................................................................................. 9 

1.3 

Full harmonisation ................................................................................................................. 11 

1.3.1  Sales promotions and price reductions ............................................................................. 11 

1.3.2  Exceptions to full harmonisation ...................................................................................... 12 

1.4 

Interplay between the Directive and other EU law ............................................................... 13 

1.4.1  Relationship with other EU legislation .............................................................................. 13 

1.4.2 

Impact on enforcement ..................................................................................................... 16 

1.4.3 

Information established by other EU law as ‘material’ information ................................. 16 

1.4.4 

Interplay with the Consumer Rights Directive .................................................................. 18 

1.4.5 

Interplay with the Unfair Contract Terms Directive .......................................................... 19 

1.4.6 

Interplay with the Misleading and Comparative Advertising Directive ............................ 20 

1.4.7 

Interplay with the Services Directive ................................................................................ 21 

1.4.8 

Interplay with the e-Commerce Directive ......................................................................... 21 

1.4.9 

Interplay with the Audiovisual Media Services Directive .................................................. 21 

1.4.10 

Interplay with the Data Protection Directive and the e-Privacy Directive ...................... 22 

1.4.11 

Interplay with Articles 101-102 TFEU (competition rules) .............................................. 25 

1.4.12 

Interplay with the EU Charter of fundamental rights ..................................................... 25 

1.4.13 

Interplay with Articles 34-36 TFEU .................................................................................. 26 

1.5 

1.6 

The relationship between the UCPD and self-regulation ...................................................... 27 

Application of the UCPD to traders established in third countries ........................................ 29 

2.  General concepts ........................................................................................................................... 29 

2.1 

2.2 

2.3 

2.4 

2.5 

2.6 

The notion of trader ............................................................................................................... 29 

The concept of commercial practice ...................................................................................... 32 

The concept of ‘transactional decision’ ................................................................................. 33 

To ‘materially distort the economic behaviour of consumers’ .............................................. 35 

'Average consumer’ ............................................................................................................... 37 

Vulnerable consumers ........................................................................................................... 42 

2 

 
 
2.6.1  The vulnerability criteria in Article 5(3) ............................................................................. 43 

2.6.2 

‘Foreseeability’ requirement ............................................................................................. 46 

2.7 

Invitation to purchase — the concept ................................................................................... 47 

3.  Provisions of the UCPD .................................................................................................................. 49 

3.1 

3.2 

The functioning of the UCPD – Directive flowchart ............................................................... 49 

The general clause — the requirements of professional diligence ....................................... 49 

3.3  Misleading actions ................................................................................................................. 51 

3.3.1  General misleading information........................................................................................ 53 

3.3.2  Confusing marketing ......................................................................................................... 58 

3.3.3  Non-compliance with codes of conduct ............................................................................ 61 

3.4  Misleading omissions ............................................................................................................. 62 

3.4.1  Material information ......................................................................................................... 63 

3.4.2  Hidden marketing/failure to identify commercial intent .................................................. 63 

3.4.3  Material information provided in an unclear manner ...................................................... 66 

3.4.4  The factual context and limits of the communication medium used ............................... 67 

3.4.5  Material information in invitations to purchase — Article 7(4) ........................................ 68 

3.4.6  Free trials and subscription traps ...................................................................................... 73 

3.4.7  Provision of certain information in another language ...................................................... 75 

3.4.8  Planned obsolescence ....................................................................................................... 75 

3.5 

Aggressive commercial practices ........................................................................................... 76 

4. 

The black list of commercial practices (Annex I) ........................................................................... 79 

4.1 

4.2 

Products which cannot legally be sold — banned commercial practice No 9 ....................... 80 

Pyramid schemes — banned commercial practice No 14 ..................................................... 80 

4.3 
Products  which  cure  illnesses,  dysfunctions  and  malformations  —  banned  commercial 
practice No 17 ................................................................................................................................... 83 

4.4 

4.5 

4.6 

4.7 

Use of the word ‘free’ — banned commercial practice No 20 .............................................. 86 

Persistent marketing by a remote tool — banned commercial practice No 26 .................... 89 

Direct exhortations to children — banned commercial practice No 28 ................................ 90 

Prizes — banned commercial practice No 31 ........................................................................ 93 

5.  Application of the UCPD to specific sectors .................................................................................. 95 

5.1 

Environmental claims ............................................................................................................. 95 

5.1.1 

Interplay with other EU legislation on environmental claims ........................................... 95 

5.1.2  Main principles: Articles 6, 7 and 12 of the UCPD applied to environmental claims ....... 97 

5.1.3  Application of Article 6 of the UCPD to environmental claims ......................................... 98 

5.1.4  Application of Article 7 of the UCPD to environmental claims ....................................... 101 

5.1.5  Application of Article 12 of the UCPD to environmental claims ..................................... 104 

5.1.6  Application of Annex I to environmental claims ............................................................. 107 

5.1.7  Comparing environmental claims ................................................................................... 108 

3 

 
5.2 

Online sector ........................................................................................................................ 109 

5.2.1  Online platforms .............................................................................................................. 110 

5.2.2  The applicability of the UCPD to online platforms .......................................................... 110 

5.2.3  E-commerce platforms (marketplaces) ........................................................................... 115 

5.2.4  App stores ....................................................................................................................... 117 

5.2.5  Collaborative economy ................................................................................................... 119 

5.2.6  Search engines ................................................................................................................ 120 

5.2.7  Comparison tools ............................................................................................................ 121 

5.2.8  User review tools ............................................................................................................. 126 

5.2.9  Social media .................................................................................................................... 129 

5.2.10  Collective buying platforms ........................................................................................... 131 

5.2.11  Dynamic pricing ............................................................................................................. 132 

5.2.12  Price discrimination ....................................................................................................... 133 

5.2.13  Personalised pricing ...................................................................................................... 134 

5.2.14  Use of geo-localisation techniques ............................................................................... 136 

5.3 

Travel and transport sector ................................................................................................. 137 

5.3.1  Cross-cutting issues ......................................................................................................... 137 

5.3.2  Package Travel ................................................................................................................. 140 

5.3.3  Timeshare contracts ........................................................................................................ 141 

5.3.4 

Issues relevant in particular to air transport ................................................................... 142 

5.3.5 

Issues specific to car rental ............................................................................................. 145 

5.4 

Financial services and immovable property ........................................................................ 146 

5.4.1  Cross-cutting issues ......................................................................................................... 146 

5.4.2 

Issues specific to immovable property ............................................................................ 148 

5.4.3 

Issues specific to financial services ................................................................................. 149 

Annex I: Case-law from the CJEU on the UCPD (ordered by year) ...................................................... 153 

4 

 
 
 
 
INTRODUCTION 

The  purpose  of  this  guidance  document  is  to  facilitate  the  proper  application  of  Directive 
2005/29/EC on unfair business-to-consumer commercial practices in the internal market (‘the 
UCPD’).  It  provides  guidance  on  the  UCPD’s  key  concepts  and  provisions  and  practical 
examples taken from the case-law of the Court of Justice of the European Union (thereinafter 
'The  Court')  and  from  national  courts  and  administrations  on  how  to  implement  it.  It  builds 
upon and replaces the 2009 version of the Guidance.1  

The UCPD constitutes the overarching piece of EU legislation regulating unfair commercial 
practices  in  business-to-consumer  transactions.  It  applies  to  all  commercial  practices  that 
occur before (i.e. during advertising or marketing), during and after a business-to-consumer 
transaction has taken place.   

The  2013  Communication  on  the  application  of  the  Unfair  Commercial  Practices  Directive2 
and its accompanying Report3 have shown that there is a need to step up enforcement of the 
UCPD  provisions.  To  facilitate  enforcement  activities  and  ensure  legal  certainty,  this 
Guidance  highlights  questions  that  are  common  to  all  Member  States.  This  includes  topics 
such as:  

 

 

the interplay between the UCPD and other EU legislation;  

the mounting case-law of the Court and national courts;  

  how the UCPD applies to new and emerging business models, especially in the online 

sector. 

This  guidance  is  linked  to  the  Commission's  Communication  on  "a  comprehensive 
approach to stimulating cross border e-Commerce for Europe's citizens and businesses" 
(COM(2016)320),  in  particular  section  6  thereto.  It  was  prepared  by  the  Commission 
services  and  does  not  necessarily  reflect  the  views  of  the  European  Commission.  It  is 
intended to facilitate the implementation of Directive 2005/29/EC on unfair commercial 
practices. However, it is itself not legally binding. Any authoritative reading of the law 
should only be derived from Directive 2005/29/EC itself and other applicable legal acts 
or  principles.  Only  the  Court  of  Justice  of  the  European  Union  is  competent  to 
authoritatively interpret Union law.  

The  assessment  of  whether  a  commercial  practice  is  unfair  under  the  UCPD  must, 
except in the case of the practices listed in Annex I to the Directive, be performed on a 
case-by-case basis.  The power to make this assessment rests with the Member States.  

1. 

SCOPE OF THE UCPD 

1  SEC(2009) 1666. 
2  COM(2013) 138 final, 14.3.2013. 
3  COM(2013) 139 final, 14.3.2013. 

5 

 
 
 
  
                                                            
Article 3(1) 

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

The Directive is horizontal in nature and protects the economic interests of consumers. 
Its principle-based provisions address a wide range of practices and are sufficiently broad to 
catch fast-evolving products, services and sales methods. 

1.1 

Commercial practices falling within the scope of the UCPD 

Article 2(d) 

business-to-consumer  commercial  practices’  (hereinafter  also  referred  to  as  commercial 
practices)  means  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. 

Article 2(c) 

‘product’ means any good or service including immovable property, rights and obligations. 

This  section  mainly  focuses  on  examples  of  commercial  practices  for  which  there  can  be  a 
need to clarify that they do fall within the scope of the UCPD. The application of the UCPD 
to online business models is discussed in Chapter 5.2. 

1.1.1 

After-sales practices, including debt collection activities 

Under Article 3(1), commercial practices occur not only during the marketing and supply 
stages, but also after the transaction has been made.  

Recital 13 of the UCPD also refers to ‘unfair commercial practices which occur outside any 
contractual  relationship  between  a  trader  and  a  consumer  or  following  the  conclusion  of  a 
contract and during its execution’. 

For example: 

  A  trader  who  uses  onerous  or  disproportionate  non-contractual  barriers  to 
prevent a consumer from switching service providers: the Italian competition 
authority  (AGCM)  fined  a  telecoms  company  for  delaying  and  preventing  its 
customers from switching to another service provider.4  

Some national authorities stated that, irrespective of whether a trader has assigned a claim to a 
third party, debt collection activities should be regarded as after-sales commercial practices, 

4  PS1268  -  TELE2-ostruzionismo  migrazione,  Provv.  n.  20266  del  03/09/2009  (Bollettino  n.  36/2009);  PS1700  -  Tiscali-ostruzionismo 

passaggio a TELECOM, Provv. n. 20349 del 01/10/2009 (Bollettino n. 40/2009). 

6 

 
 
 
  
 
 
 
 
 
 
 
                                                            
because the debt collection is directly connected with the sale or supply of products. There are 
no objective reasons to differentiate that assessment based on whether a trader outsources it 
through specialised agencies or not. 

This  is  also  implied  in  No  25  of  Annex  I  which  considers  the  practice  of  ‘Conducting 
personal  visits  to  the  consumer’s  home  ignoring  the  consumer’s  request  to  leave  or  not  to 
return except in circumstances and to the extent justified, under national law, to enforce a 
contractual obligation’ as unfair in all circumstances. 

For example: 

  A Slovakian court held that informing a consumer who is not complying with 

his  financial  obligations  that  his  name  will  be  published  as  a  default  payer  in  local 
media is an aggressive commercial practice.5 

  The  Italian  competition  authority  (AGCM)  took  action  against  a  debt  collector  that 
used  a  logo,  name  and  documents  that  were  similar  to  those  used  by  official  Italian 
agencies. The trader gave consumers the misleading impression that it was enforcing 
official court orders to force consumers to pay their debts when in fact such powers 
are reserved for public authorities.6 

  The Polish authority (UOKiK) considered debt collection as an after-sale commercial 
practice falling within the scope of the UCPD and fined a debt collection agency for 
misleading  consumer  debtors  about  the  extent  and  gravity  of  adverse  consequences 
they would face,  would they  fail to  settle their debt  immediately. The debt  collection 
agency also failed to properly inform consumers about the exact contractual basis for 
the debt and exercised on them undue psychological pressure7. 

1.1.2 

Traders buying products from consumers 

Certain  traders  may,  in  the  course  of  their  professional  activity,  purchase  products  from 
consumers. Examples of this include car dealers, antique dealers and retailers of second-hand 
goods. 

According  to  the  definition  provided  in  the  UCPD,  commercial  practices  are  only  those 
‘directly  connected  with  the  promotion,  sale  or  supply  of  a  product  to  consumers’.  The 
reverse  situation,  where  traders  purchase  products  from  consumers,  does  not  fall  within  the 
scope of the UCPD. However, there are cases where a link can be established between the 
sale of a product by a consumer to a trader and the promotion, sale or supply of a (different) 
product to the consumer. 

For  instance,  trade-in  agreements  are  common  place  in  the  motor  vehicle  trade.  The  trader 
purchases  a  used  vehicle  from  the  consumer  who  in  turn  buys  a  vehicle  from  the  trader.  In 

5  Krajsky sud v Presove, 27 October 2011, 2Co/116/2011. 
6  PS9042 - Esattoria-Agenzia Riscossioni. Provvedimento n. 24763, 22 January 2014.  
7  DKK – 61 – 10/07/DG/IS 

7 

 
 
 
 
 
 
                                                            
such cases, the trader’s purchase could be considered as part of the remuneration given by the 
consumer  for  the  business-to-consumer  part  of  the  transaction.  Trade-in  agreements  clearly 
fall within the scope of the UCPD. 

For example: 

  The  UK  Office  of  Fair  Trading  (now:  Competition  and  Markets  Authority  - 

CMA)  investigated  the  practice  of  companies  specialized  in  buying  used  cars  from 
consumers, considering that it falls within the scope of the UCPD. In particular, the 
UK  authority  took  action  against  a  used  car  buying  company  on  the  ground  that its 
online evaluations could be misleading8. 

The  purchase  and  resale  of  gold  could  in  some  circumstances  fall  under  the  UCPD.  For 
example,  a  trader,  who  offers  consumers  a  professional  evaluation  for  their  gold  before 
buying it, could be considered as providing a service to the consumers. When this is the case, 
the  UCPD  will  apply  and,  as  a  consequence,  the  trader  should  not  provide  misleading 
information on the real value of the gold or on the price of the service offered (e.g. omission 
of ‘administrative fees’). 

For example: 

 

‘A trader who is an expert on Chinese pottery tells a consumer that a Ming vase she 
wants  to  sell  to  him  is  a  fake.  If  it  is  not  the  case,  the  statement  would  be  likely  to 
amount to a misleading action’. 

1.2 

 Commercial practices falling outside the scope of the UCPD 

1.2.1  Commercial practices which do not affect the consumer’s economic interests 

Article 1 

The purpose of this Directive is to contribute to the proper functioning of the internal market 
and achieve a high level of consumer protection by approximating the laws, regulations and 
administrative  provisions  of  the  Member  States  on  unfair  commercial  practices  harming 
consumers’ economic interests. 

The UCPD  does  not  cover national rules intended to  protect  interests which are  not of  an 
economic nature. Therefore, the UCPD does not affect the possibility of Member States to 
set  rules  regulating  commercial  practices  for  reasons  of  health,  safety  or  environmental 
protection.  Also  existing  national  rules  on  marketing  and  advertising,  based  on  ‘taste  and 
decency’ are not covered by the UCPD. According to Recital 7, ‘This Directive […] does not 

8  Case Webuyanycar - CRE-E/25631, 28 March 2011, https://www.gov.uk/cma-cases/we-buy-any-car-unfair-practices-by-trader-offering-

vehicle-buying-service 

8 

 
 
 
 
 
 
 
  
 
 
 
                                                            
address  legal  requirements  related  to  taste  and  decency  which  vary  widely  among  the 
Member  States.  […]  Member  States  should  accordingly  be  able  to  continue  to  ban 
commercial  practices  in  their  territory,  in  conformity  with  Community  law,  for  reasons  of 
taste and decency even where such practices do not limit consumers’ freedom of choice. […].’ 

Therefore, in the context of commercial practices, the UCPD does not cover national rules 
on protecting human dignity, preventing sexual, racial and religious discrimination or on 
the depiction of nudity, violence and antisocial behaviour. 

For example: 

  The  Court  clarified  that  the  UCPD  did  not  apply  to  a  national  provision 

preventing a trader from opening its shop seven days a week by requiring traders to 
choose  a  weekly  closing  day,  as  this  specific  provision  did  not  pursue  objectives 
related to consumer protection.9 

Conversely,  national  rules  that  aim  to  protect  the  economic  interest  of  consumers,  in 
conjunction with other interests, do fall within its scope. 

For example: 

  National  rules  banning  sales  with  bonuses:  the  Court  has  clarified  that  the 

UCPD  precludes  a  general  national  ban  on  sales  with  bonuses  that  is  designed  to 
achieve  consumer  protection  and  other  objectives  (such  as  the  pluralism  of  the 
press).10 

  National  rules  allowing  clearance  sales  to  be  announced  only  if  authorised  by  the 
competent  district  administrative  authority:  the  Court  noted  that  the  referring  court 
had  implicitly  accepted  that  such  a  provision,  which  was  at  stake  in  the  case,  was 
aimed  at the protection of  consumers  and not solely at the protection of  competitors 
and other operators in the market. Therefore, the UCPD was applicable.11 

1.2.2  Commercial  practices  which  relate  to  a  business-to-business  transaction  or  which 

harm only competitors’ economic interests 

Recital 6 

This  Directive  […]  neither  covers  nor  affects  the  national  laws  on  unfair  commercial 
practices which harm only competitors’ economic interests or which relate to a transaction 
between traders; taking full account of the principle of full subsidiarity, Member States will 
continue  to  be  able  to  regulate  such  practices  in  conformity  with  Community  law,  if  they 
choose to do so [...]. 

9  Case C-559/11, Pelckmans Turnhout NV, 4 October 2012. 
10  Case C-540/08 Mediaprint, 9 November 2010.  
11  Case C-206/11, Köck, 17 January 2013, paragraph 31.  

9 

 
 
 
 
 
 
 
  
 
 
                                                            
Business-to-business  (‘B2B’)  commercial  practices  do  not  fall  within  the  scope  of  the 
UCPD.  They  are  partly  regulated  under  the  Misleading  and  Comparative  Advertising 
Directive.12  Member  States  may  also  extend,  under  their  national  laws,  the  protection 
granted under the UCPD to B2B commercial practices.13 

Only measures which protect exclusively competitors’ interests fall outside the scope of 
the  UCPD.  Where  national  measures  regulate  a  practice  with  the  dual  aim  of  protecting 
consumers and competitors, such national measures are covered by the UCPD. 

Regarding  the  distinction  between  consumers’  and  competitors’  interests,  the  Court 
considered that: 

‘39 
[…] As is evident from recital 6 in the preamble to [the UCPD], only national 
legislation  relating  to  unfair  commercial  practices  which  harm  ‘only’  competitors’ 
economic interests or which relate to  a transaction between traders is thus excluded 
from that scope. 

40 
[…] that is quite clearly not the case with the national provisions [that] refer 
expressly to the protection of consumers and not only to that of competitors and other 
market participants.’14 

It  is  for  national  authorities  and  courts  to  decide  whether  a  national  provision  is 
intended to protect consumer interests.  

The Court noted that: 

‘29 
It is therefore for the national court and not for this Court to establish whether 
the national provisions […] concerning price reduction announcements to consumers, 
actually  pursue  objectives  relating  to  consumer  protection,  in  order  to  determine 
whether such provisions are liable to fall within the scope of the Unfair Commercial 
Practices Directive […].’15 

1 

of 

the 

Act 

Unfair 

Federal 

Practises 

Marketing 

Competition 

12  Directive 2006/114/EC concerning misleading and comparative advertising. 
13  Seven Member States currently apply the UCPD also to B2B relations. Out of those, Austria (see § 1(1) of the Federal Act amending the 
at 
against 
1984 
(see 
https://webgate.ec.europa.eu/ucp/public/index.cfm?event=public.country.viewFile&lawID=36&languageID=EN) 
Section 
at 
https://webgate.ec.europa.eu/ucp/public/index.cfm?event=public.country.viewFile&lawID=38&languageID=EN)  have  extended  all  its 
provisions to B2B commercial practices. Instead, Denmark (The Marketing Practices Act, Consolidated Act no. 58 of 20 January 2012 
as amended by section 33 of Act no. 1231 of 18 December 2012, section 5 of Act no. 1387 of 23 December 2012 and section 1 of Act no. 
378 of 17 April 2013), France (Cf. Article L. 121-1, I and III and L. 121-1-1 of the Consumer Code), Germany (Cf. Section 3 of the 
Unfair  Competition  Act  (UWG)  at  http://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.html#UWGengl_000P3),  Italy  (See 
Article 19 of the Consumer Code as amended by Article 7, co.2 of Decree-Law 1/2012, converted with amendments into Law March 24, 
2012, n. 27), and Belgium (Chapter 4 of Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur) apply 
it with some modulation. In Denmark, businesses are protected by provisions on both misleading and aggressive practices. France applies 
Article 6 and Annex I (limited to the misleading practices part of the UCPD) to B2B transactions exclusively. In Germany, parts of the 
Directive  also  apply  to  business-to-business  commercial  practices.  Italy  has  extended  the  application  of  the  Directive  to  ‘micro-
enterprises’ (defined as an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total 
does not exceed EUR 2 million’, based on the Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of 
micro, small and medium-sized enterprises [Official Journal L 124 of 20.05.2003]. Belgium has extended the scope of its legislation to 
B2B transactions only for certain banned practices listed in Annex I.  

and  Sweden 

(2008:486) 

Act 

14  C-304/08, Plus Warenhandelsgesellschaft, 14 January 2010. 
15  Case C-13/15, Cdiscount, Order 8 September 2015. 

10 

 
 
                                                            
The Court has also found that the UCPD precludes a national provision prohibiting sales at 
loss only in so far as its aim is to protect consumers.16 

Regarding national rules prohibiting price reductions during pre-sales periods, the Court 
has clarified that such a prohibition is not compatible with the UCPD if it seeks to protect the 
economic interests of consumers.17  

However it also found that a national provision does not fall within the scope of the UCPD ‘if 
it aims solely, as argued by the referring court, at regulating relations between competitors 
and does not aim at protecting consumers.18  

1.3 

Full harmonisation  

The  UCPD  is  based  on  the  principle  of  full  harmonisation.  In  order  to  remove  internal 
market  barriers  and  increase  legal  certainty  for  both  consumers  and  businesses,  a  uniform 
regulatory framework harmonising national rules was established at EU level.19   

The Court has further clarified this. It held that ‘the Directive fully 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’.20  

Consequently, the Directive was found to preclude a national general prohibition on combined 
offers. 

1.3.1 

Sales promotions and price reductions 

The  UCPD  covers  commercial  practices  such  as  combined  or  tied  offers,  discounts,  price 
reductions, promotional sales, commercial lotteries, competitions and vouchers. 

The  UCPD  includes  several  provisions  on  promotional  practices  (e.g.  Article  6(d)  on  the 
existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special 
offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers).21 

The Court has clarified that rules requiring a price reduction to refer to a reference price and 
the duration of the promotion are not compliant with the UCPD: 

‘61. Consequently, national rules of this nature, which place a general prohibition on 
practices  not  referred  to  in  Annex  I  to  Directive  2005/29,  without  providing  for  an 
individual analysis as to whether the practices are ‘unfair’ in the light of the criteria 
laid down in Articles 5 to 9 of that directive, are not permitted under Article 4 thereof 

16  Case C-343/12, Euronics, paragraph 31, Order of 7 March 2013. 
17  Case C-288/10 (Wamo), paragraph 40, Order of 30 June 2011. 
18  Case C-126/11 (Inno), Order of 15 December 2011, paragraph 29. 
19  See in particular Recitals 5, 12 and 13 of the Directive.  
20  Joined Cases C-261/07 and C-299/07 VTB-VAB NV v Total Belgium, and Galatea BVBA v Sanoma Magazines Belgium NV, Judgment of 

23 April 2009, paragraph 52.  

21  See also judgments of the Court in Joined Cases C-261/07 and C-299/07 VTB-VAB NV v Total Belgium, and Galatea BVBA v Sanoma 
Magazines Belgium NV, Judgement of 23 April 2009Case C-304/08, Plus Warenhandelsgesellschaft, 14 January 2010, Case C-540/08, 
Mediaprint; 9 November 2010, Case C-522/08, Telekomunikacja Polska, 11 March 2010. 

11 

 
                                                            
and run counter to the complete harmonisation objective pursued by that directive, 
even where they seek to achieve a higher level of consumer protection […]’ 22 

The UCPD does not expressly require traders to display price reductions in specific ways or to 
state the reasons for the reduced prices. Whether a trader acts contrary to the UCPD should be 
assessed on a case-by-case basis.  

Questions  on  price  promotions  and  the  full  harmonisation character  of  the  UCPD  have  also 
been raised in light of the Price Indication Directive.23  

The purpose of that Directive is to require traders to state the retail price, the unit price and 
the measurement of products in order to facilitate price comparisons by consumers.  

It has been argued that, for pricing policies linked to promotional campaigns, that Directive's 
objectives can only be achieved by introducing more restrictive requirements on how the price 
should be indicated than what follows from the UCPD.  

The Court found that: 

‘59. […] the purpose of Directive 98/6 is not to protect consumers in relation to the 
indication  of  prices,  in  general  or  with  regard  to  the  economic  reality  of 
announcements  of  price  reductions,  but  specifically  in  relation  to  the  indication  of 
the prices of products by reference to different units of quantity’.24 

The  Court  further  concluded  that  keeping  more  restrictive  national  provisions  on  price 
reductions cannot be justified under the Price Indication Directive. 

1.3.2 

Exceptions to full harmonisation 

Article 3(5) and (6) of the UCPD laid down a temporary derogation from full harmonisation 
for six years starting from 12 June 2007. This applied to national provisions which implement 
directives  containing  minimum  harmonisation  clauses.25  The  Commission’s  2013  Report  on 
the  application  of  the  UCPD  concluded  that  there  was  no  need  to  further  extend  this 
derogation.26 Since 12 June 2013, Articles 3(5) and 3(6) of the UCPD are therefore no longer 
applicable. 

Recital  14  clarifies  that  the  full  harmonisation  does  not  preclude  Member  States  from 
specifying  in  national  law  the  main  characteristics  of  particular  products,  the  omission  of 
which  would  be  material  when  an  invitation  to  purchase  is  made.  It  also  clarifies  that  the 

22  Case C-421/12, European Commission v Kingdom of Belgium, 10 July 2014. 
23  Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication  of the 

prices of products offered to consumers, OJ L 80, 18.3.1998, p. 27.  

24   Case C-421/12, European Commission v Kingdom of Belgium, 10 July 2014. 
25  Article 3 (5) and (6) of the UCPD read as follows:  

‘5. For a period of six years from 12 June 2007, Member States shall be able to continue to apply national provisions within  the field 
approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing 
minimum  harmonisation  clauses.  These  measures  must  be  essential  to  ensure  that  consumers  are  adequately  protected  against  unfair 
commercial practices and must be proportionate to the attainment of this objective. The review referred to Article 18 may, if considered 
appropriate, include a proposal to prolong this derogation for a further limited period. 
6. Member States shall notify the Commission without delay of any national provisions applied on the basis of paragraph 5’. 

26  COM(2013) 139 final, section 2.4 ‘Derogations’. 

12 

 
                                                            
UCPD  is  without  prejudice  to  provisions  of  EU  law  which  expressly  afford  Member  States 
the choice between several regulatory options for the protection of consumers in the field of 
commercial practices.   

Article  3(9)  places  a  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’.  Consequently,  in  these  sectors,  Member  States  can  impose  rules 
which  go  beyond  the  provisions  of  the  UCPD,  as  long  as  they  comply  with  other  EU  law. 
Chapter  5.4  specifically  deals  with  how  the  UCPD  applies  to  financial  services  and 
immovable property. 

1.4 

Interplay between the Directive and other EU law 

Article 3 (4) 

In  the  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. 

Recital 10 

It is necessary to ensure that the relationship between this Directive and existing Community 
law is coherent, particularly where detailed provisions on unfair commercial practices apply 
to  specific  sectors.  […]  This  Directive  accordingly  applies  only  in  so  far  as  there  are  no 
specific  Community  law  provisions  regulating  specific  aspects  of  unfair  commercial 
practices, such as information requirements and rules on the way the information is presented 
to  the  consumer.  It  provides  protection  for  consumers  where  there  is  no  specific  sectorial 
legislation at Community level and prohibits traders from creating a false impression of the 
nature  of  products.  This  is  particularly  important  for  complex  products  with  high  levels  of 
risk  to  consumers,  such  as  certain  financial  services  products.  This  Directive  consequently 
complements  the  Community  acquis,  which  is  applicable  to  commercial  practices  harming 
consumers’ economic interests. 

Due to its general scope, the Directive applies to many commercial practices which are also 
regulated by other general or sector-specific EU legislation.  

1.4.1 

Relationship with other EU legislation 

Article  3(4)  and  Recital  10  are  key  features  of  the  UCPD.  They  clarify  that  the  UCPD 
complements  other  EU  legislation  ("Community  rules")  that  regulate  specific  aspects  of 
unfair commercial practices. Consequently, the UCPD works as a "safety net" ensuring that a 
high  common  level  of  consumer  protection  against  unfair  commercial  practices  can  be 
maintained in all sectors, including by complementing and filling gaps in other EU law.  

Where  sector-specific  or  other  EU  law  is  in  place  and  its  provisions  overlap  with  the 
provisions of the UCPD, the corresponding provisions of the lex specialis will prevail. Article 
3(4)  of  the  Directive  clarifies  indeed  that  "in  case  of  conflict  between  the  provisions  of  this 

13 

 
  
 
 
 
 
Directive  and  other  Community  rules  regulating  specific  aspects  of  unfair  commercial 
practices, the latter shall prevail and apply to those specific aspects". 

Article  3(4)  read  in  conjunction  with  Recital  10  implies  that  a  provision  of  EU  law  will 
prevail over the UCPD if all of the following three conditions are fulfilled: 

  it has the status of EU law, 

  it regulates a specific aspect of commercial practices, and 

  there  is  a  conflict  between  the  two  provisions  or  the  content  of  the  other  EU  law 
provision  overlaps  with  the  content  of  the  relevant  UCPD  provision,  for  instance  by 
regulating the conduct at stake in a more detailed manner and/or by being applicable 
to a specific sector. 

For example: 

  Article  12  of  the  Mortgage  Credit  Directive27  prohibits,  in  principle,  tying 

practices  whereby  a  credit  agreement  for  a  mortgage  is  sold  with  another  financial 
product  and  is  not  made  available  separately.  This  per  se  prohibition  conflicts  with 
the  UCPD  because  tying  practices  would  be  unfair  and  thus  prohibited  under  the 
UCPD  only  following  a  case-by-case  assessment.  Its  Article  12  prevails  over  the 
general rules of the UCPD. Thus, tying practices within the meaning of Article 12 of 
the Mortgage Credit Directive are prohibited as such. 

Where all three conditions set out above are fulfilled, the UCPD will not apply to the specific 
aspect  of  the  commercial  practice  regulated,  for  example,  by  a  sector-specific  rule.  The 
UCPD  continues  nonetheless  to  remain  relevant  to  assess  other  possible  aspects  of  the 
commercial  practice  not  covered  by  the  sector-specific  provisions,  such  as,  for  example, 
aggressive behaviour by a trader.   

For example: 

 

In order to switch to a different telecom provider, a consumer is required by 
his current provider to fill in a form. However, the form is not accessible on-line and 
the provider is not replying to the consumer's emails/phone-calls. This  behaviour is 
not prohibited by Article 30 of the Universal Service Directive28, which only provides 
that,  when  switching,  subscribers  may  retain  their  phone  number,  the  porting  of 
numbers  shall  be  carried  out  quickly  and  not  be  overly  costly.  It  can  however  be 
assessed  under  Articles  8  and  9(d)  UCPD,  which  qualify  disproportionate  non-

27  Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property. Member States had until 21 March 

2016 to transpose it in their legal system. 

28  The  Universal  Service  Directive  2002/22/EC  (as  amended  in  2009)  is  one  of  the  five  directives  of  the  EU  regulatory  framework  for 
electronic  communications.  It  also  includes  Directive  2002/21/EC  on  a  common  regulatory  framework  for  electronic  communications 
networks  and  services,  Directive  2002/20/EC  on  the  authorisation  of  electronic  communications  networks  and  services,  Directive 
2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities and Directive 2002/58/EC 
on ePrivacy. 

14 

 
 
 
 
 
                                                            
contractual barriers to switching as an aggressive commercial practice29.  

It follows from the above that, in general, the application of the UCPD is not per se excluded 
just  because  other  EU  legislation  is  in  place  which  regulates  specific  aspects  of  unfair 
commercial practices.    

For example: 

 

In Joined Cases C-544/13 and C-545/13, the Court noted30: 

 "(…) the referring court asks, in essence, whether, if medicinal products for human use […] 
fall  within  the  scope  of  Directive  2001/83,  advertising  practices  relating  to  those  medicinal 
products […] can also fall within the scope of Directive 2005/29.(…) 

As  the  Court  has  already  held,  Directive  2005/29  is  characterised  by  a  particularly  wide 
scope ratione materiae which extends to any commercial practice directly connected with the 
promotion, sale or supply of a product to consumers. (…) 

"the answer (…) is that even where medicinal products for human use, such as those at issue 
in  the  main  proceedings,  fall  within  the  scope  of  Directive  2001/83,  advertising  practices 
relating to those medicinal products […] can also fall within the scope of Directive 2005/29 
provided that the conditions for application of that directive are satisfied."  

Therefore  the  UCPD  can  usually  be  applied  together  with  sector-specific  EU  rules  in  a 
complementary manner; thus, the more specific requirements laid down under other EU rules 
usually add to the general requirements set out in the UCPD, typically to prevent traders from 
providing  the  information  required  by  the  sector  specific  legislation  in  a  misleading  or 
aggressive manner, unless this aspect is specifically regulated by the sector-specific rules.     

For example: 

  Motor  vehicles  are  subject  to  fully  harmonised  EU  requirements  defining 
pollutant  emission  limits  and  the  procedures  for  testing  pollutant  and  CO2 
emissions  as  well  as  fuel  consumption  (see  Regulation  715/2007/EC).31  To  help 
consumers  choose  vehicles  with  low  fuel  consumption,  Directive  1999/94/EC 
specifically requires that information on official fuel consumption and CO2 emissions is 
provided  to  potential  buyers  of  new  passenger  cars  offered  for  sale  or  lease  in  the 
EU.32  A  failure  to  do  so,  combined  with  an  aggressive  marketing  behaviour,  such  as 

29  For  example,  the  UK  regulator  Ofcom  launched  in  June  2015  an  investigation  into  consumer  problems  with  switching  electronic 

communications providers using as legal basis both the sector-specific provisions and the rules transposing the UCPD. 

30  Joined Cases C-544/13 and C-545/13, 16 July 2015, paragraphs 72, 74 and 82. 
31  Work is currently ongoing to update the procedures for the emission testing of vehicles: http://europa.eu/rapid/press-release_MEMO-15-

5705_en.htm 

32  Articles  3,  4,  5  and  6  of  this  Directive  lay  down  specific  information  requirements  related  to  fuel  economy  and  CO2  emissions  for 
passenger cars, e.g., that a label on fuel economy and CO2 emissions be attached to or displayed, in a clearly visible manner, near each 
new passenger car model at the point of sale. Member States shall also ensure that promotional material indicates CO2 emission data and 
fuel consumption data. 

15 

 
 
 
 
 
 
 
 
    
                                                            
pressure selling, would expose the relevant trader to the risk of being found in breach 
of both  Directive 1999/94/EC and the UCPD33.   

1.4.2 

Impact on enforcement 

Article 11 
1.  Member  States  shall  ensure  that  adequate  and  effective  means  exist  to  combat 
unfair  commercial  practices  in  order  to  enforce  compliance  with  the  provisions  of  this 
Directive in the interest of consumers. 

Based  on  Article  11,  in  order  to  ensure  the  proper  enforcement  of  EU  consumer  protection 
laws,  Member  States  should  ensure  coordination  in  good  faith  between  the  different 
competent enforcement authorities. In those Member States where different authorities are 
responsible  for  enforcing  the  UCPD  and  sector-specific  legislation,  the  authorities  should 
closely  cooperate  to  ensure  that  the  findings  of  their  respective  investigations  into  the  same 
trader and/or commercial practice are consistent. 

1.4.3 

Information established by other EU law as ‘material’ information  

Article 7(5) 

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

‘Information  requirements  established  by  Community  law  in  relation  to  commercial 
communication’  are  found  in  a  number  of  pieces  of  sector-specific  EU  legislation.  For 
example:  

  environment (e.g. Energy Labelling Directive,34 Eco-design Directive,35 Fuel economy 

Directive36);  

33  During  autumn  2015,  national  consumer  authorities  in  several  Member  States,  including  Poland,  Italy  and  Ireland,  have  started 
investigations of the marketing practices of a leading car producer and its distribution network on the suspicion that it had failed to enable 
its  customers  to  take  a  truly  informed  transactional  decision.  See  for  example:  http://www.agcm.it/en/newsroom/press-releases/2244-
italian-competition-agency-launched-an-ex-officio-investigation-into-volkswagen-ag-and-its-distribution-network-in-italy.html 
and: 
https://uokik.gov.pl/news.php?news_id=11973 

34  Directive  2010/30/EU  on  information  on  the  consumption  of  energy  and  other  resources  by  energy-related  products  requires  that 
household appliances and energy related products offered for sale, hire or hire-purchase be accompanied by a fiche and a label providing 
information relating to their consumption of energy (electrical or other) or of other essential resources. 

35  Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products contains a specific 

information requirement on the role consumers can play in the sustainable use of the product. 

36  Directive  1999/94/EC  relating  to  the  availability  of  consumer  information  on  fuel  economy  and  CO2  emissions  in  respect  of  the 
marketing  of  new  passenger  cars  requires  the  display  of  a  fuel  economy  label  next  to  all  new  passenger  cars  at  the  point  of  sale 
containing, in particular, the official data on fuel consumption. 

16 

 
 
  
 
 
  
 
 
 
 
                                                            
  financial services (e.g. Markets in Financial Instruments Directive,37 Payment Services 
Directive,38  Consumer  Credit  Directive,39  Mortgage  Credit  Directive,40  Payment 
Accounts Directive,41 the Regulation on key information documents for PRIIPs42);  

  health (e.g. Directive 2001/83/EC43);  

  telecommunications (e.g. Universal Service Directive44);  

  transport (e.g. Air Services Regulation,45 Passenger Rights Regulation46) 

Such information requirements will often be more specific than the information requirements 
of the UCPD.    

Article 7(5) of the UCPD clarifies that such information requirements  ‘shall be regarded as 
material’.  The  concept  of  ‘material  information’  within  the  meaning  of  the  UCPD  is 
discussed in Section 3.4.1.  

For example: 

  Article  23  of  the  Air  Services  Regulation  requires  air  carriers,  their  agents 

and other ticket sellers, when offering flight tickets, to break down the final price by 
components (e.g. air fare, taxes, airport charges, and other charges and fees, such as 
those  related  to  security  and  fuel).  This  constitutes  material  information  within  the 
meaning of Article 7(5) of the UCPD.  

37  Directive  2004/39/EC  on  markets  in  financial  instruments  requires  investment  firms  to  provide  clients,  including  consumers,  with 
specific information on their services, the financial instruments and proposed investment strategies, costs and associated charges. This 
directive will be repealed by the revised Directive 2014/65/EU of 15 May 2015 on markets in financial instruments (Mifid 2). 

38  Directive 2007/64/EC on payment services  contains  more specific provisions  on pre-contractual information and on the  modalities for 

delivering this information. This directive will be repealed by a revised Directive on payment services, known as PSD2.    

39  Directive 2008/48/EC on credit agreements for consumers contains specific information requirements when advertising for a credit. 
40  Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property contains rules on the marketing of 
mortgage  credits  such  has  the  prohibition  tying  practices.  The  Directive  also  contains  specific  information  requirements  at  advertising 
and pre-contractual stages. 

41  Directive  2014/92/EU  on  the  comparability  of  fees  related  to  payment  accounts,  payment  account  switching  and  access  to  payment 

accounts with basic features. 

42  Regulation (EU) No 1286/2014 of 26 November 2014 on key information documents for packaged retail and insurance-based investment. 

The Regulation applies from 31 December 2016. 

43  Directive 2001/83/EC relating to medicinal products for human use contains additional requirements in terms of advertising and labelling 

of medicinal products.  

44  Directive  2002/22/EC  on  universal  service  and  users’  rights  relating  to  electronic  communications  networks  and  services  (Universal 
Service  Directive)  as  amended  by  Directive  2009/136/EC  requires  the  provision  of  contractual  information  on  the  minimum  service 
quality levels, the type of maintenance offered and any compensation and refund arrangements which apply if the service contracted does 
not meet quality levels. 

45  Regulation (EC) No 1008/2008 on common rules for the operation of air services requires the final price payable – which shall include all 
the foreseeable and unavoidable price elements available at the time of publication – to be indicated and broken down by components: air 
fare or air rate, taxes, airport charges, other charges and surcharges. 

46  Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding 
and  of  cancellation  or  long  delay  of  flights  contains  a  specific  obligation  to  inform  passengers  that  in  case  of  denied  boarding,  flight 
cancellation  or  flight  delay,  they  may  be  entitled  to  compensation  and  assistance  and  care;  Regulation  (EU)  No  1177/2010  of  the 
European  Parliament  and of  the  Council  of  24  November 2010  concerning  the  rights of passengers  when  travelling  by  sea  and  inland 
waterway and amending Regulation (EC) No 2006/2004; Regulation (EU) No 181/2011 of the European Parliament and of the Council 
of 16 February 2011 concerning the rights of passengers in bus and coach transport.  

17 

 
 
 
 
 
  
                                                            
Recital 15 provides that Member States can retain or add information requirements relating to 
contract law where this is permitted by minimum harmonisation clauses found in existing 
EU legal instruments. 

For example: 

  Member  States  can  introduce  additional  pre-contractual  requirements  for 

on-premises sales, which are subject to the minimum harmonisation clause in Article 
5(4) of the Consumer Rights Directive. 

1.4.4 

Interplay with the Consumer Rights Directive 

The  Consumer  Rights  Directive47  entered  into application  on  13  June  2014.  It  applies  to  all 
business-to-consumer contracts including off-premises, distance and on-premises contracts. It 
also fully harmonises pre-contractual information requirements for distance and off-premises 
contracts,  while  allowing  Member  States  to  adopt  or  maintain  additional  pre-contractual 
information requirements for on-premises contracts (Article 5(4)). 

This minimum harmonisation clause has consequences for commercial practices falling under 
the fully harmonised UCPD. 

Indeed,  under  Article  5(4)  of  the  Consumer  Rights  Directive,  Member  States  may  adopt  or 
retain  pre-contractual  information  requirements  that  go  beyond  the  UCPD  if  these  national 
requirements only apply to on-premises sales and only relate to pre-contractual information 
requirements, as opposed to advertising and marketing. 

For example: 

  A national requirement for traders in brick-and-mortar shops to mention the 

previous price next to the promotional one in price promotions would go beyond the 
remit  of  the  UCPD.  However,  under  Article  5(4)  of  the  Consumer  Rights  Directive, 
this could be considered a permissible information requirement, as long as it applies 
merely to on-premises sales and at the pre-contractual stage. 

Both directives also complement each other. 

For example: 

 

Inertia  selling:  Point  21  of  Annex  I  to  the  UCPD  prohibits  the  practice  of 
including in marketing material an invoice or similar document which falsely creates 
the  impression  that  the  consumer  has  already  ordered  the  marketed  product.  The 
Consumer  Rights  Directive  complements  the  UCPD  on  the  consequences  of  such 
practice.  Its Article 27 clarifies that, in the case of inertia selling, the ‘consumer shall 
be exempted from the obligation to provide any consideration’ and in such cases ‘the 

47  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, OJ L 304, 22.11.2011, p. 

64.  

18 

 
 
 
 
 
 
 
 
                                                            
absence of response from the consumer (…) shall not constitute consent’. 

For  ‘invitations  to  purchase’,  the  Consumer  Rights  Directive  provides  more  detailed  pre-
contractual information requirements than the information requirements in Article 7(4) of 
the UCPD.  

An  invitation  to  purchase  under  the  UCPD  refers  to  both  the  information  provided  at  the 
marketing stage (advertising) and before the contract is signed. In the latter case, there is an 
overlap between the information requirements under Article 7(4) of the UCPD and the 
pre-contractual  information  requirements  under  the  Consumer  Rights  Directive.  The 
difference  between  pre-contractual  information  and  an  invitation  to  purchase  is  further 
explained in Section 2.7.  

Given the more exhaustive character of the information requirements in the Consumer Rights 
Directive, complying, already at the stage of invitation to purchase, with the requirements laid 
down by the CRD for the pre-contractual stage should normally also ensure compliance with 
Article  7(4)  UCPD,  as  far  as  the  content  of  the  information  is  concerned.48  The  UCPD  will 
still  be  applicable  when  assessing  any  misleading  or  aggressive  commercial  practices  by  a 
trader on the form and presentation of this information to the consumer. 

1.4.5 

Interplay with the Unfair Contract Terms Directive 

The  Unfair  Contract  Terms  Directive49  applies  to  all  business-to-consumer  contracts  and 
concerns contractual terms which have not been individually negotiated in advance (e.g. pre-
formulated standard clauses). In contrast to the UCPD, breaches of the Unfair Contract Terms 
Directive  have  contractual  consequences:  under  Article  6(1)  of  that  directive,  unfair  terms 
used in a contract with a consumer must ‘not be binding on the consumer’. 

The  Court  has  clarified  certain  elements  of  the  relationship  between  these  Directives  in  the 
Pereničová  and  Perenič  case,50  which  concerned  a  credit  agreement  where  the  annual 
percentage rate of charge indicated was lower than the actual rate.  

The  Court  concluded  that  such  erroneous  information  provided  in  the  contract  terms  is 
‘misleading’  within  the  meaning  of  the  Unfair  Commercial  Practices  Directive  if  it 
causes, or is likely to cause, the average consumer to take a transactional decision that 
he would not have taken otherwise.  

Finding  that  such  a  commercial  practice  is  unfair  is  one  factor  that  can  be  cited  when 
assessing the unfairness of contractual terms under the Unfair Contract Terms Directive. Such 

48  See also section 4.1.1.1 of the DG Justice and Consumers CRD Guidance (version June 2014).  
49  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 095, 21.04.1993. 
50  Case C-453/10 Pereničová and Perenič, 15 March 2012. 

19 

 
 
 
                                                            
a finding, however, has no direct effect on whether the contract is valid under Article 6(1) of 
that Directive.51  

In the UK, in OFT v Ashbourne Management Services it was found that it was contrary to the 
UCPD  to  include  an  unfair  term  in  a  contract,  and  also  unfair  to  seek  to  enforce  it  by 
demanding sums payable under the term.52 

Only  a  few  Member  States’  consumer  protection  authorities  have  similar  powers  against 
unfair  commercial  practices  and  unfair  contract  terms,  in  order  to  prohibit  the  use  of  non-
negotiated standard contract terms which they consider to be unfair without having to take the 
trader to court.53 

1.4.6 

Interplay with the Misleading and Comparative Advertising Directive 

The  Misleading  and  Comparative  Advertising  Directive  (MCAD)54  covers  business-to-
business (B2B) relations.  

However,  its  rules  on  comparative  advertising  continue  to  provide  a  general  test,  based  on 
fully  harmonised  criteria,  for  assessing  whether  comparative  advertising  is  lawful  also  in 
business-to-consumer (B2C) transactions.55  

Article  6(2)(a)  of  the  UCPD  qualifies  as  misleading  a  practice  which,  including  through 
comparative  advertising,  creates  confusion  with  any  products,  trademarks,  trade  names  or 
other  distinguishing  marks  of  a  competitor.  At  the  same  time,  under  Article  4(a)  of  the 
MCAD, comparative advertising is not permitted if it is misleading under Articles 6 and 7 of 
the UCPD. 

Hence, these two Directives cross-reference each other. Being relevant for both B2C and B2B 
transactions, the conditions for assessing the lawfulness of  comparative advertising laid down 
by  Article  4  of  the  MCAD  are  rather  broad  and  include  also  some  aspects  of  unfair 
competition  (e.g.  denigration  of  trade  marks).  Therefore,  the  MCAD  will  either  provide 
conditions  for  such  assessment  under  the  UCPD  for  B2C  transactions  or  impose  additional 
requirements which are relevant for traders, mainly competitors, in B2B transactions. 

For  those  Member  States  which  have  extended  all  (Austria  and  Sweden)  or  part  (Denmark, 
France,  Italy)  of  the  provisions  contained  in  the  UCPD  to  B2B  transactions,  the  UCPD 
provisions  as  transposed  into  national  laws  will  in  practice  replace  the  relevant  MCAD 
provisions  in  B2B  relations.    It  should  be  noted  that  some  countries  (Belgium)  have  also 
adopted specific rules for B2B. 

51  Case C-453/10 Pereničová and Perenič, paragraph 46 
52  Office of Fair Trading v Ashbourne Management Services Ltd [2011] EWHC 1237 (Ch). 
53  See examples in Italy, Poland, Belgium and the Netherlands. 
54  Directive  2006/114/EC  of  the  European  Parliament  and  of  the  Council  of  12  December  2006  concerning  misleading  and  comparative 

advertising, OJ L 376, 27.12.2006, p. 21. 

55  The  MCAD  thus  covers  misleading  advertising  and  unlawful  comparative  advertising  as  two  independent  infringements  -  see  also  the 

Court, Case C-52/13, Posteshop SpA, 13 March 2014. 

20 

 
                                                            
1.4.7 

Interplay with the Services Directive 

Contrary  to  sector-specific  legislation,  the  Services  Directive56  has  a  broad  scope  of 
application. It applies to services in general as defined in the Treaty on the Functioning of the 
European Union, with certain exceptions. It can therefore not be considered as lex specialis to 
the Unfair Commercial Practices Directive within the meaning of Article 3(4). 

Accordingly,  the  information  requirements  in  Article  22  of  the  Services  Directive  apply  in 
addition  to  the  information  required  for  invitations  to  purchase  under  Article  7(4)  of  the 
UCPD. 

1.4.8 

Interplay with the e-Commerce Directive 

The  e-Commerce  Directive57  applies  to  information  society  services,  which  can  include  the 
services  provided  by  operators  of  websites  and  online  platforms  which  allow  consumers  to 
buy a good or service.  

Article  5  of  the  e-Commerce  Directive  lays  down  general  information  requirements  for 
service  providers,  while  Article  6  lays  down  information  to  be  provided  in  commercial 
communications. The lists of items set out in these two articles are minimum lists.  

Article  6  in  particular  requires  Member  States  to  ensure  that  traders  clearly  identify 
promotional  offers,  such  as  discounts,  premiums  and  gifts,  where  permitted  in  the  Member 
States  where  the  service  provider  is  established,  and  the  conditions  to  qualify  for  such 
promotional offers.  

The  interplay  between  the  UCPD  and  the  e-Commerce  Directive  is  further  addressed,  in 
particular, in section 5.2.2 on ‘The applicability of the UCPD to online platforms’.  

Interplay with the Audiovisual Media Services Directive 

1.4.9 
The  Audiovisual  Media  Services  Directive58  applies  to  linear  and  non-linear  audiovisual 
media  services  (i.e.  TV  broadcasting  and  on-demand  media  services),  which  can  include 
audiovisual  commercial  communications  which  directly  or  indirectly  promote  goods  or 
services (e.g. television advertising, sponsorship, teleshopping or product placement).  

Article  5  of  the  Audiovisual  Media  Services  Directive  lays  down  general  information 
requirements  for  service  providers,  while  Article  9  lays  down  requirements  with  which  all 
audiovisual  commercial  communications  must  comply.  Articles  10  and  11  respectively  lay 
down the conditions which sponsorship and product placement in audiovisual media services 
must  respect.  The  Audiovisual  Media  Services  Directive  also  provides  for  other  stricter 
criteria which apply only to television advertising and teleshopping (Chapter VII on television 
advertising and teleshopping). 

56  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 

27/12/2006. 

57  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, OJ L 178, 17/08/2000.  

58  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. 

21 

 
 
                                                            
The  UCPD  applies  to  unfair  commercial  practices  occurring  in  audiovisual  media  services, 
such  as  misleading  and  aggressive  practices,  to  the  extent  that  they  are  not  covered  by  the 
provisions mentioned above. 

1.4.10 

Interplay with the Data Protection Directive and the e-Privacy Directive 

The protection of personal data is a fundamental right under Article 8 of the EU Charter of 
Fundamental Rights. Article 8(2) of the Charter contains key data protection principles (fair 
processing,  consent  or  legitimate  aim  prescribed  by  law,  right  to  access  and  rectification). 
Article  8(3)  of  the  Charter  requires that  compliance  with  data  protection  rules  be  subject to 
control by an independent authority59. 

The  Data  Protection  Directive60  regulates  the  protection  of  personal  data  and  the  free 
movement of such data. Data protection rules are enforced by national supervisory authorities 
and national courts. 

The  e-Privacy  Directive61  complements  the  Data  Protection  Directive  regarding  the 
processing  of  personal  data  in  the  electronic  communication  sector,  as  it  facilitates  the  free 
movement  of  such  data  through  electronic  communication  services.  In  particular,  the  e-
Privacy Directive requires the user’s consent when ‘cookies’ or other forms of accessing and 
storing information on an individual’s device (e.g. tablet or smartphone) are used.62   

The Data Protection Directive applies to the processing of ‘personal data’.  

Personal  data  means  any  information  relating  to  an  identified  or  identifiable  natural  person 
(‘data  subject’).  An  identifiable  person  is  someone  who  can  be  identified,  directly  or 
indirectly,  in  particular  by  reference  to  an  identification  number  or  to  one  or  more  factors 
specific to his or her physical, physiological, mental, economic, cultural or social identity. A 
person  or  organisation  who  determines  the  purposes  for  processing  personal  data  is  a  data 
controller (Article 2(a)). The data controller must comply with the legal obligations in the data 
protection rules. 

Processing, which includes collecting and storing personal data, must be fair and lawful. One 
aspect of fair processing is that the data subject is given relevant information, including: 

  the identity of the data controller and of his representative, if any;  

  the purposes of that processing;   

  any further information, such as: 

59  The right to the protection of personal data established in Article 8 may be limited in accordance with the law and for the respect of the 
principles  of  a  democratic  society:  subject  to  the  principle  of  proportionality,  limitations  may  be  made  only  if  they  are  necessary  and 
genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others (Article 52 
(2) of the Charter). 

60  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the 
processing  of  personal  data  and  on  the  free  movement  of  such  data,  OJ  L  281,  23.11.1995  -  As  of  2018,  Directive  95/46/EC  will  be 
replaced by the General Data Protection Regulation adopted in 2016. 

61  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the 
protection  of  privacy  in  the  electronic  communications  sector  (Directive  on  privacy  and  electronic  communications)  as  amended  by 
Directive 2006/24/EC and Directive 2009/136/EC.  

62  Article 5(3) of the e-Privacy Directive.  

22 

 
                                                            
1. the categories of personal data being processed;  

2. the recipients of categories of recipients; 

3. the existence of the right of access and the right to rectify the data concerning him; 

4. whether the personal data will be provided to third parties, and; 

5. information about whether replies to the questions are obligatory or voluntary and 
possible consequences of failure to reply, information on the existence of the right of 
access to and of the right to rectify own personal data; 

in so far as such further information is necessary, having regard to the specific circumstances 
in which the data are collected, to guarantee fair processing in respect of the data subject.63 

Fair  and  lawful  processing  of  personal  data  requires  that  data  protection  principles  are 
complied with and that at least one of the six grounds for legitimate processing applies to any 
processing activity. Consent by the individual is one of these criteria. Other criteria will apply 
where necessary, depending on the circumstances and purposes of the processing.  

Data protection principles require that personal data is:  

  collected  for  specific  and  legitimate  purposes  and  not  further  processed  in  a  way 

incompatible with those purposes;  

  adequate, relevant and not excessive for those purposes; 

  accurate and, if inaccurate, erased or rectified;  

  not stored for longer than necessary.   

Data-driven  business  structures  are  becoming  predominant  in  the  online  world.  In 
particular, online platforms analyse, process and sell data related to consumer preferences and 
other  user-generated  content.  This,  together  with  advertising,  often  constitutes  their  main 
source of revenues. 

The collection and processing of personal data in these types of situations must comply with 
the legal requirements under the Data Protection Directive mentioned above. Individuals must 
be able to exercise their rights in respect of such processing. These include:  

  the right to access their personal data;  

  the right to object to processing (e.g. direct marketing);  

  the right to have their data erased.   

For example: 

  An app developer  that  decides  on the collection and processing of  personal 
data is the ‘data controller’ under the Data Protection Directive. Therefore, 
the app developer must inform consumers at least about what type of personal data is 

63  See Articles 10, 11 and 14 of the Data Protection Directive 95/46/EC.  

23 

 
                                                            
being  processed,  by  whom  and  for  what  purposes.  An  app  developer  processing 
personal data for further purposes that are incompatible with the purposes notified to 
the  consumer  will  be  in  breach  of  the  Data  Protection  Directive.  An  app  developer 
must also comply with his obligations under the e-Privacy Directive and ensure that 
the  consumer’s  prior  consent  has  been  obtained  if  ‘cookies’  or  some  other  forms  of 
accessing  and  storing  information  on  the  individual’s  device  (e.g.  smartphone)  are 
being used.   

As  of  25  May  2018,  Directive  95/46/EC  will  be  replaced  by  the  General  Data  Protection 
Regulation  adopted  in  2016.64  The  new  rules  strengthen  the  existing  rights  and  empower 
individuals with more control over their personal data.  

Most notably, these include: 

  establishment of a single, pan-European law for data protection: data subjects, public 
authorities  and  companies  will  have  to  simply  deal  with  one  EU  Regulation,  as 
opposed to 28 national laws;  

  easier access to own personal data: individuals will have more information, on top of 
the  existing  requirements,  as  to  how  their  personal  data  are  processed,  and  this 
information will have to be made available in a clear and understandable way; 

  the  right  to  know,  for  instance,  when  personal  data  have  been  hacked:  for  example, 
companies  and  organisations  must  notify  the  national  data  protection  supervisory 
authority of serious personal data breaches as soon as possible, so that users can take 
appropriate measures. 

A trader’s violation of the Data Protection Directive or of the ePrivacy Directive will not, in 
itself, always mean that the practice is also in breach of the UCPD.  

However,  such  data  protection  violations  should  be  considered  when  assessing  the  overall 
unfairness  of  commercial  practices  under  the  UCPD,  particularly  in  the  situation  where  the 
trader  processes  consumer  data  in  violation  of  data  protection  requirements,  i.e.  for  direct 
marketing purposes or any other commercial purposes like profiling, personal pricing or big 
data applications. 

From a UCPD perspective, the first issue to be considered concerns the transparency of the 
commercial practice.  

Under Articles 6 and 7 of the UCPD, traders should not mislead consumers on aspects that are 
likely to have an impact on their transactional decisions. More specifically, Article 7(2) and 
No 22 of Annex I prevent traders from hiding the commercial intent behind the commercial 
practice.  

64  Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the  protection  of  natural persons  with 
regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, 
p. 1. 

24 

 
 
 
                                                            
The  data  protection  information  requirement  of  consumers  about  the  processing  of  personal 
data,  not  limited  only  in  relation  to  commercial  communication,  may  be  considered  as 
material (Article 7(5)). 

Personal  data,  consumer  preferences  and  other  user  generated  content,  have  a  "de  facto" 
economic value and are being sold to third parties.  

Consequently, under Article 7(2) and No 22 of Annex I UCPD if the trader does not inform a 
consumer that the data he is required to provide to the trader in order to access the service will 
be  used  for  commercial  purposes,  this  could  be  considered  a  misleading  omission  of 
material information.  

Depending  on  the  circumstances,  this  could  also  be  considered  a  violation  of  the  EU  data 
protection requirements to provide the required information to the individual concerned as to 
the purposes of the processing of the personal data. 

1.4.11 

Interplay with Articles 101-102 TFEU (competition rules) 

Regulation 1/200365 provides the legal framework for implementing the competition rules laid 
down in Articles 101 and 102 TFEU.   

Article  101(1)  TFEU  prohibits  in  certain  circumstances  agreements  between  undertakings, 
decisions by associations of undertakings and concerted practices, such as fixing purchase or 
selling prices or other trading conditions, which have as their object or effect the prevention, 
restriction  or  distortion  of  competition  in  the  EU.  Its  essential  feature  is  that  any  collusive 
behaviour by two or more undertakings having anticompetitive object or effect is prohibited 
and automatically void.   

Article 102 TFEU prohibits, in certain circumstances, the abuse of a dominant position by one 
or  more  undertakings.  Its  essential  feature  is  to  prohibit  abusive  conduct  even  by  a  single 
undertaking being dominant. Such an abuse may, for example, consist in applying dissimilar 
conditions  to  equivalent  transactions  with  other  trading  parties,  thereby  placing  them  at  a 
competitive disadvantage, or directly or indirectly imposing unfair purchase or selling prices.  

Although these practices are, under certain circumstances, prohibited under competition rules, 
they are not automatically considered as unfair under the UCPD. The breach of competition 
rules  should,  however,  be  taken  into  account  when  assessing  their  unfairness  under  the 
UCPD. In such situations, the general clause of Article 5(2) UCPD is relevant. 

1.4.12 

Interplay with the EU Charter of fundamental rights 

According to its Article 51(1), the EU Charter of fundamental rights applies to the Member 
States when they implement Union law, thus also when they implement the provisions of the 
UCPD.  The  Charter  contains  provisions,  among  others,  on  the  protection  of  personal  data 

65  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 
and 82 of the Treaty, OJ L 1, 04/01/2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become 
Articles 101 and 102, respectively, of the TFEU. The two sets of provisions are, in substance, identical.  

25 

 
                                                            
(Article  8)66,  the  rights  of  the  child  (Article  24)67,  consumer  protection  (Article  38)  and  the 
right to an effective remedy and a fair trial (Article 47).  

The  Court  has  stressed  the  significance  of  Article  47  of  the  Charter  on  access  to  justice  in 
relation to remedies available to consumers in connection with consumer rights granted under 
EU directives. The principle of effectiveness, as referred to by the Court, means that national 
rules  of  procedure  may  not  make  it  excessively  difficult  or  impossible  in  practice  for 
consumers to exercise rights conferred by EU law68. 

1.4.13 

Interplay with Articles 34-36 TFEU 

A national measure in an area which has been the subject of exhaustive harmonisation at EU 
level must be assessed in the light of the provisions of that harmonising measure and not those 
of  the  Treaty  of  the  Functioning  of  the  European  Union  (TFEU).69  Thus,  when  a  national 
measure  falls  within  the  scope  of  the  UCPD  (discussed  in  Sections  1.1  and  1.2  above),  it 
should be assessed against the UCPD and not against the TFEU.  

National  measures  that  neither  fall  within  the  scope  of  the  UCPD  nor  under  any  other 
harmonising instrument of secondary EU law are to be assessed under Articles 34-36 TFEU. 
The  prohibition  of  measures  having  an  effect  equivalent  to  quantitative  restrictions  as  laid 
down  in  Article  34  TFEU  covers  all  trading  rules  enacted  by  Member  States  which  are 
capable of hindering, directly or indirectly, actually or potentially, intra-Union trade.70  

The  issue  of  when  a  national  rule  is  capable  of  hindering  intra-Union-trade  has  been  dealt 
with  extensively  by  the  Court.  Notably,  in  Keck71  the  Court  held  that  national  provisions 
restricting  or  prohibiting  certain  selling  arrangements  are  not  such  as  to  hinder  directly  or 
indirectly,  actually  or  potentially  trade  between  Member  States,  so  long  as,  first,  those 
provisions apply to all relevant traders operating within the national territory and, secondly, 
they  affect  in  the  same  manner,  in  law  and  in  fact,  the  marketing  of  domestic  products  and 
those  from  other  Member  States.72  The  Court  includes  in  the  list  of  selling  arrangements, 
measures relating to the conditions and methods of marketing,73 measures which relate to the 
time  of  the  sale  of  goods,74  measures  which  relate  to  the  place  of  the  sale  of  goods  or 
restrictions  regarding  by  whom  goods  may  be  sold75  and  measures  which  relate  to  price 
controls.76 

66  See below under 1.4.9. 
67  See below under 2.6. 
68  C-34/13 Kušinová, paragraphs 63 – 65 and C-169/14 Sanchez Morcillo, paragraph 35.  
69  Case C 322/01 Deutscher Apothekerverband, para. 64; Case C-205/07, Gysbrechts para. 33; Case C-37/92 Vanacker and Lesage, para 9; 

Case C-324/99 DaimlerChrysler, para. 32 and Case C-322/01 Deutscher Apothekerverband, para. 64. 

70  See Case 8/74 Dassonville, para. 5. 
71  Cases C267/91 and 268/91 Keck. 
72  In Keck, the Court clarified its previous jurisprudence, in particular Case 8/74 Dassonville.  
73  See Case C-412/93 Leclerc-Siplec, para 22, and Case C-6/98 ARD, para. 46. 
74  See  Joined  Cases  C-401/92  and  C-402/92  Tankstation  ’t  Heukske  and  Boermans,  para  14;  Joined  Cases  C-69/93  and  C-258/93  Punto 
Casa and PPV and Joined Cases C-418/93 to C-421/93, C-460/93 to C-462/93, C-464/93, C-9/94 to C-11/94, C-14/94, C-15/94, C-23/94, 
C-24/94 and C-332/94 Semeraro Casa Uno and Others, paras. 9 –11, 14, 15, 23 and 24. 

75  See Case C-391/92 Commission v Greece, para. 15; Joined Cases C-69/93 and C-258/93 Punto Casa and PPV. 
76  See Case C-63/94 Belgacom. 

26 

 
                                                            
Some of the examples of selling arrangements mentioned in  the jurisprudence  of the Court, 
notably national provisions that regulate the conditions and methods of marketing, would fall 
within  the  scope  of  the  UCPD  if  they  qualify  as  business-to-consumer  commercial 
practices intended to protect the economic interest of consumers. 

Many  commercial  practices  that  do  not  fall  within  the  scope  of  the  UCPD  or  other 
secondary EU law would appear to qualify as selling arrangements under Keck. Such selling 
arrangements fall within the scope of Article 34 TFEU if they, in law or in fact, introduce 
discrimination on the basis of the origin of products. Discrimination in law occurs when the 
measures are manifestly discriminatory, whilst discrimination in fact is more complex. Such 
measures would need to be assessed on a case-by-case basis.    

If  a  measure  or  national  practice  violates  Article  34  TFEU,  it  may  in  principle  be  justified 
under  Article  36  TFEU  or  on  the  basis  of  one  of  the  overriding  requirements  in  the  public 
interest recognised by the Court of Justice. It is for national authorities to demonstrate that the 
restriction on the free movement of goods is justified on one of these grounds.77 Furthermore, 
the Member State must demonstrate that its legislation is necessary to effectively protect the 
public interests invoked78.  

In order to be permissible, such provisions must be proportionate to the objective pursued and 
the objective must not be capable of being achieved by measures which are less restrictive of 
intra-EU trade.79 More recently the Court held that "in determining whether the restriction at 
issue is proportionate, it is also important to ascertain whether the measures implemented in 
that context go beyond what is necessary to attain the legitimate objective being pursued. In 
other  words,  it  is  necessary  to  determine  whether  there  exist  alternative  measures  that  are 
also capable of attaining that objective while at the same time having a less restrictive effect 
on  intra-Community  trade".80  Moreover,  the  Court  held  that  "it  should  be  borne  in  mind  in 
that context that a restrictive measure may be regarded as complying with the requirements of 
European  Union  law  only  if  it  genuinely  reflects  a  concern  to  secure  the  attainment  of  the 
objective pursued in a consistent and systematic manner”.81     

1.5 

The relationship between the UCPD and self-regulation 

Article 2 (f) 

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

Article 10 

77  See Case C-192/01 Commission v Denmark. 
78  See, to that effect, Case C-333/08 Commission v France, para. 87. 
79  See, inter alia, Case C-313/94 Graffione, para. 17 and Case C-3/99 Ruwet, para. 50. 
80  Case C-161/09 Kakavetsos-Fragkopoulos, para. 39. 
81  Case C-161/09 Kakavetsos-Fragkopoulos, para. 42. 

27 

 
  
 
 
                                                            
Codes of conduct 

This Directive does not exclude the control, which Member States may encourage, of unfair 
commercial  practices  by  code  owners  and  recourse  to  such  bodies  by  the  persons  or 
organisations referred to in Article 11 if proceedings before such bodies are in addition to the 
court  or  administrative  proceedings  referred  to  in  that  Article.  Recourse  to  such  control 
bodies  shall  never  be  deemed  the  equivalent  of  foregoing  a  means  of  judicial  or 
administrative recourse as provided for in Article 11. 

The UCPD recognises the importance of self-regulation mechanisms and clarifies the role that 
code  owners  and  self-regulatory  bodies  can  play  in  enforcement.  Member  States  may 
encourage code owners to check for unfair commercial practices, in addition to enforcing the 
UCPD.  

When the rules in self-regulatory codes are strict and rigorously applied by code owners, they 
may  indeed  reduce  the  need  for  administrative  or  judicial  enforcement  action.  Moreover, 
when the standards are high and industry operators largely comply with them, such rules may 
be  a  useful  reference  point  for  national  authorities  and  courts  in  assessing  whether  a 
commercial practice is unfair.  

The UCPD contains several provisions which prevent traders from unduly exploiting the 
trust  which  consumers  may  have  in  self-regulatory  codes.  This  is  discussed  in  Section 
3.3.3 on non-compliance with codes of conduct. 

To  improve  compliance  with  the  UCPD,  in  2012  the  European  Commission  launched  two 
multi-stakeholder  dialogue  processes  bringing  together  industry  representatives,  NGOs  and 
national authorities. The multi-stakeholder group on environmental claims82 and the multi-
stakeholder  group  on  comparison  tools83    provided  useful  input  further  discussed  in 
sections 5.1 on Environmental Claims and 5.2.6 on Comparison Tools.  

In addition, these groups drew up:  

  'Compliance  Criteria  on  Environmental  Claims':  multi-stakeholder  advice  to  help 

traders apply the UCPD as regards environmental claims,  

  a list of key principles for comparison tools.  

These documents, which are not legally binding as such, are available at:  

http://ec.europa.eu/consumers/consumer_rights/unfair-trade/unfair-practices. 

The stakeholders involved in these multi-stakeholder groups have committed to disseminate, 
promote and implement the criteria/principles and/or support their implementation.  

82  http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3327&NewSearch=1&NewSearch=1. 
83  http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3325&news=1. 

28 

 
 
 
 
 
                                                            
1.6 

Application of the UCPD to traders established in third countries  

The applicability of the UCPD to non-EU traders is regulated by Regulation No 864/2007 on 
the  law  applicable  to  non-contractual  obligations  (Rome  II).  This  Regulation  applies  "in 
situations involving a conflict of laws, to non-contractual obligations in civil and commercial 
matters". Rome II is applicable in civil or commercial disputes.  

Article 6(1) of the Rome II Regulation: 

The law applicable to a non-contractual obligation arising out of an act of unfair competition 
shall  be  the  law  of  the  country  where  competitive  relations  or  the  collective  interests  of 
consumers are, or are likely to be, affected. 

When the conditions of Article 6(1) of the Rome II Regulation are fulfilled, e.g. if misleading 
advertising  is  targeted  to  EU  consumers  and  this  harms  the  collective  interests  of  EU 
consumers, the UCPD will be applicable.  

2. 

2.1 

GENERAL CONCEPTS 

The notion of trader 

Article 2(b) 

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

This  definition  covers  not  only  traders  who  act  on  their  own  account  but  also  persons, 
including consumers, acting ‘in the name of’ or ‘on behalf of’ another trader.    

29 

 
  
 
 
  
 
 
 
For example: 

  A Latvian court held that a company that placed advertisements in the media 

on behalf of and in the interests of another company, which was the service provider, 
was considered as a trader in the meaning of the national provisions transposing the 
UCPD.84  

  National  consumer  protection  authorities  acting  through  the  European  Consumer 
Protection  Cooperation  Network  carried  out  a  joint  enforcement  action  on  online 
games  that  offer  in-app  purchases.  They  clarified  that,  although  liability  for  the 
content of an app primarily rests with the app developer, an app store provider could 
also  be  held  responsible  for  ensuring  that  games  on  their  platforms  do  not  contain 
direct exhortations to children.85 

Hence,  under  Article  2(b)  in  conjunction  with  relevant  national  laws  on  liability  and 
sanctions, a trader can be held jointly liable with another trader for infringements of the 
UCPD committed by the latter on his behalf. . 
There may be situations where individuals who appear to be consumers selling products to 
other consumers could in fact be either traders themselves or acting on behalf of traders 
(‘hidden B2C’ sales).  

Whether  a  seller  qualifies  as  a  "trader"  or  a  consumer  must  be  assessed  on  a  case-by-case 
basis. Different criteria could be relevant, such as:  

  whether  the  seller  has  a  profit-seeking  motive,  including  the  fact  that  he/she  might 
have  received  remuneration  or  other  compensation  for  acting  on  behalf  of  a  given 
trader;  

  the number, amount and frequency of transactions;  

  the seller’s sales turnover;  

  whether the seller purchases products in order to resell them.  

Persons  whose  main  activity  is  to  sell  products  online  on  a  very  frequent  basis,  purchasing 
products to resell them at a higher price, could for example fall within the definition of trader. 

Organisations  which  pursue  charitable  or  ethical  goals  may  qualify  as  traders  under  the 
UCPD  when they engage in  commercial activities (e.g. the sale of products meeting certain 
ethical standards) towards consumers. Whenever they act as traders, they should comply with 
the  UCPD  insofar  as  their  commercial  activities  are  concerned.  For  instance,  information 
about the origin of the product or its ethical aspects should not be misleading.  

The fact that an organisation is structured as ‘non-profit’ is immaterial to the assessment of 
whether it qualifies as a trader. 

84  Administratïvās rajona tiesas spriedums lietā Nr. A420632710, 8 March 2012. 
85  See section 5.2.4 on App Stores.  

30 

 
 
 
 
 
                                                            
The  same  applies  to  public  authorities,  which  may,  depending  on  the  circumstances  also 
qualify as a trader when carrying out commercial activities. 

For example: 

  A  municipality  marketing  discounted  ticket  prices  for  an  art  exhibition  it 

organises could fall under the definition of trader in the UCPD. 

In the BKK Mobil Oil case, the Court confirmed that a public law body charged with a task of 
public interest such as managing a statutory health insurance fund, can qualify as a ‘trader’ as: 

‘the EU legislature has conferred a particularly broad meaning on the term ‘trader’, 
which refers to ‘any natural or legal person’ which carries out a gainful activity and 
does not exclude from its scope either bodies pursuing task of public interest or those 
which are governed by public law’.86 

The Court also concluded that: 

‘[...]  BKK’s  members,  who  must  manifestly  be  regarded  as  consumers  within  the 
meaning  of  the  Unfair  Commercial  Practices  Directive,  could  be  deceived  by  the 
misleading information circulated by that body thus preventing them from making an 
informed choice […] and leading them to take a decision they would not have taken in 
the  absence  of  such  information,  as  envisaged  by  Article  6(1)  of  that  Directive.  In 
those  circumstances,  whether  the  body  at  issue  or  the  specific  task  it  pursues  are 
public or private is irrelevant’.87 

In particular, under Annex I of the UCPD (the ‘black list’) No 22, the following practice is 
prohibited: 

No 22 of Annex I 

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. 

For example: 

  A  hotel  website  hosting  positive  reviews  supposedly  from  consumers  which 

are actually written by the hotel owner. 

86  Case C-59/12, BKK Mobil Oil, 3 October 2013, paragraph 32. 
87  Case C-59/12, BKK Mobil Oil, 3 October 2013, paragraph 37.  

31 

 
 
 
  
 
 
 
 
 
 
                                                            
2.2 

The concept of commercial practice 

Article 2(d) 

business-to-consumer  commercial  practices  means  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; 

The Court held that the sole criterion in Article 2(d) of the UCPD is that the trader’s practice 
must  be  directly  connected  with  the  promotion,  sale  or  supply  of  a  product  or  service  to 
consumers.88  

A commercial practice can be ‘directly connected’ to the promotion of a product for example 
by  providing  ‘information  relating  to  the  availability  of  a  product  at  an  attractive  price 
during a certain period’.89 Based on the case-law currently available, it is difficult to define a 
limit  for  when  a  commercial  practice  would  no  longer  be  ‘directly  connected’  to  the 
promotion  of  a  product.  However,  as  an  example,  where  a  trader  sells  a  street  map  not 
containing any promotional messages, and the consumer subsequently uses that street map to 
find his way to a given shop, it would seem unreasonable to qualify the selling of that street 
map as a commercial practice ‘directly connected’ to the promotion of a product in that given 
shop.         

The  Court  stated  that  the  UCPD  covers  activities  of  a  professional  following  on  from  a 
commercial  transaction  relating  to  any  good  or  service  and  following  the  conclusion  of  a 
contract or during the performance of that contract.90  

On this basis, the Court concluded that: 

‘[…]  the  fact  that  the  action  of  the  professional  concerned  took  place  on  only  one 
occasion and affected only one single consumer is immaterial in this context.  

Neither  the  definitions  set  out  in  Articles 2(c)  and  (d),  3(1)  and  6(1)  of  the  Unfair 
Commercial  Practices  Directive  nor  the  latter,  considered  as  a  whole,  contain  any 
indication that the act or omission on the part of the professional must be recurrent or 
must concern more than one consumer.’   

‘[…] the communication, by a professional to a consumer, of erroneous information, 
such  as  that  at  issue  in  the  main  proceedings,  must  be  classified  as  a  ‘misleading 
commercial  practice’,  within  the  meaning  of  that  directive,  even  though  that 
information concerned only one single consumer.’ 91 

88  See, inter alia, Case C-388/13 UPC paragraph 35, with references.  
89  Case C-281/12 Trento Sviluppo, 19 December 2013, paragraph 35. .  
90  Case C-388/13 UPC, 16 April 2015, paragraph 36. 
91  Case C-388/13, UPC, 16 April 2015, paragraphs 41, 42 and 60. 

32 

 
  
 
 
                                                            
2.3 

The concept of ‘transactional decision’ 

Article 2(k) 

‘transactional  decision’  means  any  decision  taken  by  a  consumer  concerning  whether,  how 
and on what terms to purchase, make payment in whole or in part for, retain or dispose of a 
product  or  to  exercise  a  contractual  right  in  relation  to  the  product,  whether  the  consumer 
decides to act or to refrain from acting. 

The  UCPD’s  general  provisions  (Articles  5  to  9)  cover  unfair,  misleading  and  aggressive 
commercial  practices  which  are  capable  of  distorting  consumers’  economic  behaviour, 
thereby causing or being likely to cause them to take a transactional decision that  they 
would not have taken otherwise. 

The wording used in Article 2(k) suggests that the definition should be interpreted in a broad 
manner and that the concept of transactional decision should cover a wide range of decisions 
made by the consumer in relation to a product. 

The  Court  held  that  ‘transactional  decision’  covers  not  only  the  decision  whether  or  not  to 
purchase  a  product,  but  also  decisions  directly  related  to  that  decision,  in  particular  the 
decision to enter the shop: 

‘Since the commercial practice at issue in the main proceedings concerns information 
relating to the availability of a product at an attractive price during a certain period, 
it must be determined whether the acts preparatory to the purchase of a product, such 
as the consumer’s trip to the shop or the act of entering the shop, may be regarded as 
constituting transactional decisions for the purposes of the directive. 

[…] ‘any decision taken by a consumer concerning whether, how and on what terms 
to  purchase’  is  a  transactional  decision.  That  concept  therefore  covers  not  only  the 
decision whether or not to purchase a product, but also the decision directly related to 
that decision, in particular the decision to enter the shop. 

[…]  Article  2(k)  of  the  directive  must  be  interpreted  as  meaning  that  any  decision 
directly related to the decision whether or not to purchase a product is covered by the 
concept of ‘transactional decision’.92 

In  that  sense,  the  notion  of  transactional  decision  also  encompasses  pre-purchase  and 
post–purchase decisions. 

There  is  a  wide  spectrum  of  transactional  decisions  a  consumer  may  take  in  relation  to  a 
product or a service other than the decision whether to purchase. 

92  Case  C-281/12  Trento  Sviluppo  srl,  Centrale  Adriatica  Soc.  Coop.  Arl  v  Autorità  Garante  della  Concorrenza  e  del  Mercato,  19 

December 2013, paragraphs 35, 36 and 38.  

33 

 
  
 
 
 
 
                                                            
These transactional decisions may result in actions which have no legal consequences under 
national  contract  law  and  may  be  taken  at  any  time  between  the  moment  the  consumer  is 
initially exposed to the marketing and the end of a product’s life or the final use of a service. 

Many pre-purchase decisions could be considered transactional decisions. 

For example: 

  A decision to travel to a sales outlet or shop as a result of a commercial offer. 

  A decision to agree to a sales presentation by a trader. 

  A decision to click through a website as a result of a commercial offer. 

Many  post-purchase  decisions  made  after  having  purchased  a  product  or  subscribed  to  a 
service can qualify as transactional decisions. 

For example: 

  A decision to withdraw from or terminate a service contract. 

  A decision to switch to another service provider. 

For misleading practices committed by third parties, Article 14 of the e-Commerce Directive 
determines  under  which  conditions  certain  online  platforms  are  not  liable  for  such  third 
parties' illegal information stored on the platform, when acting as an intermediary providing 
'hosting' services within the meaning of that provision.  

From  a  UCPD  perspective,  what  is  decisive  is  whether  the  relevant  on-line  intermediary 
qualifies  as  a  trader  and  has  or  not  engaged  in  a  business-to-consumer  commercial  practice 
directly connected with the promotion, sale or supply of a product to consumers. It is only if 
that  on-line  intermediary  qualify  as  a  trader  and  engages  in  such  commercial  practices  and 
does so in a manner that is prohibited under the UCPD that it can be found in breach thereof. 
In this connection the intermediary cannot invoke the liability exemption of Article 14 of the 
e-Commerce  Directive  where  those  practices  concern  the  intermediary's  own  activities  and 
not the information stored, nor where the intermediary has knowledge of or control over such 
information.93   

Many  consumers  first  search  for  products  using  search  engines  or  comparison  tools  or  by 
studying online user reviews and subsequently move to the websites of the traders providing 
the best offers to make the actual purchase.     

93  See e.g. Joined Cases C-236/08 to C-238/08, Louis Vuitton, para. 113. 

34 

 
 
 
 
 
 
 
 
 
 
                                                            
For example: 

  Failure  by  a  trader  providing  an  online  comparison  tool  to  disclose  paid 

placement  adequately  to  consumers  could  be  an  unfair  commercial  practice, 
independently  of  whether  the  products  compared  by  the  consumer  through  the 
comparison  tool  are  directly  offered  for  sale  by  the  comparison  tool  provider  or  by 
third  party  sellers.  In  this  case,  the  non-transparent  commercial  practice  by  the 
comparison tool provider could lead the consumer to take a transactional decision he 
would not have taken otherwise.  

In  addition,  an  unfair  commercial  practice  directed  at  one  consumer  could  lead  to  a 
transactional  decision  by  another  consumer,  which  the  latter  would  not  have  taken 
otherwise. 

For example: 

  Commercial  practices by  a trader offering online user reviews in  which the 

trader screens negative reviews could be a misleading action or omission even though 
the relevant transactional decision relates to a decision by a different consumer than 
the one pressured into removing or not posting a negative review. In this situation, the 
trader’s creation of a false or misleading overall impression about the nature of the 
review site, or how it operates, could cause the average consumer reading the online 
reviews to take  a decision to  contact a listed trader (and subsequently contract with 
him)  which  he  would  not  have  taken,  had  he  known  that  negative  reviews  had  been 
withheld.   

Commercial practices related to search engines, comparison tools and user reviews are further 
discussed in Chapter 5.2 ‘Online sector’.    

2.4 

To ‘materially distort the economic behaviour of consumers’ 

The  UCPD’s  general  provisions  (Articles  5  to  9)  cover  unfair,  misleading  and  aggressive 
commercial  practices  which  are  capable  of  distorting  consumers’  economic  behaviour. 
These provisions use slightly different wording to express these requirements. 

Under Article 5(2) UCPD, a commercial practice is unfair if it is contrary to the requirements 
of  professional  diligence  and  ‘materially  distorts  or  is  likely  to  materially  distort’  the 
economic  behaviour  of  the  average  consumer.  However,  Articles  6,  7  and  8  prohibit  a 
misleading  or  aggressive  commercial  practice  if  it  causes  or  is  likely  to  cause  the  average 
consumer to ‘take a transactional decision that he would not have taken otherwise’.  

The  requirement  that  a  commercial  practice  must  be  capable  of  distorting  the  consumer’s 
economic behaviour in order to be unfair is worded differently in Article 5(2) than in Articles 
6,  7  and  8.  At  first  sight,  this  apparent  contradiction  could  pose  problems  of  interpretation. 
However, Article 5(2) should be read in conjunction with Article 2(e), which states: 

35 

 
 
  
 
 
 
 
Article 2(e) 

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

Consequently,  on  the  basis  of  Article  5(2),  what  determines  whether  a  commercial  practice 
‘materially distorts  or  is  likely to materially  distort’ the  consumer’s  economic  behaviour  is 
whether  the  commercial  practice  causes  or  is  likely  to  cause  the  consumer  to  ‘take  a 
transactional decision that he would not have taken otherwise’.  

This is the same assessment that is to be made on the basis of Articles 6, 7 and 8. It follows 
that although the wording of Article 5(2) is different from the wording of the latter Articles, 
the requirement in relation to the material distortion of the consumer’s behaviour is the same.           

The broad concept of transactional decision developed by the Court (see section 2.3) allows 
for the UCPD to apply to a variety of cases where a trader’s unfair behaviour does not cause 
the consumer to enter into a transaction or a service contract.  

A commercial practice may be considered unfair not only if it is likely to cause the average 
consumer  to  purchase  or  not  to  purchase  a  product,  but  also  if  it  is  likely  to  cause  the 
consumer to, for example:  

  enter a shop;  

  spend more time on the internet engaged in a booking process;  

  decide not to switch to another service provider or product. 

The  UCPD  does  not  limit  this  material  distortion  test  to  assessing  whether  the  consumer’s 
economic behaviour (i.e. its transactional decision) has actually been distorted. It also requires 
an assessment as to whether a commercial practice is ‘likely’ (i.e. capable) to have such an 
impact  on  the  average  consumer.  National  enforcement  authorities  should  therefore 
investigate the facts and circumstances of the individual case (i.e. in concreto), but assess also 
the  ‘likelihood’  of  the  impact  of  that  practice  on  the  transactional  decision  of  the  average 
consumer (i.e. in abstracto). 

36 

 
  
 
 
 
For example: 

  A  commercial  announcement  claimed  that  a  new  model  of  a  car  was  ‘the 

safest car in the world’. In deciding whether the claim had affected any consumer in 
regard to making a well-founded transactional decision, a Swedish Court94 found that 
to qualify as a transactional decision, it was sufficient that the marketing was likely to 
raise an interest among the average consumer and trigger the consumer’s decision to 
take any further action (e.g. visit a store or website to obtain additional information 
on the product). 

2.5 

'Average consumer’ 

Recital 18 

It  is  appropriate  to  protect  all  consumers  from  unfair  commercial  practices;  however  the 
Court  of  Justice  has  found  it  necessary  in  adjudicating  on  advertising  cases  since  the 
enactment of Directive 84/450/EEC to examine the effect on a notional, typical consumer. In 
line  with  the  principle  of  proportionality,  and  to  permit  the  effective  application  of  the 
protections contained in it, this Directive takes as a benchmark the average consumer, who 
is reasonably well informed and reasonably observant and circumspect, taking into account 
social,  cultural  and  linguistic  factors,  as  interpreted  by  the  Court  of  Justice,  but  also 
contains provisions aimed at preventing the exploitation of consumers whose characteristics 
make  them  particularly  vulnerable  to  unfair  commercial  practices.  Where  a  commercial 
practice  is  specifically  aimed  at  a  particular  group  of  consumers,  such  as  children,  it  is 
desirable that the impact of the commercial practice be assessed from the perspective of the 
average member of that group… The average consumer test is not a statistical test. National 
courts and authorities will have to exercise their own faculty of judgment, having regard to 
the  case-law  of  the  Court  of  Justice,  to  determine  the  typical  reaction  of  the  average 
consumer in a given case. 

As indicated in Recital 18 and further specified in Articles 5 to 9, the UCPD’s benchmark 
for assessing the impact of a commercial practice is the notion of the ‘average consumer’, 
as previously developed by the Court: 

‘…in  order  to  determine  whether  a  particular  description,  trade  mark  or  promotional 
description  or  statement  is  misleading,  it  is  necessary  to  take  into  account  the  presumed 
expectations  of  an  average  consumer  who  is  reasonably  well  informed  and  reasonably 
observant and circumspect.’95 

This concept was indeed developed by the Court of Justice prior to the UCPD. It was codified 
then  by  the  UCPD  to  give  national  authorities  and  courts  common  criteria  to  enhance  legal 
certainty and reduce the possibility of divergent assessments.    

94  MD 2010:8, Marknadsdomstolen, Toyota Sweden AB v Volvo Personbilar Sverige Aktiebolag, 12 March 2010. 
95  Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, para 31. 

37 

 
 
 
  
 
 
 
                                                            
In the case-law of the Court, the average consumer is a reasonably critical person, conscious 
and circumspect in his or her market behaviour. 

For example: 

  The  ‘reasonably  circumspect  consumer’  will  not  believe  that  the  size  of  a 

promotional  marking  on  a  package  corresponds  to  the  promotional  increase  in  the 
size  of  that  product.96  Usually,  the  average  consumer  will  not  attribute  to  goods 
bearing  the  marking  ‘dermatologically  tested’  any  healing  effects  which  such  goods 
do not possess.97  

The average consumer under the UCPD is in any event not somebody who needs only a low 
level of protection because he/she is always in a position to acquire available information and 
act  wisely  on  it.  On  the  contrary,  as  underlined  in  Recital  18,  the  test  is  based  on  the 
principle  of  proportionality.  The  UCPD  adopted  this  notion  to  strike  the  right  balance 
between  the  need  to  protect  consumers  and  the  promotion  of  free  trade  in  an  openly 
competitive market. 

Therefore,  the  average  consumer  concept  under  the  UCPD  should  always  be  interpreted 
having  in  mind  Article  114  of  the  Treaty,  which  provides  for  a  high  level  of  consumer 
protection.  

At  the  same  time,  the  UCPD  is  based  on  the  idea  that,  for  instance,  a  national  measure 
prohibiting  claims  that  might  deceive  only  a  very  credulous,  naive  or  cursory  consumer 
(e.g. ‘puffery’98) would be disproportionate and create an unjustified barrier to trade.99 

As explicitly mentioned by Recital 18, the average consumer test is not a statistical test. This 
means  that  national  authorities  and  courts  should  be  able  to  determine  whether  a 
practice  is  liable  to  mislead  the  average  consumer  exercising  their  own  judgment  by 
taking  into  account  the  general  presumed  consumers'  expectations,  without  having  to 
commission an expert's report or a consumer research poll100. 

96  Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Koln e.V. v Mars GmbH [1995] ECR I-01923, para 24.  
97  Case C-99/01 Criminal proceedings against Gottfried Linhart and Hans Biffl [2002] ECR I-09375, para 35. 
98  ‘Puffery’  is  a  subjective  or  exaggerated  statement  about  the  qualities  of  a  particular  product,  which  is  not 
meant to be taken literally. This is the kind of practice referred to in the last sentence of Article 5(3) UCPD.  

99  For vulnerable consumers see 2.3 below.  
100 Case C-210/96 Gut Springenheide and Tusky v Oberkreisdirektor Steinfurt [1998] ECR I-4657, para 31, 32, 
36 and 37. See also Case C-220/98, Estée Lauder Cosmetics GmbH & Co. ORG, v Lancaster Group GmbH, 
opinion of Advocate General Fennelly, para 28. 

38 

 
 
 
                                                            
For example: 

  A  decision  by  the  UK  High  Court  of  Justice  states  that  the  term  ‘average 

consumer’ relates to ‘consumers who take reasonable care of themselves, rather than 
the ignorant, careless or over-hasty’. The High Court also concluded that one cannot 
assume that the average consumer will read small print on promotional documents.101 

 

 

In  Germany,  the  Oberlandesgericht  Karlsruhe  found  that  people  with  impaired 
eyesight can also be considered average consumers and printing information in a very 
small font can be considered a misleading commercial practice.102 A similar decision 
was taken by the Slovak Trade inspection.103 

In  Hungary  the  Metropolitan  High  Court  of  Appeal  found  that  a  reasonably  acting 
consumer  is  not  suspicious  and  tends  to  trust  that  the  received  information  is  valid 
and accurate. A reasonably acting consumer is not obliged to further search for the 
entire  accurate  content  of  the  message  delivered  to  him,  unless  the  sender  of  the 
message emphatically draws his attention to, or there is strong reference to such an 
obligation in the text of the message.104 

Article 5(2)(b) of the UCPD further refines the average consumer test when the interests of 
specific  groups  of  consumers  are  at  stake.  When  the  practice  is  directed  at  a  particular 
group  of  consumers,  its  impact  should  be  assessed  from  the  perspective  of  the  average 
member of the relevant group. 

Article 5(2) 

2. A commercial practice shall be unfair if: 
(…) 

(b) it materially distorts or is likely to materially distort the economic behaviour with regard 
to the product of the average consumer whom it reaches or to whom it is addressed, or of the 
average member of the group when a commercial practice is directed to a particular group 
of consumers. 

For example: 

 

In  a  case  concerning  misleading  advertising  of  children’s  diapers,  notably 
implying  a  correlation  between  allergies  and  the  trader's  diaper's,  the 
Swedish Market Court identified the average consumer as parents with small children, 
not having any special knowledge about allergies.105 

101 [2011] EWCH 106 (Ch). 
102 4 U 141/11. 
103 P/0359/07/2010. 
104 Fővárosi Ítélőtábla, Magyar Telekom Nyrt and others, case ID: 2.Kf.27.171/2012/4. 
105  Decision of 4 July 2012 of the Marknadsdomstolen: http://www.marknadsdomstolen.se/Filer/Avgöranden/Dom2012-7.pdf.  

39 

 
 
 
 
 
 
  
 
 
 
 
                                                            
Findings  from  the  European  Commission's  study  on  consumer  vulnerability 
across key markets106  

A  recent  study  on  consumer  vulnerability  looked  into  the  concepts  of  "average"  and 
"vulnerable"  consumer,  as  developed  by  the  Court  of  Justice,  with  a  particular  focus  on  the 
UCPD.  

The study looked at how these legal concepts have been understood across Member States and 
found  that,  although  used  across  a  number  of  cases,  some  level  of  divergence  in  the 
interpretation exists.  

The  study  furthermore  investigated  the  concept  of  the  average  consumer  in  two  ways  –  in 
relation to the indicators developed by the study to conceptualise consumer vulnerability and 
in relation to the definition of the average consumer in the UCPD, i.e. referring to the average 
consumer as reasonably "well informed", "observant" and "circumspect".  

On  whether  the  average  consumer  is  "well  informed",  the  study  found  that  the  average 
consumer, as represented by the median consumer response per indicator, feels quite informed 
about prices, declares that he/she reads communication from the internet, banking and energy 
providers (but admits to have only glanced over it or skim read it), and states that he/she does 
not  rely  on  information  from  advertisements  only.  As  regards  the  concept  of  being 
"observant" and "circumspect", the study found that the median consumer sees him/herself as 
quite careful in dealing with people and in making decisions, as not very willing to take risks 
and that he/she disagrees that advertisements report objective facts. The median consumer was 
also able to correctly identify the meaning of concepts such as KWh, Megabytes/per second 
and interest rate and to correctly answer questions measuring basic computational abilities107 
and credulity108.  
Most  of  the  above  indicators  reflect  the  self-reported  average  –  as  opposed  to  objective 
measures – of the concepts of being "well-informed", "observant" and "circumspect" and 
should  hence  be  interpreted  with  caution,  as  they  are  likely  to  be  influenced  –  at  least  in 
part – by behavioural biases such as consumer overconfidence109. 

This  is  underpinned  by  the  fact  that,  when  presented  with  complex  offers  in  behavioural 
experiments110, the  median consumer was actually not able to  select the  best deal in  the 
experiments reflecting current marketing practices in the energy sector (complex pricing), the 
online sector (bundling of offers) and across sectors (teaser rates - initial rates below market 
rates  that  will  be  in  effect  for  only  a  short  time,  following  which  the  rate  will  gradually 
increase).  

106  Study  on  consumer  vulnerability 

in  key  markets  across 

the  European  Union 

(EACH/2013/CP/08).  Available  at: 

http://ec.europa.eu/consumers/consumer_evidence/market_studies/vulnerability/index_en.htm 

107  Consumers were asked the following questions:  Suppose that the exact same product is on sale in shop A and shop B. Which shop is 
cheaper if…? 1) Shop A offers a TV set for 440 €. Shop B offers the exact same type of TV set at 500 €, but with a discount of 10%, 2) 
Shop A offers a TV set for 890 €. Shop B offers the exact same type of TV set at 940 €, but with a reduction of 60 € (currency adapted to 
county).  

108  Consumers were presented with the following radio ad: “Sign-up to BEACH BREAKS and receive a free pair of sunglasses. Sunglasses 
delivered when you purchase one of our beach holidays”, and asked whether the advertisement in their opinion "1) Offers free sunglasses 
to all who sign-up to beach breaks, 2) Offers sunglasses only to those who buy a holiday from beach breaks, or 3) Don’t know". 

109  Consumers' behavioural biases – in particular over-confidence – are highlighted in the study on consumer vulnerability in key markets 
across  the  EU  ((EACH/2013/CP/08))  and  widely  documented  in  relevant  literature  (e.g.  Lunn,  P.  and  Lyons,  S.  (2010).  ‘Behavioural 
Economics and „Vulnerable Consumers": A Summary of Evidence’, Economic and Social Research Institute (ESRI); or Kahneman,D., 
Slovic, P., and Tversky, A. (Eds.) (1982). Judgement Under Uncertainty: Heuristics and Biases.  Cambridge University Press). 
110  The behavioural experiments were conducted in five countries: Romania, Portugal, Lithuania, The United Kingdom and Denmark. 

40 

 
 
 
 
 
 
                                                            
Furthermore,  the  median  consumer  reports  that  he/she  never  compares  deals  by  banks  and 
energy providers, and that he/she has problems comparing deals from such providers. The 
median consumer also feels vulnerable to some extent due to personal characteristics, such as 
health problems, age, belonging to a minority group etc. 

Overall, the majority of the indicators show a  consistent picture of the average consumer 
across  the  28  EU  Member  States,  but  some  differences  between  countries  have  been 
found111. For example, 69% of consumers in Bulgaria find it either "very" or "fairly" difficult 
to  compare  energy  deals,  while  35%  of  consumers  in  Germany  say  the  same.  In  Denmark, 
63% of consumer finds it either "very" of "fairly" difficult to compare the services offered by 
banks, while this is the case for 33% of UK consumers.  

These findings point to the fact that the characteristics of the average consumer depend both 
on the situation he/she is in and how these characteristics are measured. The findings of this 
study  can  therefore  guide  the  understanding  of  the  average  consumer,  and  country-specific 
findings can be found in the final report. 
When designing their commercial messages, traders may, at times and in light of the specific 
nature of the products at stake, need to take certain social, linguistic and cultural features 
into account which are typical of the average consumers to which the products are targeted. In 
certain cases, such social, linguistic and cultural features, which can also be peculiar to a 
given  Member  State,  may  therefore  also  justify  a  different  interpretation  of  the  message 
communicated in the commercial practice by the competent enforcement authority or court. In 
a case relating to misleading cosmetics advertising, the Court held that: 

‘In order to apply that test to the present case, several considerations must be borne in 
mind.  In  particular,  it  must  be  determined  whether  social,  cultural  or  linguistic 
factors  may  justify  the  term  ‘lifting‘,  used  in  connection  with  a  firming  cream, 
meaning  something  different  to  the  German  [average]  consumer  as  opposed  to 
consumers  in  other  Member  States,  or  whether  the  instructions  for  the  use  of  the 
product  are  in  themselves  sufficient  to  make  it  quite  clear  that  its  effects  are  short-
lived, thus neutralising any conclusion to the contrary that might be derived from the 
word ‘lifting‘.’112 

Moreover, the Court stated that: 

‘a prohibition of marketing on account of the misleading nature of the trade mark is 
not, in principle, precluded by the fact that the same trade mark is not considered to 
be  misleading  in  other  Member  States.  […]  it  is  possible  that  because  of  linguistic, 
cultural  and  social  differences  between  the  Member  States  a  trade  mark  which  is 

111  When  assessed  against  the  indicators  developed  by  the  study  to  conceptualise  consumer  vulnerability,  it  was  found  that  the  countries 
where  the  median  consumer  shows  somewhat  less  vulnerability  than  the  average  across  the  EU28  are:  Austria,  Belgium,  the  Czech 
Republic, Finland, Germany, Iceland, Ireland, Luxembourg, Malta, Norway, Poland, Slovakia, Slovenia, Sweden, the Netherlands  and 
the United Kingdom. In contrast, countries where the median consumer is slightly more vulnerable than on average across the EU28 are 
Bulgaria, Cyprus, Greece, Hungary, Latvia, Lithuania, Portugal, Romania, and Spain. In the remaining countries, the median consumer’s 
vulnerability pattern is similar to the EU-wide pattern. These countries are Croatia, Denmark, Estonia, France, and Italy.  

112  Case C-220/98 Estée Lauder Cosmetics GmbH & Co. OHG v Lancaster Group. [2000] ECR I-00117, para 29. 

41 

 
 
 
 
                                                            
not  liable  to  mislead  a  consumer  in  one  Member  State  may  be  liable  to  do  so  in 
another.’ 113 

Therefore,  on  the  basis  of  the  average  consumer  test  and  despite  the  UCPD’s  full 
harmonisation  character,  it  could  be  theoretically  justified  to  require  a  foreign  trader  to 
provide  additional  information  on  social,  cultural  or  linguistic  grounds.  In  other  words,  the 
omission of such information could mislead consumers in the country of destination, unlike 
those in the country of origin. 

2.6 

Vulnerable consumers 

Article 5(3) — Prohibition of unfair commercial practices 

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

Recital 19 

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

The UCPD is based on the idea that, whilst it is appropriate to protect all types of consumers 
from unfair  commercial practices, consumers who qualify as  members of one of the groups 
listed  in  Article  5(3)  should  be  ensured  a  higher  level  of  protection  than  ‘the  average 
consumer’ referred to in Article 5(2).     

Recital  19  of  the  Preamble  further  clarifies  the  interpretation  of  Article  5(3):  while  Article 
5(3)  appears  to  exclusively  qualify  consumers  as  vulnerable  because  of  their  ‘mental  or 
physical infirmity, age or credulity’, recital 19 provides a non-exhaustive list of characteristics 
that make a consumer ‘particularly susceptible’.  

For example: 

 

In  a  case  involving  the  omission  of  material  information  by  a  credit 
institution, the Hungarian Competition Authority considered that consumers that had 
been  banned  by  credit  institutions  due  to  poor  ability  to  pay  were  particularly 

113  Case C-313/94 F.lli Graffione SNC v Ditta Fransa [1996] ECR I-06039, para 22. 

42 

 
  
 
 
 
 
 
 
                                                            
susceptible to a specific offer.114 

Findings  from  the  European  Commission's  study  on  consumer  vulnerability 
across key markets115: 

Taking  stock  of  various  existing  definitions  and  understandings  of  the  concept  of  consumer 
vulnerability,  the  study  establishes  a  broad  definition,  where  being  more  susceptible  to 
marketing practices represents one of five "dimensions" of consumer vulnerability. The study 
defines the "vulnerable consumer" as:  

"A  consumer,  who,  as  a  result  of  socio-demographic  characteristics,  behavioural 
characteristics, personal situation or market environment: 

o  Is at higher risk of experiencing negative outcomes in the market; 
o  Has limited ability to maximise his/her well-being; 
o  Has difficulty in obtaining or assimilating information; 
o  Is less able to buy, choose or access suitable products; or 
o  Is more susceptible to certain marketing practices". 

From  a  UCPD  point  of  view,  the  last  of  these  "dimensions"  is  the  most  relevant,  as  Article 
5(3)  defines  vulnerable  consumers  as  consumers  who  are  ‘particularly  vulnerable  to  the 
practice or the underlying product (…)’.  

Most  consumers  show  signs  of  vulnerability  in  at  least  one  dimension,  while  a  third  of 
consumers  show  signs  of  vulnerability  in  multiple  dimensions.  Less  than  a  fifth  of  the 
consumers interviewed show no signs of vulnerability. 

As consumer vulnerability is multi-dimensional, so is the impact of personal characteristics on 
the  likelihood  of  being  vulnerable  as  a  consumer.  For  example,  characteristics  like  age  and 
gender can increase vulnerability in some dimensions, but not in others. 

2.6.1 

The vulnerability criteria in Article 5(3) 

Infirmity  (mental  or  physical)  includes  sensory  impairment,  limited  mobility  and  other 
disabilities. 

For example: 

  The  Italian  AGCM  considered  advertising  that  misleadingly  presented 

products as able to cure serious illness as particularly serious because it could cause 
vulnerable  consumers,  such  as  people  affected  by  a  serious  illness,  to  take  a 

114  Decision Vj-5/2011/73 by the Hungarian Competition Authority, 10 November 2011. 
115  Study 

key  markets 

vulnerability 

consumer 

across 

on 

in 

the  European  Union 

(EACH/2013/CP/08) 

- 

see: 

http://ec.europa.eu/consumers/consumer_evidence/market_studies/vulnerability/index_en.htm 

43 

 
 
 
 
 
 
 
 
 
 
 
 
                                                            
transactional decision that they would not have taken otherwise.116 

In this respect, it is worth mentioning that the EU ratified the United Nations Convention on 
the  Rights  of  Persons  with  disabilities  in  2010117.  In  the  UN  Committee's  first  concluding 
observations in October 2015, a recommendation was made for the EU to "take appropriate 
measures  to  ensure  that  all  persons  with  disabilities  who  have  been  deprived  of  their  legal 
capacity can exercise all the rights enshrined in the European Union treaties and legislation, 
such as (….) consumer rights (…)".118   

As regards age, it may be appropriate to consider a commercial practice from the perspective 
of consumers of various ages. 

The Commission study on consumer vulnerability119 found that age can, in some instances, 
be a driver of consumer vulnerability. For example, compared to middle aged consumers (34-
44), young consumers (16-24 years) are:  

  Less likely to take action when experiencing a problem;  
  More likely to overpay for services because they cannot use certain payment methods. 

On  the  other  hand,  the  study  found  that  elderly  consumers  (65-74  and  75+)  find  it  more 
difficult  than  middle  aged  consumers  (33-44)  to  compare  offers  and  select  deals  in  key 
markets. 

Elderly people may be more vulnerable to certain practices because of their age. Aggressive 
door-to-door selling methods may not affect the average consumer but are likely to intimidate 
a  certain  group  of  consumers,  in  particular  the  elderly,  who  may  be  more  vulnerable  to 
pressure selling.  

Findings  from  the  European  Commission's  study  on  online  marketing  to 
children:120 

  Children  have  clear  difficulties  in  recognising  online  advertising  and 

consciously defending  themselves  against commercial persuasion and are affected in 
their choices and behaviour by such practices. 

  The effects of embedded advertisements in games on actual behaviour can be clearly 
documented.  A  behavioural  experiment  investigating  the  effect  of  embedded 
advertisements  in  games  (in  this  case  an  advergame)  found  that  playing  a  game 
promoting  energy-dense  food  induced  higher  energy-dense  snack  intake  among 
children compared to children playing an advergame promoting a non-food product. 

116  PS6980 - Autorità Garante della Concorrenza e del Mercato  
117  http://www.un.org/disabilities/convention/conventionfull.shtml 
118  http://www.eesc.europa.eu/?i=portal.en.events-and-activities-disabilities-convention  
119  Study 

key  markets 

vulnerability 

consumer 

across 

on 

in 

the  European  Union 

http://ec.europa.eu/consumers/consumer_evidence/market_studies/vulnerability/index_en.htm 

120  To be published in the second quarter of 2016.  

44 

(EACH/2013/CP/08) 

- 

see: 

 
 
 
 
 
 
 
                                                            
  A  behavioural  experiment  investigating  the  effect  of  prompts  to  make  in-app 
purchases in games found that such prompts influence children’s consumer behaviour 
and several children report having bought extra features without fully realising that it 
would cost money. Many children find it difficult to make a decision when prompted 
to make in-app purchases. 

  Children’s  vulnerability  depends  on  several  factors,  including  the  medium  in  which 
the advertisement is sent. Children are more likely to understand the commercial intent 
of an advertisement shown on TV than advertisements in online games. Children are 
also  less  likely  to  notice  and  understand  the  commercial  intent  of  ‘embedded 
advertisements’ as compared to more direct advertisements. 

In addition to Article 5(3) of the UCPD, children benefit from specific protection through the 
ban on direct exhortations in Annex I No 28 to the UCPD. This ban, which includes putting 
pressure on children to buy a product directly or to persuade adults to buy items for them (the 
‘pester power’), is discussed in section 4.6.   

As  mentioned  in  section  2.5  on  the  average  consumer,  the  capacities  of  children  in 
understanding online and offline advertising will vary greatly from one child to the next and 
depending  on  age  and  maturity.  To  a  certain  extent,  it  is  possible  to  take  this  into  account 
under the UCPD, as Article 5(3) allows assessing a commercial practice from the perspective 
of an average member of a specific age group.   

Teenagers  represent  another  category  of  consumers  often  targeted  by  rogue  traders. 
Promoting products which are particularly appealing to teenagers might exploit their lack of 
attention  or  reflection,  as  well  as  their  risk-taking  behaviour,  due  to  their  immaturity  and 
credulity. 

For example: 

  An  advertisement  for  mobile  phone  services  conveying  the  message  that,  by 

subscribing to a particular loyalty plan, you can easily make and maintain friends is 
likely  to  be  taken  more  literally  by  teenagers.  Depending  on  the  circumstances,  this 
could be taken into account under Article 5(3) UCPD. 

The  concept  of  ‘credulity’  covers  groups  of  consumers  who  may  more  readily  believe 
specific claims. The term is neutral and circumstantial, so the effect is to protect members of a 
group  who  are  for  any  reason  particularly  open  to  be  influenced  by  a  specific  commercial 
practice. Any consumer could qualify as a member of this group. 

The  study  on  consumer  vulnerability121  found  that  people  failing  a  credulity  test  are  more 
likely  than  others  to  have  problems  choosing  deals.  Furthermore,  people  who  consider 
themselves as credulous are less likely to complain when facing problems and are more likely 
to feel vulnerable as consumers. 

121  Study  on  consumer  vulnerability 

the  European  Union 
http://ec.europa.eu/consumers/consumer_evidence/market_studies/vulnerability/index_en.htm  

in  key  markets  across 

(EACH/2013/CP/08).  Available  at: 

45 

 
 
 
 
 
 
                                                            
For example: 

  A  trader  advertised  the  sale  of  bags  of  sweets  by  stating  that  for  each  bag 

sold,  it  would  plant  one  tree.  However,  the  trader  had  already  agreed  to  plant  a 
certain  number  of  trees,  independently  from  the  number  of  candy  bags  sold.  The 
Finnish  Market  Court  upheld  a  claim  by  the  Consumer  Ombudsman  that  this 
statement took advantage of the credulity of consumers that were concerned about the 
environment.122  

2.6.2 

‘Foreseeability’ requirement 

The  ‘vulnerable  consumer’  criteria  apply  if  a  commercial  practice  distorts  the  economic 
behaviour of a group of consumers who are particularly vulnerable ‘in a way which the trader 
could reasonably be expected to foresee’. 

For example: 

  Online  games  or  applications  that  are  likely  to  concern  children  or 

teenagers, as a vulnerable group, are usually not solely targeted at children. Indeed, 
games  can  be  very  popular  also  among  adults,  although  they  often  use  cartoons  or 
other  features  children  or  teenagers  are  typically  attracted  by.  The  ‘foreseeability’ 
criteria  becomes  relevant  each  time  one  needs  to  establish  whether  a  given  trader 
could  have  reasonably  expected  this  practice  to  appeal  in  particular  to  vulnerable 
groups.123 

This criterion adds an element of proportionality to the assessment of a commercial practice 
in relation to vulnerable consumers.  

It aims at holding traders responsible only if the negative impact of a commercial practice on 
a category of vulnerable consumers could reasonably be considered foreseeable by the trader.  

This  means  that  traders  are  not  required  to  do  more  than  is  reasonable,  both  in  considering 
whether  the  practice  would  have  an  unfair  impact  on  any  clearly  identifiable  group  of 
consumers and in taking steps to limit such impacts. 

As a consequence, a commercial practice would not be likely to be considered misleading if 
some consumers, because of their extreme naivety or ignorance, are misled by, or otherwise 
act irrationally in response to, even the most honest commercial practice. 

For example: 

  There may be a few consumers who may believe that ‘Spaghetti Bolognese’ is 

122  MAO: 157/11, the Market Court of Helsinki, 8 April 2011. 
123  See for example the Common Position of the Consumer Protection Cooperation Network on in-app purchases, as discussed in section 

5.2.1.3 on app stores.  

46 

 
 
 
 
 
 
 
 
                                                            
actually made in Bologna or ‘Yorkshire Pudding’ in Yorkshire. Traders, however, will 
not be held liable for every conceivable interpretation of or action taken in response 
to their commercial practice by certain consumers. 

2.7 

Invitation to purchase — the concept 

Article 2(i) 

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

For ‘invitations to purchase’, Article 7(4) of the UCPD regards certain pieces of information 
as ‘material’. This means that traders will need to provide consumers with this information if 
it not otherwise apparent from the context. 

The ‘characteristics of the product’ are invariably present as soon as there is verbal or visual 
reference to the product. A different interpretation could incentivise traders to provide vague 
product descriptions or omit information in their commercial offers in order to circumvent the 
information requirements provided for by Article 7(4) of the UCPD. 

The  last  part  of  the  definition  in  Article  2(i)  (‘and  thereby  enables  the consumer  to  make  a 
purchase’) does  not  require the commercial communication to  provide the consumer with  a 
mechanism  to  actually  purchase  (e.g.  a  phone  number  or  a  coupon).  It  means  that  the 
information  given  in  the  product  marketing  must  be  sufficient  to  enable  the  consumer  to 
take the decision as to whether to purchase a specific product for a specific price. 

In the Ving Sverige case, the Court held:124  

‘It follows that, for a commercial communication to be capable of being categorised 
as an invitation to purchase, it is not necessary for it to include an actual opportunity 
to  purchase  or  for  it  to  appear  in  proximity  to  and  at  the  same  time  as  such  an 
opportunity.’ 

An invitation to purchase is a narrower concept than advertising, and not all commercial 
communications will qualify as an invitation to purchase within the meaning of Article 2(i).  

However, an invitation to purchase is a wider concept than pre-contractual information. 
While pre-contractual information requirements refer to information that needs to be provided 
before  the  consumer  enters  into  a  contract,  an  invitation  to  purchase  does  not  necessarily 
imply that the next step for the consumer is to enter into a contract with a trader. 

124  Case C-122/10 Konsumentombudsmannen v Ving Sverige AB, Judgement of 12 May 2011, paragraph 32. 

47 

 
 
 
  
 
 
                                                            
For example: 

  Radio  advertising  that  includes  a  product’s  characteristics  and  price  is  an 

invitation to purchase, but will normally not qualify as pre-contractual information.  

This  distinction  is  particularly  important  in  relation  to  the interplay  between  the  UCPD  and 
the  Consumer  Rights  Directive.  A  wide  variety  of  commercial  communications  would 
normally qualify as invitations to purchase. 

For example:125 

  An airline website displaying offers for flights and their prices; 

  A mail order advertisement;126  

  A leaflet from a supermarket advertising for discounted prices on certain products. 

The  UCPD  leaves  traders  the  choice  as  to  whether  to  include  the  price  in  their  commercial 
communications. A commercial communication or advertisement that includes an exhaustive 
description  of  a  product  or  service’s  nature,  characteristics  and  benefits  but  not  its  price 
cannot be considered an ‘invitation to purchase’ within the meaning of Article 2(i) of the 
UCPD.  An  example  of  commercial  communications  which  are  not  invitations  to  purchase 
would be advertisements promoting a trader’s ‘brand’ rather than any particular product (i.e. 
brand advertising). 

For example: 

  A  Belgian  Court  ruled  that  an  advertisement  inviting  a  consumer  to  visit  a 

website to obtain an insurance offer does not constitute an invitation to purchase. 127 

Information  requirements  set  out  in  Article  7(4)  are  discussed  in  Section  3.4.5,  which  deals 
with material information in invitations to purchase.  

125  See  also  Guidance  on  the  UK  Regulation  (May  2008)  implementing  the  Unfair  Commercial  Practices  Directive,  2008  Consumer 
2008 

Protection 
(http://www.oft.gov.uk/advice_and_resources/small_businesses/competing/protection) page 36. 

Trading, 

Trading, 

Unfair 

Office 

from 

Fair 

of 

126  For example,  an  advertisement  in  a magazine  features  T-shirts  for sale. The  prices  and  sizes  of the  T-shirts available  are given  in  the 
advertisement and the bottom half of the advertisement is an order form which can be filled in, with payment enclosed, and sent direct to 
the retailers.  

127  Commercial Court of Antwerp, 29 May 2008, Federatie voor verzekerings- en financiële tussenpersonen v ING Insurance Services NV 

and ING België NV.  

48 

 
 
 
 
 
 
 
 
 
 
 
                                                            
3. 

3.1 

PROVISIONS OF THE UCPD  

The functioning of the UCPD – Directive flowchart 

This flowchart illustrates the relationship between the ‘black list’ of commercial practices in 
the  Annex  and  the  general  clauses  of  the  UCPD,  namely  Articles  6  to  9  and  Article  5 
respectively.  

In order to be considered unfair and therefore prohibited under the UCPD, it is sufficient that 
a commercial practice fulfils only one of these tests. 

Does the commercial practice: 

…fall under the black list of unfair commercial practices (Annex 
I)? 

YES 

NO 

…constitute a misleading 
(Art 6 and 7) or an aggressive 
practice (Art 8 and 9)… 

…which is likely to distort the 
transactional decision of the 
average consumer? 

YES 

NO 

… infringe professional 
diligence (Art 5(2)) and… 

…is likely to distort the 
transactional decision of the 
average consumer? 

YES 

NO 

Practice is not 
prohibited 

d
e
t
i
b
i
h
o
r
p
s
i

e
c
i
t
c
a
r
P

3.2 

The general clause — the requirements of professional diligence 

Article 5 — Prohibition of unfair commercial practices128 

1. Unfair commercial practices shall be prohibited. 

2. A commercial practice shall be unfair if: 

(a) it is contrary to the requirements of professional diligence, and 

128  Likewise, Articles 6, 7 and 8 of Directive 2005/29/EC refer to the concept of average consumer. 

49 

 
 
 
  
 
 
 
 
                                                            
 
 
 
 
 
 
(b) it materially distorts or is likely to materially distort the economic behaviour with regard 
to the product of the average consumer whom it reaches or to whom it is addressed, or of the 
average member of the group when a commercial practice is directed to a particular group of 
consumers. 

Article 2 (h) 

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

Article 5(2) provides a general clause setting two cumulative criteria for assessing whether 
commercial practices should be deemed unfair. It functions as a ‘safety net’ to make sure that 
any unfair practice which is not caught by other provisions of the UCPD (i.e. that is neither 
misleading, aggressive or listed in Annex I) can still be penalised. The provision is also future 
proof as it allows for emerging unfair practices to be tackled. 

Article  5(2)  prohibits  commercial  practices  that  are  contrary  to  the  requirements  of 
professional diligence if they are likely to materially distort the economic behaviour of the 
average consumer. 

This is a self-standing criterion — it is not an additional cumulative test that needs to be met 
for  a  practice  to  be  found  in  breach  of  any  of  the  specific  categories  of  unfair  practices  in 
Articles 6 to 9 or Annex I to the UCPD. This is illustrated by the UCPD flowchart. 

This was confirmed by the Court: 

‘45   […] having regard both to the wording and to the structure of Articles 5 and 6(1) 
of that directive, and to its general scheme, a commercial practice must be regarded 
as ‘misleading’ within the meaning of the second of those provisions if the criteria set 
out there are satisfied, and it is not necessary to determine whether the condition of 
that practice’s being contrary to the requirements of professional diligence, laid down 
in Article 5(2)(a) of that directive, is also met. 

46   The interpretation above is the only one capable of preserving the effectiveness of 
the  specific  rules  laid  down  in  Articles  6  to  9  of  the  Unfair  Commercial  Practices 
Directive. Indeed, if the conditions for the application of those articles were identical 
to  those  set  out  in  Article  5(2)  of  the  directive,  those  provisions  would  have  no 
practical significance, even though they are intended to protect the consumer from the 
most common unfair commercial practices […]’129 

The  notion  of  ‘professional  diligence’  encompasses  principles  which  were  already  well-
established  in  the  laws  of  the  Member  States  before  the  adoption  of  the  UCPD,  such  as 

129  Case  C-435/11,  CHS  Tour  Services  GmbH  v  Team4  Travel  GmbH,  19  September  2013;  confirmed  in  Case  C-388/13,  UPC,  16  April 

2015, paragraphs 61-63.  

50 

 
 
 
 
 
                                                            
‘honest market practice’, ‘good faith’ and ‘good market practice’. These principles emphasise 
normative values that apply in the specific field of business activity. 

For example: 

  The  Polish  Office  of  Competition  and  Consumer  Protection  acted  against  a 

trader  providing  satellite  television  services  on  the  grounds  that  it  had  not  shown 
professional  diligence.  Although  contracts  were  limited  in  time,  if  the  consumer  did 
not take steps to prevent renewal at the time of expiry, the trader would automatically 
consider the contract renewed.130    

It  follows  from  Article  5(2)(b)  that  in  order  to  be  found  contrary  to  the  requirements  of 
professional  diligence,  a  commercial  practice  must  also  be  considered  likely  to  ‘materially 
distort  the  economic  behaviour’  of  consumers.  This  concept  is  discussed  in  section  2.4 
above. 

For example: 

 

In  April  2015,  the  Italian  AGCM  took  action  against  a  debt  collector.  The 
authority  found  that  the  trader  applied  undue  pressure  and  repeated  aggressive 
practices against consumers. AGCM  concluded that such behaviour was contrary to 
the requirements of professional diligence and impaired the freedom of choice of the 
average consumer, thus causing him to take a transactional decision that he would not 
have taken otherwise.131 

For specific issues  concerning the professional diligence of online platforms see section 5.2 
‘Online sector’.    

3.3 

Misleading actions 

Article 6 — Misleading actions 

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

(a) the existence or nature of the product; 

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, 
composition, accessories, after sale customer assistance and complaint handling, method and 
date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, 
geographical  or commercial origin or the results to  be expected from its use,  or the results 

130  Decision No DKK 6/2014.  
131  PS9540 – Euroservice-Recupero Crediti. Provvedimento n. 25425, 15 April 2015.   

51 

 
 
 
 
 
 
  
 
 
 
                                                            
and material features of tests or checks carried out on the product; 

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

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

(e) the need for a service, part, replacement or repair; 

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, 
his  qualifications,  status,  approval,  affiliation  or  connection  and  ownership  of  industrial, 
commercial or intellectual property rights or his awards and distinctions; 

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

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

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

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

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

and 

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

Together with Article 7 on misleading omissions, Article 6 is by far the most frequently used 
provision for enforcement purposes. 

Insights  from  behavioural  economics  show  that  not  only  the  content  of  the  information 
provided, but also the way the information is presented can have a significant impact on 
how consumers respond to it.  

For this reason, Article 6 explicitly covers situations where commercial practices are likely to 
deceive  consumers  ‘in  any  way,  including  overall  presentation’  ‘even  if  the  information 
provided is factually correct’. 

52 

 
 
 
 
 
 
 
 
 
 
 
 
 
It is for the national courts and administrative authorities to assess the misleading character of 
commercial  practices  by  taking  into  account  the  most  recent  findings  on  behavioural 
economics.  

For example, the use of default settings (choices consumers are presumed to make unless they 
expressly  indicate  otherwise)  or  providing  unnecessarily  complex  information  may  be 
considered misleading. 

3.3.1  General misleading information 

Article 6(1)(a) to (g) prohibit misleading actions which are capable of deceiving the average 
consumer on a wide range of elements, including: 

  the existence of the product;  

  its main characteristics (e.g. its composition, method of manufacture, geographical or 

commercial origin, the risks and results to be expected from its use);  

  the  price  or  the  manner  in  which  it  is  calculated  or  the  existence  of  a  specific  price 

advantage;  

  the nature, attributes and rights of the trader. 

Article  6  clearly  covers  any  commercial  practice  which  ‘contains  false  information  and  is 
therefore untruthful’. 

For example: 

  The  Polish  Office  of  Competition  and  Consumer  Protection  acted  against  a 

trader who falsely claimed that its loans to consumers had the lowest interest rates on 
the market. In addition, the trader included incorrect information in advertisements by 
indicating that consumers would be granted loans regardless of their credit history.132       

For  IT  products,  such  as  external  hard  disks,  USB  sticks,  mobile  phones  and  tablets,  the 
storage  capacity,  or  memory,  indicated  by  traders  does  not  always  reflect  reality. While  the 
Consumer  Rights  Directive133  stipulates  that  the  consumer  must  provide  clear  and 
comprehensible  information  about  such  main  characteristics  before  the  purchase,  Article 
6(1)(b)  UCPD  prohibits  providing  incorrect  information  about  the  main  characteristics  of  a 
product if it is likely to cause the average consumer to take a transactional decision he would 
not have taken otherwise.    

132  Decision No RPZ 4/2015.  
133  Directive 2011/83/EU  

53 

 
 
 
 
                                                            
For example: 

  The  Italian  AGCM  has  taken  action  against  a  trader  who  promoted  storage 

capacities of IT products that differed significantly from the actual storage capacity of 
the products.134 Also in Italy, the consumer association Altroconsumo has launched a 
class  action  on  the  basis  of  investigations  among  different  brands  of  IT  devices  that 
revealed  a  difference  on  average  of  one  third  between  advertised  and  actual 
memory.135    

Information  provided  to  consumers  should  also  not  deceive  or  be  likely  to  deceive  the 
consumer  in  any  way,  including  in  the  overall  presentation,  even  if  the  information  is 
factually correct. 

For example: 

  A financial institution promoted an investment product as a low risk five-year 

deposit  with  privileged  interest  and  guaranteed  capital  return  on  its  expiry  date.  In 
fact,  investors  lost  the  interest  on  the  capital  and  an  important  part  of  the  capital 
initially  invested.  The  Greek  Consumer  Ombudsman  found  this  commercial  practice 
misleading,  as  investors  had  received  inadequate  and  misleading  information  about 
the financial product offered.136 

  The Consumer Claims Tribunal in Malta considered as misleading the advertising by 
a mobile phone operator since the trader, while claiming 30% cheaper mobile rates 
than its competitors, failed to indicate in an unambiguous manner that the first minute 
of phone conversation was not on a per second basis. The Tribunal considered that, 
due to the ambiguous presentation of the offer, the consumer was not in in a position 
to take an informed decision.137 

While the UCPD does  not  provide for  any formal  requirement to indicate the  geographical 
(or commercial) origin of a product or its composition,138 misleading the consumer on such 
elements could fall under the ban laid down in Article 6(1)(b) of the UCPD if such false or 
deceiving information is likely to make the consumer take a purchase decision he would not 
have taken otherwise. 

134  PS9678 

- 

Samsung 

-  Caratteristiche 

Tecniche 

Smartphone.  Decision  No. 

25138, 

19  December 

2014, 

http://www.agcm.it/consumatore/consumatore-delibere/open/C12560D000291394/8157CD621139DDCEC1257DBD00459830.html  

135  Launched on 8 March 2016 
136  Ombudsman of the Consumer, 25th February 2013 (No of protocol 4995), Bank of Cyprus. 
137  Melita mobile case issued on 17 April 2013. 
138  Although this could be deemed material information under Article 7 of the UCPD.  

54 

 
 
 
 
 
 
 
 
                                                            
For example: 

  German  courts  decided  on  two  occasions139  that  it  is  misleading  to  market 

furniture that does not include any leather with claims that parts of the furniture are 
made  of  ‘textile  leather’.  The  courts  stressed  that  the  average  consumer  would 
presume a presence of leather in such furniture.   

Some  decisions  by  national  courts  specifically  relate  to  the  application  of  the  UCPD  over 
misleading origin claims. 

For example: 

  A  company  from  the  Dominican  Republic  was  marketing  its  production  of 

rum  in  the  Union  by  making  several  references  to  Cuba  on  the  bottles  and  in 
commercial  materials.  The  Court  of  Appeal  of  Paris  held  that  mentioning  a  famous 
geographical location on a product whereas the product does not originate from that 
location constitutes a misleading commercial practice.140  

Goods  of  the  same  brand  and  having  the  same  or  similar  packaging  may  differ  as  to  their 
composition depending on the place of manufacture and the destination market, i.e. they 
may vary from one Member State to another. 

Under the UCPD, commercial practices marketing products with a different composition are 
not unfair per se. However, the UCPD needs to be considered in cases where traders promote 
a product  as having  the same quality and composition as  the products  of the relevant  brand 
marketed in other Member States. If such commercial claims are incorrect or misleading, they 
could  be  considered  misleading  under  Article  6(1)(b)  of  the  UCPD  if  they  could  cause  the 
average consumer to take a transactional decision that he would not have taken otherwise. 

Under Article 6(1)(d), price information should not be misleading.141 

Recommended retail prices and references to previous prices could be contrary to Article 
6(1)(d)  of  the  UCPD.  This  could  be  the  case  if  a  trader  uses  an  unreasonably  high  or 
otherwise  misleading  recommended  retail  price  or  reference  price  for  the  purpose  of  price 
comparisons, giving consumers the impression that they are being offered a more significant 
discount than what is really the case. 

139  Urteil Az. I-4 U 174/11∗ OLG Hamm 8. März 2012 and Urteil Az. 3 U 219/11∗ OLG Bamberg 21. März 2012.  
140  Cour d’appel de Paris, 10 May 2012, Société Havana Club International and SA Pernod v SAS Etablissements Dugas and Société 1872 

Holdings VOF (ref 10/04016).  

55 

 
 
 
 
 
 
 
                                                            
 
For example: 

  A trader advertised sport equipment by comparing its price to the somewhat 

more expensive recommended retail price of the importer, although the importer was 
not directly selling such product to consumers. The Market Court of Finland found the 
practice  misleading  and  prohibited  the  trader  from  comparing  its  price  to  the 
recommended  retail  price,  unless  such  price  matches  the  price  actually  generally 
charged by other retailers for the same product142. 

Under Article 6(1)(g), traders should not mislead consumers over their consumer rights.   

For example: 

  The Prague City court ruled against an appeal by a trader who was fined by 

the  Czech  Trade  Inspection  Authority  for  misleading  consumers  over  their  right  of 
withdrawal. Rather than making explicit reference to the fact that consumers had 14 
days  to  withdraw  from  the  contract,  the  contracts  only  included  a  reference  to  the 
relevant provisions of the Czech Civil Code, in unclear and misleading language.143    

  A trader was prominently advertising a one-year free commercial guarantee in order 
to  promote a payable  extension of  this  commercial guarantee for  up to three or five 
years.  The  company  did  not  properly  inform  consumers  about  the  existence  of  the 
legal  guarantee  of  conformity  to  which  they  are  entitled  under  the  Consumer  Sales 
and  Guarantees  Directive  within  two  years  of  delivery  of  the  product.144  The  Italian 
AGCM  found  this  commercial  practice  misleading,  in  particular  on  the  basis  of 
Article  6(1)(g)  of  the  UCPD.145  That  decision  was  upheld  by  Italy’s  Highest 
Administrative Appeal Court on 22 September 2015.146 

A commercial practice, often referred to as ‘up to claims’, implies traders putting forward, as 
a marketing argument, the maximum benefit consumers can expect from the use of a product. 

For example: 

  An advertisement for an internet service provider claiming ‘up to 100 Mbit/s 

maximal speed’; 

  Advertising a promotion by saying ‘up to 70% off’ with the ‘up to’ in very small print, 

when most of the items are reduced by a lower percentage; 

  Claiming  that  energy  saving  tyres  will  allow  consumers  to  save  ‘up  to  80  litres  of 

petrol’. 

142  MAO:829/15 
143  Prague City Court, 11 May 2015, Bredley and Smith vs Czech Trade Inspection Authority. 
144  Directive 1999/44/EC. 
145  PS7256, Autorità Garante della Concorrenza e del Mercato, 21 December 2011, COMET-APPLE-Prodotti in garanzia. 
146  Consiglio di Stato, N. 05253/2015REG.PROV.COLL. N. 05096/2012 REG.RIC. 

56 

 
 
 
 
 
 
 
 
 
 
 
                                                            
An ‘up to claim’ may be found misleading within the meaning of Articles 6 and 7 if it does 
not reflect the reality of the offer made by the trader and if it is likely to cause the consumer 
to take a transactional decision he would not have taken otherwise.147 

‘Up  to’  claims  could  be  misleading  if  traders  are  not  in  a  position  to  substantiate  that 
consumers  are  likely  to  achieve  the  maximum  results  promised  under  normal 
circumstances.     

For example: 

  Under  Appendix  1  of 

the  Guidelines  on  Best  Practices 

in 

the 

Telecommunications Industry by the Danish Consumer Ombudsman: ‘If the speed for 
broadband connections via fixed-line broadband (such as DSL and coaxial and optic 
fibre  lines)  cannot  be  guaranteed,  the  speed  may  instead  be  indicated  as  ‘up  to’. 
However,  this  indication  may  only  be  used  if  most  (that  is,  80  %)  of  the  customers 
targeted  by  the  marketing  can  obtain  the  speed  indicated  or  a  speed  that  does  not 
differ materially from such speed.’148 

Whether  an ‘up  to’  claim  is  misleading  must  be  assessed  on  a  case-by-case  basis. Different 
criteria could be relevant, such as: 

  Whether  they  clearly  disclose  results  and  benefits  that  the  average  consumer  can 
reasonably  expect  to  achieve,  including  any  applicable  condition  or  limitation.  Not 
doing so could qualify as misleading in relation to the product’s ‘main characteristics’:  

-  by omitting material information within the meaning of Article 7(4)(a) (in the case 

of an invitation to purchase);  

-  as a misleading action within the meaning of Article 6(1)(b) of the UCPD; 

  Whether  the  trader  has  adequate  evidence  readily  available  to  substantiate  the  claim 

within the meaning of Article 12 of the UCPD. 

A  useful  definition  of  ethical  claims  is  provided  in  the  Danish  Consumer  Ombudsman’s 
Guidance on the use of environmental and ethical marketing claims:149 

‘Ethical  claims’  means  in  particular  the  use  of  statements,  etc.,  which  convey  the 
impression that the manufacturing of a product or planning of an activity of a trader 
is  made  according  to  generally  recognised  and  accepted  standards,  for  example 
concerning  child  labour  and  general  working  conditions,  nature  protection,  health, 
animal  welfare,  corporate  social  responsibility  (CSR)  initiatives  and  charity 
donations.  Such  claims  are  typically  based  on  the  trader’s  wish  to  accommodate 

147  According to research published by the UK consumer association ‘Which?’ in November 2014, ‘88% of people consider speed to be an 

important factor influencing their decision to purchase internet broadband’.  

148 

http://www.consumerombudsman.dk/~/media/Consumerombudsman/dco/Guidelines/Marketing%20of%20broadband%20connections%
20%20Danish%20Consumer%20Ombudsman.pdf. 

149  http://www.consumerombudsman.dk/Regulatory-framework/dcoguides/Environmental-and-ethical-marketing#FIRE. 

57 

 
 
 
 
                                                            
general  or  specific  developments  and  trends  that  can  be  inferred  from  consumers’ 
behaviour. 

Corporate social responsibility refers to companies taking responsibility for their impact on 
society by having in place a process to integrate social, environmental, ethical and consumer 
concerns into their business operations and core strategy. 

This has become a marketing tool used to meet the growing concern of consumers that traders 
comply  with  ethical  standards.  Companies  use  this  approach  to  show  that  they  take  into 
account  ethical  and  human  rights  concerns.  This  may  have  an  impact  on  the  transactional 
decision of a consumer who has to choose between two competing products of similar quality 
and price.  

For this reason, such initiatives will, in most cases, be ‘directly connected with the promotion, 
sale  or  supply  of  a  product’  and  therefore  qualify  as  a  commercial  practice  within  the 
meaning of the UCPD. 

Because there are often significant similarities between ethical/corporate social responsibility 
claims and environmental claims, the key principles applying to green claims should also 
apply to ethical and corporate social responsibility claims. These key principles are further 
discussed in section 5.1 on environmental claims. 

For example: 

  The Danish Consumer Ombudsman’s Guidance on the use of environmental 

and ethical marketing claims notes that ethical claims ‘must only be used to the extent 
that  such  use  is  not  misleading  with  regard  to  other  generally  accepted  ethical 
standards, e.g. concerning working conditions. Example: ‘Over the last ten years, we 
have  built  schools  for  the  children  at  our  five  production  sites  in  India’  (but  the 
company  fails  to  mention  that  the  children  work  eight  hours  a  day  at  these 
factories)’.150  

3.3.2  Confusing marketing 

Article 6(2)(a) of the UCPD addresses confusing marketing. 

Article 6(2)(a): 

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

(a) any marketing of a product, including comparative advertising, which creates confusion 

150  Guidance from the Consumer Ombudsman on the use of environmental and ethical claims, etc., in marketing, August 2014, page 21.  

58 

 
 
 
 
  
 
 
                                                            
with any products, trademarks, trade names or other distinguishing marks of a competitor; 

For example: 

  The  Swedish  Market  Court  considered  that  sending  out  invoices  that  mimic 

another  trader’s  branding  (its  name,  marks  and  invoice  design)  and  creating  the 
impression  that  services  were  rendered  by  this  other  trader  is  an  unfair  commercial 
practice.  This  was  also  contrary  to  No  21  of  Annex  I  to  the  UCPD  (including  in 
marketing material an invoice or similar document seeking payment which gives the 
consumer the impression that he has already ordered the marketed product when he 
has not).151 

  The Swedish Market Court also considered the use of the indications ‘Taxi’ and ‘Taxi 
Gothenburg’,  both  in  a  yellow  design  on  a  taxi  vehicle,  to  constitute  comparative 
advertising and create confusion with the distinguishing marks of a competitor. This 
was because another trader had performed taxi services in the Gothenburg area since 
1922 using the words ‘Taxi Gothenburg’ and the colour yellow as its trademarks.152 

A  practice  which  raises  issues  of  compatibility  with  this  provision  is  ‘copycat  packaging’. 
This refers to the practice of designing the packaging of a product (or its ‘trade dress’) 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 
trademarks. The risk posed by copycat packaging is consumer confusion and, consequently, 
the distortion of their commercial behaviour.   

Consumer deception caused by copycat packaging can take a number of forms: 

  Outright confusion — the consumer buys the copycat product having mistaken it for 

the brand; 

  Deception over origin — the consumer recognises the copycat product is different but 

believes, due to the similar packaging, that it is made by the same manufacturer; 

  Deception  over  quality  or  nature  —  again,  consumers  recognise  the  copycat  is 
different  but  believe,  due  to  the  similar  packaging,  that  the  quality  is  the  same  or 
closer to that of the copied product. 

The similar packaging suggests to consumers that the quality or nature of the copycat product 
is  comparable  to  the  quality  or  nature  of  the  brand  in  question  or  at  least  that  it  is  more 
comparable  than  they  might  otherwise  assume.  As  such,  similar  packaging  gives  the 
impression  to  consumers  that  the  price  alone  is  the  only  term  of  comparison  between  the 
products (rather than the combination of price and quality).  

151  MD 2009:36, Marknadsdomstolen, 19 November 2009. 
152  MD 2015:9, Marknadsdomstolen, 11 June 2015: http://www.marknadsdomstolen.se/Filer/Avgöranden/Dom2015-11.pdf. 

59 

 
 
 
 
 
 
                                                            
Several studies are available on the impact of copycat packaging.153  

For example: 

  A trader names or brands its new sunglasses so as to very closely resemble 

the name or brand of a competitor’s sunglasses. This practice is likely to be in breach 
of  Article  6(2)  of  the  UCPD  if  the  similarity  is  close  enough  to  confuse  the  average 
consumer, making him more likely to opt for the new sunglasses when, without such 
confusion, he otherwise would not have done so. 

Annex I to the UCPD prohibits in all circumstances some specific commercial practices that 
involve confusing marketing in relation to trade marks, brands and related features: 

 No 3 of ANNEX I 

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

No 4 of ANNEX I 

Claiming  that  traders  (including  their  commercial  practices)  or  products  have  been 
approved,  endorsed  or  authorised  by  a  public  or  private  body  when  they  have  not  been  or 
making  such  a  claim  without  complying  with  the  terms  of  the  approval,  endorsement  or 
authorisation. 

No 13 of ANNEX I 

Promoting  a  product  similar  to  a  product  made  by  a  particular  manufacturer  in  such  a 
manner  as  to  deliberately  mislead  the  consumer  into  believing  that  the  product  is  made  by 
that same manufacturer when it is not. 

153  For example, a 2009 study by the British Brands Group looked into the impact on shoppers of similar packaging.  This study found that 
one in three shoppers admitted to buying the wrong product because of its similar packaging, that as packaging becomes more similar to 
a familiar brand so more shoppers believe the products come from the same factory and that as packaging becomes more similar so more 
shoppers  are  likely  to  buy  the  product:  http://www.britishbrandsgroup.org.uk/pages/parasitic-copying.  A  2014  study  published  in  the 
Journal of Marketing proposes a method and metric to quantify the consumer confusion between leading brands and copycat brands that 
results from the visual similarity of their packaging designs: http://journals.ama.org/doi/abs/10.1509/jmr.11.0467.  

60 

 
 
 
  
 
 
 
 
 
 
 
 
                                                            
3.3.3  Non-compliance with codes of conduct 

Article 6(2)(b): 

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

(…) 

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

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

and 

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

The UCPD contains several provisions to prevent traders from unduly exploiting the trust 
which consumers may have in self-regulatory codes. It does not provide specific rules on 
the  validity  of  a  code  of  conduct,  but  relies  on  the  assumption  that  misleading  statements 
about a trader’s affiliation or about an endorsement from a self-regulatory body may distort 
the  economic  behaviour  of  consumers  and  undermine  the  trust  that  consumers  have  in  self-
regulatory codes. Firstly, Article 6(2)(b) obliges traders to comply with codes of conduct to 
which they have committed themselves in commercial communications. 

For example: 

  The  Dutch  Consumer  Authority  took  action  on  the  basis  of  this  provision 

against a provider of energy supply services. The provider, which was a member of an 
association representing energy companies, claimed to be bound by a code of conduct 
issued  by  the  association.  The  code  of  conduct  stated  that  when  consumers  request 
information only, they  should  not be  presented with  product  or service offers. In the 
case in point, however, consumers either did not receive the information requested or 
ended up bound by a contract to which they had not consented. The code of conduct 
also  stated  that  a  member  should  not  take  advantage  of  the  inexperience  or 
vulnerability  (age)  of  the  consumer.  However,  the  energy  provider  in  question  had 
taken advantage of several elderly people who were contacted.154  

Secondly,  Annex  I  to  the  UCPD  prohibits  certain  practices  in  all  circumstances  to  ensure 
that traders make responsible use of codes of conduct in marketing (Annex I points 1 and 
3 on codes of conduct, point No 2 on trust marks and point No 4 on endorsement by a public 

154  CA/NB/527/29, 6 November 2010. 

61 

 
  
 
 
 
 
 
 
 
 
 
 
 
                                                            
or  private  body).  Some  examples  are  provided  in  Section  5.1.6  (application  of  Annex  I  to 
environmental claims). 

3.4 

Misleading omissions 

Article 7 — Misleading omissions 

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

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

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

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

(a) the main characteristics of  the product, to  an extent appropriate to  the  medium  and the 
product; 

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

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot 
reasonably be calculated in advance, the manner in which the price is calculated, as well as, 
where appropriate, all additional freight, delivery or postal charges or, where these charges 
cannot  reasonably  be  calculated  in  advance,  the  fact  that  such  additional  charges  may  be 
payable; 

(d) the arrangements for payment, delivery, performance and the complaint handling policy, 
if they depart from the requirements of professional diligence; 

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

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

62 

 
  
 
 
 
 
 
 
 
 
 
 
3.4.1  Material information 

Articles 7(1) and (2) establish in very general terms a positive obligation on traders to provide 
all the information which the average consumer needs to make an informed purchasing 
decision. This is what is called ‘material information’ in Article 7.  

The  UCPD  does  not  define  ‘material  information’,  except  for  in  the  specific  case  of  an 
‘invitation  to  purchase’,  which  is  dealt  with  in  Article  7(4).  Material  information  for  an 
invitation to purchase is discussed in section 3.4.5. In addition, as discussed in Section 1.4.3, 
Article 7(5) UCPD clarifies that ‘information requirements established by EU law in relation 
to commercial communication, including advertising’, shall be regarded as material.  

In  order  to  assess  on  a  case-by-case  basis  whether  key  items  of  information  have  been 
omitted,  national  authorities  and  courts  need  to  take  into  account  all  features  and 
circumstances of a given commercial practice, including the limitations of the  medium used 
to communicate it.   

For example: 

  The  Polish  Office  of  Competition  and  Consumer  Protection  acted  against  a 

trader who offered life insurance products without including material  information in 
the  advertising.  The  trader  claimed  that  the  relatives  of  a  person  covered  by  the 
insurance would obtain all insurance benefits if that person died. However, the trader 
omitted to inform consumers that if the person died within the first 24  months of the 
contract for reasons other than an accident, the relatives would only receive limited 
insurance benefits.155         

As noted in Section 1.4.9 on the interplay with EU data protection rules, there is an increasing 
awareness of the economic value of information related to consumers’ preferences, personal 
data  and  other  user-generated  content.  If  a  trader  fails  to  inform  a  consumer  that  such 
information will be used for commercial purposes going beyond the transaction at hand, this 
could possibly qualify as a misleading omission of material information.   

3.4.2  Hidden marketing/failure to identify commercial intent 

Under Article 7(2), failing to identify the commercial intent of a commercial practice is 
regarded as a misleading omission, when this failure is likely to cause the average consumer 
to take a transactional decision he would not have taken otherwise. 

155  Decision No DDK 7/2014 by the Polish Office of Competition and Consumer Protection.  

63 

 
 
 
 
 
 
                                                            
The e-Commerce Directive156, the Audiovisual Media Services Directive157 and the e-Privacy 
Directive158 similarly lay down certain requirements in this regard with respect to commercial 
communications and the sending electronic mail for purposes of direct marketing.  

Article 6(a) of the e-Commerce Directive: 

‘Member  States  shall  ensure  that  commercial  communications  which  are  part  of,  or 
constitute, an information society service comply at least with the following conditions: 

(a) the commercial communication shall be clearly identifiable as such;’ 

Article 9(1)(a) and (b) of the Audiovisual Media Services Directive: 

'Member States shall ensure that audiovisual commercial communications provided by media 
service providers under their jurisdiction comply with the following requirements: 
(a)  audiovisual  commercial  communications  shall  be  readily  recognisable  as  such. 
Surreptitious audiovisual commercial communication shall be prohibited; 
(b) audiovisual commercial communications shall not use subliminal techniques;' 

Article 19(1) of the Audiovisual Media Services Directive: 

'Television  advertising  and  teleshopping  shall  be  readily  recognisable  and  distinguishable 
from editorial content. Without prejudice to the use of new advertising techniques, television 
advertising and teleshopping shall be kept quite distinct from other parts of the programme by 
optical and/or acoustic and/or spatial means.' 

Article 13(4) of the e-Privacy Directive: 

‘In  any  event,  the  practice  of  sending  electronic  mail  for  purposes  of  direct  marketing 
disguising  or  concealing  the  identity  of  the  sender  on  whose  behalf  the  communication  is 
made,  or  without  a  valid  address  to  which  the  recipient  may  send  a  request  that  such 
communications cease, shall be prohibited.’ 

A  specific  aspect  of  hidden  marketing  is  also  regulated  by  Article  8(5)  of  the  Consumer 
Rights Directive.159  

Article 8(5) of the Consumer Rights Directive: 

‘(…) if the trader makes a telephone call to the consumer with a view to concluding a distance 
contract,  he  shall,  at  the  beginning  of  the  conversation  with  the  consumer,  disclose  the 
identity and, where applicable, the identity of the person on whose behalf he makes that call, 

156  Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce. 
157  Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States 

concerning the provision of audiovisual media services, 

158  Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. 
159  Directive 2011/83/EU on consumer rights.  

64 

 
 
  
 
 
 
 
 
 
 
 
 
 
  
 
                                                            
and the commercial purpose of the call’. 

While these provisions focus on specific commercial practices or sectors, Article 7(2) has a 
general and broader scope and addresses any commercial practice. 

For example: 

  The  Polish  Office  of  Competition  and  Consumer  Protection  acted  against  a  trader 
who invited consumers to meetings offering them a free health check-up as part of an 
‘I care for my health’ programme. The trader failed to disclose the fact that the main 
purpose of the meetings was to present products in order to sell them to consumers.160         

In addition to Article 7(2), the UCPD bans in all circumstances certain specific practices that 
involve failure to disclose commercial intent.  

Point No 11 of Annex I bans the use of ‘editorial content in the media to promote a product 
where  a  trader  has  paid  for  the  promotion  without  making  that  clear  in  the  content  or  by 
images or sounds clearly identifiable by the consumer (advertorial)’.  

For example: 

  One of Sweden’s major newspapers teamed up with a telecom operator who finances 
a particular section of the newspaper under the title “The Digital Life”. This section 
and all of its material, including promotions of products which the telecom operator 
was about to launch, appear as the newspaper’s editorial content; the only disclosure 
to  the  public  about  the  commercial  nature  of  the  presented  material  is  the  discrete 
appearance  of  the  text  “in  collaboration  with”  followed  by  the  telecom  operator's 
trademark. The Swedish Consumer Agency assessed that the practice was in breach of 
Point 11 of Annex I UCPD.161     

Point No 22 of Annex I prohibits ‘falsely claiming or creating the impression that the trader 
is  not  acting  for  purposes  related  to  his  trade,  business,  craft  or  profession  or  falsely 
representing oneself as a consumer’. 

Article 7(2), together with points 11 and 22 of Annex I, can be particularly relevant for online 
traders. This is discussed further in Chapter 5.2 — Online Sector. 

160  Decision No RPZ 6/2015 by the Polish Office of Competition and Consumer Protection. 
161  Ärenden 2016/53 and 2015/1000: http://diabasweb.kov.se/arenlist.asp 

65 

 
 
 
 
 
 
 
 
    
 
                                                            
For example: 

 

In  its  Guidance  on  Children,  Young  People  and  Marketing,  the  Danish  Consumer 
Ombudsman comments that ‘a game on the webpages of a company where it is obvious that 
marketing for the company’s products takes place could be in line with the legislation. This is 
because it would be clear for a  child that it has entered  into a marketing universe and  also 
which products are being marketed there. Therefore, a toy manufacturer may present a game 
on its webpages in which children can play with that company’s products. On the other hand, 
if the game contains marketing for products that do not belong to the marketing universe of 
the  game,  this  would  be  a  breach  of  the  legislation.  An  example  could  be  a  game  on  the 
webpages of a toy manufacturer in which a doll drinks a particular brand of soft drink or buys 
clothes from a specific company.162’ 

3.4.3  Material information provided in an unclear manner 

According  to  Article  7(2),  providing  material  information  ‘in  an  unclear,  unintelligible, 
ambiguous or untimely manner’ is a misleading omission, if this is likely to cause the average 
consumer to take a transactional decision he would not have taken otherwise. 

For example: 

their  rights 

  A  Hungarian  Court  concluded  that  a  trader  infringed  Article  7  UCPD  by  informing 
in  an  unclear,  ambiguous  and  not  reasonably 

consumers  of 
understandable way.  
The trader had informed consumers about their right of withdrawal by providing the 
full text of a Government Decree.  
The  Court  found  that  the  text  indicated  numerous  provisions  not  applicable  to  the 
contracts at stake and that delivering the full text of  the Government Decree did not 
qualify  as  information  by  which  consumers  could  plainly  and  concretely  become 
aware of the conditions governing their right to withdraw from the contract.163’ 

  A  telephone  operator  advertised  on  TV  a  mobile  phone  subscription  by  highlighting 
the specific price benefits, whilst the restrictions and conditions of the offer were only 
presented  in  small  print  which  appeared  on  the  screen  for  a  very  short  time.  The 
Supreme Court of Finland held that, despite the limits of space and time of the medium 
used  (TV),  nothing  prevented  the  trader  to  more  clearly  indicate  such  central  facts. 
Hence, to the extent that material information had been omitted, the advertising was 
found to be misleading164.   

162  Cf.  the  Danish  Consumer  Ombudsman’s  Guidance  on  Children,  Young  People  and  Marketing,  a  revised  version  of  which  was  made 
public 1 July 2014 and is so far only available in Danish at: http://www.forbrugerombudsmanden.dk/Love-og-regulering/Retningslinjer-
og-vejledninger/Markedsfoeringsloven/Boern-og-Unge-Markedsfoering. 
163  Decision No K. 27.272/2014, Administrative and Labour Court of Gyor.  
164  KKO 2011:65 

66 

 
 
 
 
 
 
 
 
 
  
                                                            
3.4.4 

The factual context and limits of the communication medium used 

Article 7(1) underlines that to assess whether a commercial practice is misleading, it needs to 
be considered ‘in its factual context, taking account of all its features and circumstances and 
the limitations of the communication medium’. 

Article  7(3)  should  be  read  in  conjunction  with  Article  7(1).  Under  Article  7(3),  when 
assessing whether material information has been omitted, account should be taken of:  

  the limits of space and time of the communication medium used;  

  any measures taken by the trader to make the information available to consumers by 

other means. 

The above provisions apply to all sections of Article 7. In addition, under the introductory part 
of  Article  7(4),  traders  do  not  need  to  provide information  in  invitations  to  purchase  that  is 
already apparent from the context.  

According  to  Article  7(2),  providing  material  information  ‘in  an  unclear,  unintelligible, 
ambiguous or untimely manner’ is a misleading omission, if this is likely to cause the average 
consumer to take a transactional decision he would not have taken otherwise. 

For example: 

A  telephone  operator  advertised  on  TV  a  mobile  phone  subscription  by  highlighting 
the specific price benefits, whilst the restrictions and conditions of the offer were only 
presented  in  small  print  which  appeared  on  the  screen  for  a  very  short  time.  The 
Supreme Court of Finland held that, despite the limits of space and time of the medium 
used  (TV),  nothing  prevented  the  trader  to  more  clearly  indicate  such  central  facts. 
Hence, to the extent that material information had been omitted, the advertising was 
found to be misleading165. 

Article  7(4)(a)  also  states  that,  in  invitations  to  purchase,  account  should  be  taken  of  ‘the 
medium and the product’ when clarifying whether the main characteristics of the product is 
one of the elements to be regarded as material information. 

For example: 

 

In the Ving Sverige case,166 the Court found that ‘it may be sufficient for only 
certain  of  a  product’s main  characteristics  to  be  given  and  for  the trader  to  refer  in 
addition to its website, on the condition that on that site there is essential information 
on  the  product’s  main  characteristics,  price  and  other  terms  in  accordance  with  the 
requirements in Article 7 of that directive.’ 

165  KKO 2011:65 
166  Case C-122/10 Konsumentombudsmannen v Ving Sverige AB, Judgment of 12 May 2011, paragraph 59. 

67 

 
 
 
  
 
 
                                                            
Given their importance for the consumer’s purchasing decision, information about a product’s 
full price and main characteristics should be prominently displayed.  

For example: 

  A  Spanish  court  considered  as  misleading  a  leaflet  claiming  that  3%  savings  on 
purchases  could  have  been  made  by  consumers  using  the  promoted  credit  card.  The 
Court considered that the general statement in the leaflet led consumers to believe that 
savings  would  apply  to  any  kind  of  purchase  made  with  the  credit  card,  whereas  in 
reality  important  limitations  applied.  Such  limitations  were  only  specified  in  the 
contract terms: this was not deemed to be sufficient, as material information about the 
characteristics of the advertised product was omitted167 .   

The overall extent of the required information on a product’s  main characteristics must be 
assessed based on the context of the invitation to purchase, the typology of product and the 
communication medium used. 

3.4.5  Material information in invitations to purchase — Article 7(4) 

Article 7(4) lists a number of information requirements which are considered material. This is 
to  ensure  the  maximum  amount  of  legal  certainty  for  consumers  at  this  critical  point.168 
Failing  to  provide  consumers  with  information  required  by  Article  7(4)  in  the  case  of  an 
invitation  to  purchase  is  a  misleading  omission,  if  this  failure  is  likely  to  cause  the average 
consumer to take a transactional decision he would not have taken otherwise.  

The  aim  of  Article  7(4)  is  to  ensure  that,  whenever  traders  make  commercial  offers,  they 
make  available  simultaneously,  in  an  intelligible  and  unambiguous  manner,  enough 
information  to  enable  the  consumer  to  take  an  informed  decision  to  purchase  and  do  not 
mislead the consumer by the omission of important information. 

However, in order not to place  unnecessary or disproportionate information burdens on 
traders,  the  requirements  of  Article  7(4)  are  not  static  and  require  different  pieces  of 
information  depending  on  the  situation.  This  follows,  in  particular,  from  the  clarifications 
made  both  in  Articles  7(1),  7(3)  and  7(4)  that  the  factual  context  and  limits  of  the 
communication  medium  used  should  be  taken  into  account,  as  discussed  in  the  previous 
section. 

Article  7(4)(a)  specifically  clarifies  that,  when  assessing  whether  there  is  an  omission  of 
material  information  as  regards  the  main  characteristics  of  the  product,  account  should  be 
taken of ‘the medium and the product’.  

167  Audiencia  Provincial  de  Madrid  Sentencia  nº  270/2014.  Similar  conclusions  were  raised  in  another  case  handled  by  Spanish  Court, 

Juzgado de lo Mercantil de Madrid Sentencia nº 704/2012. 

168  Recital 14 clarifies that ‘In respect of omissions, this Directive sets out a limited number of key items of information which the consumer 

needs to make an informed transactional decision…". 

68 

 
 
 
 
 
                                                            
Establishing what constitutes a product’s main characteristics as referred to in Article 7(4)(a) 
may vary. Firstly, it may depend on the product concerned. 

For example: 

  A computer requires more product information than a drinking glass. 

Secondly,  the  amount  and  type  of  information  on  the  product’s  main  characteristics  may 
vary  depending  on  what  can  be  considered  ‘appropriate’  given  the  ‘medium’  used  by  the 
trader to make the commercial communication. 

Certain restrictive conditions which limit the offer should in principle be considered as part of 
the product’s main characteristics. 

For example: 

  A very limited period during which a service is provided. 

Safety warnings may, subject to a case-by-case assessment, constitute a main characteristic of 
a  product  within  the  meaning  of  Article  7(4).  Currently,  EU  sector-specific  legislation  on 
product  safety  usually  requires  traders  to  inform  about  safety  issues  on  the  product  itself 
and/or on its packaging. In the case of online sales, it may therefore be difficult for consumers 
to  take  truly  informed  transactional  decisions  in  case  the  relevant  online  website  does  not 
provide  a  legible  picture  of  the  product/package  labelling.  An  important  exception  to  this 
approach  is  contained  in  Article  11(2  of  the  Toys  Safety  Directive  2009/48/EC169,  which 
explicitly  requires 
the 
minimum/maximum  age  of  the  user,  must  be  clearly  visible  before  the  purchase,  including 
where the purchase is made online. For most other products, the UCPD can be used as a legal 
basis  to  require  traders,  especially  when  promoting  products  on-line,  to  inform  consumers 
about  those  safety  aspects  that  can,  taking  into  account  the  nature  of  the  product,  be 
considered as main characteristics within the meaning of Article 7(4).  

that  safety  warnings  for 

those  specifying 

toys,  such  as 

Under Article 7(4)(b), failure to inform consumers of the trader’s geographical address and 
identity can constitute a misleading omission. 

For example: 

 

In  a  case  relating  to  an  online  dating  service,  the  Swedish  Market  Court 
ordered a trader to post information about its name, address, registration number and 
email  address  in  a  direct  and  permanent  manner  when  marketing  the  services  it 
provided  on  the  Internet.  The  court  held  that  the  trader’s  not  posting  its  correct 
address or any email address on its website constituted a misleading omission likely to 
cause  the  consumer  to  take  a  transactional  decision  he  would  not  have  taken 

169  Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys, OJ L 170, 30.6.2009, p.1. 

69 

 
 
 
 
 
 
 
                                                            
otherwise.170 

On  the  other  hand,  omitting  to  provide  information  about  the  identity  of  the  trader  could 
sometimes be considered as ‘apparent from the context’ within the meaning of Article 7(4). 

For example: 

  The address of a shop or restaurant which the consumer is already in. 

  For online shops, Article 5 of the e-Commerce Directive requires traders to make their 
name, address and other details including their electronic mail address easily, directly 
and  permanently  accessible.  Furthermore,  under  Article  10  of  the  e-Commerce 
Directive, certain information (e.g. on the various technical steps necessary before the 
formal conclusion of a contract) must also be provided before the order is placed.   

Based  on  a  case-by-case  assessment,  stating  the  commercial  name  of  a  trader  could  be 
enough to comply with the requirement in Article 7(4)(b) on the trader’s identity. The legal 
name  must  be  stated  in  the  terms  and  conditions  of  sale,  but  it  may  not  necessarily  be 
considered material information within the meaning of Article 7(4). 

For example: 

 

In  its  advertising  material,  a  fast  food  company  will  not  need  to  specify  its 
legal status such as Ltd, SA, SARL, Inc. 

In  addition  to  the  requirement  in  Article  7(4)(b),  the  Consumer  Rights  Directive  lays  down 
further information requirements on the trader’s contact details, specifically in: 

  Article 5(1) (on-premises sales) and Article 6(1) (off-premises and distance  sales) of 

the Consumer Rights Directive171.  

Article  5(1)(c)  of  the  e-Commerce  Directive  requires  online  service  providers  to  render 
accessible  to  recipients  of  their  services  and  competent  authorities  information  about  ‘the 
details of the service provider, including his electronic mail address, which allow him to be 
contacted rapidly and communicated with in a direct and effective manner’. 

E-commerce  traders’  email  addresses  may  therefore  be  material  information  under  Article 
7(5)  of  the  Unfair  Commercial  Practices  Directive.  This  information  should  be  easy  to  find 
(i.e. not only in the general terms and conditions) and directly and permanently accessible. 

Also, under the Data Protection Directive 95/46/EC (and the future General Data Protection 
Regulation), a data controller must provide to the data subject certain mandatory information, 
which  inter  alia  includes  the  identity  (and  the  contact  details)  of  the  controller  and  of  his 

170  MD 2015:2, 9 March 2015: http://www.marknadsdomstolen.se/Filer/Avgöranden/Dom2015-2.pdf. 

171  See the DG Justice and Consumers CRD guidance. 

70 

 
 
 
 
 
 
 
 
 
                                                            
representative,  if  any  (except  where  the  data  subject  already  has  that  information)  (see  for 
details section 1.4.10). 

Article 7(4)(c) requires traders to state the total (or final) price in an invitation to purchase. 
This  must  include  all  applicable  taxes  (e.g.  VAT)  and  charges.  The  final  price  must 
include  applicable  charges  and  taxes  which  are  unavoidable  and  foreseeable  when  the 
offer is published. When the nature of the product means that the price cannot reasonably 
be  calculated  in  advance,  consumers  should  be  properly  informed  about  the  manner  in 
which  the  price  is  calculated,  as  well  as,  where  appropriate,  about  all  additional  freight, 
delivery  or  postal  charges  or,  where  these  charges  cannot  reasonably  be  calculated  in 
advance, about the fact that such additional charges may bepayable (see also Articles 5(1) 
and 6(1) of the Consumer Rights Directive).  

Experience shows that these requirements are not always complied with.  

In ‘drip pricing’, traders add costs along the purchase process for example by first showing 
the price exclusive of taxes, fees or charges or by adding charges which are unavoidable after 
first  having  presented  them  as  ‘optional’.  This  can  lead  consumers  to  take  transactional 
decisions they would not have taken, had the full price been provided as the first ‘invitation to 
purchase’. Such practice may hence amount to a misleading action or omission in breach of 
the UCPD. 

For example: 

  The  Polish  Office  of  Competition  and  Consumer  Protection  took  action 

against a telecom operator who did not inform consumers that they would have to pay 
an activation fee in order to use the services provided. Consumers were only informed 
about this fee after the contract had been signed.172 

  The  Maltese  Competition  and  Consumer  Affairs  Authority  imposed  administrative 
fines against a telecom operator who applied charges, of which the consumers were 
not informed, to provide services that the company could not deliver/supply173. 

 

 A Spanish court ruled in favour of a decision by the Municipality of Madrid imposing 
a fine on an internet provider who had failed to display the full price of its services in 
its commercial offers, notably by omitting to include network charges and taxes174.   

The issue of drip pricing is further discussed in section 5.3 on Travel and Transport.   

172  Decision No RBG 38/2014. 
173  16 July 2015 - Administrative Decision with regard to Stoppa Telefonforsaljning Limited  
174 Tribunal Superior de Justicia de Madrid Sala de lo Contencioso Administrativo Sección 10, No 112/2014 

71 

 
 
 
 
 
  
 
                                                            
Under  Article  7(4)(c)  of  the  UCPD,  using  ‘entry-level  prices’,  i.e.  indicating  the  price  'as 
from'  a  specific  minimum  amount,  is  permitted  if  the  final  price  cannot  ‘reasonably  be 
calculated in advance’ due to the nature of the product.   

For example: 

  A  travel  agency  indicated  prices  ‘as  from'  for  given  flights  and  travel 

packages. The Court ruled that the UCPD does not  rule out  the use  of entry-level 
prices,  as  long  as  the  information  provided  meets  the  Directive’s  requirements, 
taking into account the circumstances of a real case. It held that: ‘A reference only 
to  an  entry-level  price  may,  therefore,  be  justified  in  situations  where  the  price 
cannot reasonably be calculated in advance, having regard, inter alia, to the nature 
and characteristics of the product.’ 175 

The  minimum  price  should,  however,  be  a  real  price  applicable  to  certain  products,  in 
accordance with the advertisement. 

For example: 

  A  company  advertised  the  sale  of  apartments  using  statements  such  as  ‘It’s 

cheaper  than  you  might  think.  Prices  starting  from  €  2 150  per  square  metre’. 
However, it turned out that there were no apartments available at the price indicated. 
Moreover,  the  price  indicated  did  not  include  VAT.  This  commercial  practice  was 
found  to  be  misleading  by  the  Polish  Office  of  Competition  and  Consumer 
Protection.176 

Commercial practices where traders advertise prices that do not exist could also be in breach 
of  points  5  and  6  of  Annex  I  to  the  UCPD,  as  they  may  be  considered  instances  of  bait 
advertising (point 5) or bait and switch (point 6). 

Under  Article  7(4)(d),  traders  must  provide  information  about  arrangements  for  payment, 
delivery, performance and complaint handling policy if these depart from the requirements 
of professional diligence. This means that such information only needs to be displayed if such 
arrangements are to the consumer’s disadvantage compared with the standard of special skill 
and care a trader may be reasonably expected to exercise towards consumers. 

Under  Article  7(4)(e),  the  existence  of  a  right  of  withdrawal  or  cancellation  must  be 
mentioned in invitations to purchase whenever applicable. Under this requirement, traders are 
only  required  to  inform  consumers  about  the  existence  of  such  rights,  without  detailing  the 
conditions and procedures to exercise them. 

175  Case C-122/10 Konsumentombudsmannen/Ving Sverige AB, Judgment of 12 May 2011, para. 64. 
176  Decision no. RWA-25/2010, Prezes Urzędu Ochrony Konkurencji i Konsumentów, Delegatura w Warszawie, 28 December 2010, Eko-

Park S.A. 

72 

 
 
 
  
 
 
 
 
                                                            
The Consumer Rights Directive lays down more rules on the pre-contractual information to be 
provided to the consumer before the contract is signed, for example on e-Commerce websites, 
during a seller’s home visit or during a sales call over the telephone177  

For example, that Directive requires the trader to provide information about ‘the total price’ 
before  the  consumer  is  bound  by  a  contract.178  In  addition,  the  consumer  is  entitled  to  the 
reimbursement of any extra payment where the consumer has not given express consent for 
such a payment, but the trader has inferred it by using default options e.g. by using ‘pre-ticked 
boxes’.179  

For  distance  or  off-premises  contracts,  the  trader  must  provide  information  about  the 
conditions,  time  limit  and  procedures  for  exercising  the  right  of  withdrawal.  It  must  also 
provide the model withdrawal form set out in Annex I(B) to the Consumer Rights Directive.180  

3.4.6 

Free trials and subscription traps 

Free  trials  are  marketing  tools  that  allow  consumers  to  order  a  product  or  subscribe  to  a 
service without costs or for a small amount (i.e. postage of the sample).  

Findings  from  the  European  Commission's  study  on  misleading  "free"  trials 
and subscription traps for consumers in the EU181 

A study funded by the European Commission has found that 66% of the consumers surveyed 
had  ordered  free  trials  online.  Of  these  consumers,  21%  had  experienced  one  or  more 
problems.  The  study  found  that  of the  consumers  who  had  experienced  a  problem  34%  had 
had difficulties to unsubscribe, 22% could not return a sample product and 18% had not 
been aware that they had entered into a subscription.  

Among  the  consumers  who  had  experienced  a  problem,  43%  had  done  so  in  relation  to 
cosmetics  and  healthcare  products,  32%  in  relation  to  food  and  health  supplements,  25%  in 
relation  to  dating  services,  24%  in  relation to  music and films and 21%  in  relation  to  cloud 
based storage services.  

The study found that an important reason why consumers find it difficult to unsubscribe is that 
they cannot identify the traders' contact details. Another reason is that the ‘pop-up’ nature 
of free trial offers means that they often disappear quickly:  within an eight week period, 25% 
of the websites screened in the study were no longer available.  

In 60% of screened offers, one or more contact details of the trader could not be found or 
were  false  or  unclear.  At  the  moment  of  ordering  only  7%  of  mystery  shoppers  found  it 
unclear  who  was  offering  the  free  trial,  but  when  trying  to  contact  traders  to  cancel  the 
subscription  27%  did  not  find  contact  information  and  54%  of  the  consumers  attempting  to 
contact the trader did not succeed.  

Other significant issues identified were: 

177  See Articles 5(1)(d) and 6(1)(g) of the Consumer Rights Directive. 
178  See Articles 5(1)(c) and 6(1)(e) of the Consumer Rights Directive.  
179  See Article 22 of the Consumer Rights Directive.  
180  See Article 6(1)(h) of the Consumer Rights Directive. 
181  Study expected to be published in 2016.  

73 

 
 
 
 
 
 
                                                            
  Consumers  sometimes  do  not  realise  that  they  enter  into  a  subscription  when 

signing up for a free trial.   

  Traders  sometimes  omit  or  provide  information  about  the  true  costs  of  free  trial 

offers in an unclear manner.  

  Trials and subscriptions are sometimes presented as free, although they involve costs.  

If  a  trader  fails  to  provide  his  geographical  address  and  identity  in  an  invitation  to 
purchase it can be contrary to Article 7(4)(b) UCPD. In addition, Article 6(1) of the Consumer 
Rights  Directive  and  Article  5(1)(c)  of  the  e-Commerce  Directive  require  online  traders  to 
render  accessible  information  that  allows  consumers  to  contact  them.  The  requirements  of 
these Directives qualify as material information under Article 7(5) UCPD. 

If a trader does not make it clear to consumers that they may enter into subscriptions by 
signing up to  a free trial, he  may  infringe Article  7(1),  7(2)  and 7(4)(a) (in the case of an 
invitation  to  purchase)  of  the  UCPD  by  omitting  material  information.  Depending  on  the 
circumstances, there may also be an infringement of Article 6(1)(a) UCPD.   

Omitting or providing information about the true costs of free trial offers in an unclear 
manner may be contrary to Articles 6(1)(d) and/or 7(1), 7(2) and 7(4)(c) UCPD.   

For example: 

  A telecom operator in Poland advertised on billboards that consumers could 

receive either two tablets or one mobile phone and a tablet for the price of PLN 1,-. 
However, the trader did not clearly inform consumers that, in order to take advantage 
of this offer, they would have to sign both a subscription contract for 24 months and a 
purchase contract for the products with 36 monthly instalments. The Polish Office of 
Competition  and  Consumer  Protection  found  this  advertising  misleading  within  the 
meaning of Article 6(1)(d) of the UCPD.182 

Moreover, the Consumer Rights Directive contains a specific rule to improve the transparency 
of  subscription  offers  on  the  internet  in  its  Article  8(2).  According  to  this  rule,  in  distance 
contracts, information relating to the main characteristics of the service, the price inclusive of 
taxes,  the  duration  of  the  contract  and  of  the  consumers'  obligations  must  be  provided  in  a 
clear and prominent manner, and directly before the consumer places his order. In addition, 
the consumer must be given the possibility to explicitly acknowledge that the order implies an 
obligation to pay, e.g. by activating an unambiguously labelled ordering button. 

In  addition,  describing  a  products  as  ‘gratis’,  ‘free’,  ‘without  charge’  or  similar  if  the 
consumer  has  to  pay  anything  other  than  the  unavoidable  cost  of  responding  to  the 
commercial  practice  and  collecting  or  paying  for  delivery  of  the  item’  is  a  commercial 
practice  which  is  in  all  circumstances  considered  unfair  and  thus  prohibited  under  the 

182  Decision No RBG 32/2014. 

74 

 
 
 
 
 
 
                                                            
UCPD. This follows from No 20 of Annex I of the Directive, which is further explained in 
Section 4.4. 

Inertia selling (demanding payment for or the return or safekeeping of products not solicited 
by  the  consumer)  is  also  a  commercial  practice  which  is  in  all  circumstances  prohibited 
under the UCPD. This follows from No 29 of Annex I of the Directive. 

3.4.7 

Provision of certain information in another language 

Under  Article  7(2)  of  the  UCPD,  the  trader  has  to  provide  material  information  in  a  clear, 
intelligible and unambiguous manner. This requirement can come into play where part of the 
material information is displayed on a website in a particular language targeting consumers in 
a  specific  country,  as  assessed  on  a  case  by  case  approach,  while  other  pieces  of  material 
information are only available in a different language in the standard terms and conditions. 

The Consumer  Rights  Directive allows Member States to  require contractual  information  to 
be provided in their national language.183 Article 7(5) of the UCPD confirms that information 
requirements  in  other  EU  legislation  on  commercial  communications  ‘shall  be  regarded  as 
material’. Therefore, in countries that have taken up this option, a trader could be in breach of 
both the Consumer Rights Directive and the UCPD if it fails to provide the consumer with, for 
example, confirmation of the contract in the national language of the consumer’s country. In 
such a situation, the Consumer Rights Directive would prevail as sector-specific legislation as 
concerns failure to provide information in the relevant language at the pre-contractual stage of 
transactions, whilst the UCPD would apply at the advertising stage.   

Section  1.4.3  contains  further  discussion  of  other  EU  information  requirements  regarded  as 
‘material information’ on the basis of Article 7(5).  

3.4.8 

Planned obsolescence 

Planned obsolescence, or  built-in  obsolescence in  industrial design, is a commercial policy 
involving deliberately planning or designing a product with a limited useful life so that it will 
become obsolete or non-functional after a certain period of time. 

From  the  UCPD  point  of  view,  planned  obsolescence  is  not  unfair  per  se.  However,  under 
Article  7,  a  trader  who  fails  to  inform  the  consumer  that  a  product  has  been  designed 
with a limited lifetime might, according to the specific circumstances of the individual case, 
be considered to have omitted to provide material information. 

183  Information  about  the  Member  States’  use  of  the  regulatory  choices  under  the  Consumer  Rights  Directive  is  published  on  the 

Commission’s website.  

75 

 
                                                            
For example: 

Omitting information that: 

-  a  telephone's  battery  (which  is  subject  to  particular  wear  and  tear)  cannot  be 

- 

replaced, or 
the functional lifetime of a refrigerator is planned to be significantly shorter than 
for comparable products 

could be in breach of Article 7 of the UCPD. 

Existing EU legislation provides means of combating planned obsolescence.  

The  Ecodesign  Directive184  allows  the  Commission  to  establish  mandatory  minimum 
requirements for reparability, the life-time of products as well as information requirements on 
their estimated life-time.  

There  are  Ecodesign  requirements  on  life-time  in  place  for  a  limited  number  of  product 
categories,  such  as  components  of  vacuum  cleaners185  and  light  bulbs186.  Moreover,  the 
Commission proposal for a revised Energy labelling framework187 enables the future inclusion 
of information on the durability of products in the EU Energy label.  

The EU Action Plan on Circular Economy, adopted in December 2015188, highlighted that the 
Commission  will  promote  reparability,  upgradability,  durability,  and  recyclability  by 
developing further product requirements in its future work under the Ecodesign Directive, as 
appropriate and taking into account the specificities of different product groups.  

Where a lack of conformity with the contract, i.e. a defect, becomes apparent within two years 
from delivery of the good, the consumer can invoke the legal guarantee under the Consumer 
Sales  and  Guarantees  Directive189.  This  also  applies  where  the  defect  is  caused  by  planned 
obsolescence practices, if this planned obsolesce is not in conformity with the contract. Under 
this Directive, within the first six months after delivery it is the seller who has to prove that no 
lack of conformity existed at the time of delivery. 

3.5 

Aggressive commercial practices 

Article 8 — Aggressive commercial practices 

184  Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products. 
185  Commission Regulation (EU) No 666/2013 of 8 July 2013 implementing Directive 2009/125/EC with regard to ecodesign requirements 

for vacuum cleaners. 

186  Commission  Regulation  (EU)  No  1194/2012  of  12  December  2012  implementing  Directive  2009/125/EC  with  regard  to  ecodesign 

requirements for directional lamps, light emitting diode lamps and related equipment. 

187  http://ec.europa.eu/energy/sites/ener/files/documents/1_EN_ACT_part1_v6.pdf 
188  COM/2015/0614 final; see also https://ec.europa.eu/priorities/jobs-growth-and-investment/towards-circular-economy_en 
189  Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. In its proposal of 9 December 2015 
for a Directive on online and other distance sales of goods the Commission proposed to apply the reversed burden of proof during the 
entire legal guarantee period of two years. Such a rule would strengthen the consumer protection under the legal guarantee and would 
give incentives to produce higher quality and more durable products. 

76 

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

Article 9 — Use of harassment, coercion and undue influence 

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

(a) its timing, location, nature or persistence; 

(b) the use of threatening or abusive language or behaviour; 

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

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

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

The UCPD provides a single definition of aggressive commercial practices that can be applied 
across  the  EU.  The  Directive  prevents  traders  from  adopting  selling  techniques  which 
limit the consumer’s freedom of choice or conduct with regard to the product, thereby 
distorting their economic behaviour. 

For example: 

 

In a decision by the Latvian Consumer Protection Authority190 and confirmed 
by Latvian courts,191 an airline’s use of pre-ticked boxes was considered unfair on the 
grounds  that  it  was  aggressive  and  not  in  compliance  with  professional  diligence.192 
This  decision  was  taken  before  the  entry  into  application  of  the  Consumers  Rights 
Directive, which has a specific provision on the use of pre-ticked boxes in its Article 
22.      

190  CRPC decision No.E03-PTU-K115-39 of 23.10.2012 against AirBaltic. 
191  Decision of the Latvian Consumer Rights Protection Authority of 23 October 2012: 

http://www.ptac.gov.lv/sites/default/files/lieta_air_baltic_keksi_lemums_izraksts_23_10_12_2_.pdf 

192  As of 13 June 2014, Article 22 of the Consumer Rights Directive does not allow traders to use default options the consumer has to reject 
(such  as  pre-ticked  boxes)  in  order  to  avoid  additional  payments,  rather  than  requesting  the  consumer's  express  consent  for  extra 
payments. 

77 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                            
Aggressive  commercial  practices  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. 

For example: 

  According  to  the  Italian  Council  of  State,  in  order  to  qualify  as  aggressive 

and  unfair,  a  commercial  practice  should  not  only  influence  the  consumer’s 
transactional  decision,  but  also  be  carried  out  using  specific  methods.  This  implies 
that  an  aggressive  practice  should  entail  active  conduct  by  the  trader  (‘harassment, 
coercion  including  the  use  of  physical  force,  or  undue  influence’)  which  limits  the 
consumer’s freedom of choice.193 

Aggressive  practices  can  involve  conducts  already  covered  by  other  national  legislation, 
including contract and criminal law. The UCPD adds an additional layer of protection which 
can be activated by public enforcement means without necessarily having to start criminal or 
civil law proceedings. 

Article 9(c) outlaws practices which exert undue influence on consumers, such as where a 
trader  exploits  a  specific  misfortune  or  circumstance  of  which  it  is  aware  to  influence  a 
consumer’s decision on a product. 

Article 9(d) prevents traders from imposing disproportionate non-contractual barriers that 
are detrimental to consumers who wish to exercise their rights under a contract, including the 
right  to  terminate  the  contract  or  switch  to  another  product  or  trader.  This  provision  is 
important in particular to prevent non-contractual barriers to switching in telecoms and energy 
utilities contracts.  

For example: 

  The Supreme Court of Bulgaria found that the practice where a trader made 

it particularly burdensome for its customers to terminate their service contracts with it 
to the point that they were often trapped in de facto automatic renewals amounted to 
an aggressive commercial practice.194 

Article 9(e) covers any threat to take any action that cannot legally be taken. Aggressive 
practices often occur in doorstep sales or other off-premises sales of consumer goods and in 
the timeshare sector. Aggressive practices can also occur in debt recovery, where third parties 
are mandated to collect debts. Onerous or disproportionate switching barriers should also be 
regarded as aggressive practices. 

193  Consiglio di Stato, Adunanza Plenaria - Sentenza 11 maggio 2012, n.14 - Pres. Coraggio – est. Greco. 
194  Supreme 

November 

Bulgaria, 

Court 

2011, 

of 

3 

15182/2011, 

VII 

d: 

http://www.sac.government.bg/court22.nsf/d6397429a99ee2afc225661e00383a86/4ade3b5386f5ef2cc225793b003048b3?OpenDocume
nt. 

78 

 
 
    
 
 
 
 
                                                            
For example: 

  The  Italian  Antitrust  Authority  ruled  that  sending  a  notice  to  a  consumer  to 

appear  before  a  judge  who  had  no  jurisdiction  and  who  had  not  received  any 
application  from  the  trader  was  an  aggressive  practice.  The  purpose  of  the  practice 
was to intimidate consumers through undue influence.195 

The  general  rules  in  Articles  8  and  9  are  complemented  by  eight  specific  aggressive 
practices described in the ‘black list’, which are banned in all circumstances. Some of these 
practices  are  further  discussed  in  Chapter  4  on  ‘the  black  list  of  commercial  practices’.  
Certain practices towards elderly people, such as aggressive door-to-door selling methods, are 
discussed in Chapter 2.6 on vulnerable consumers. 

4. 

THE BLACK LIST OF COMMERCIAL PRACTICES (ANNEX I) 

Article 5(5) 

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

Recital 17 

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

The  list  in  Annex  I  was  drawn  up  to  enable  enforcers,  traders,  marketing  professionals  and 
customers  to  identify  certain  practices  and  give  a  more  immediate  enforcement  response  to 
them. It therefore leads to greater legal certainty. If it can be proved that the trader has carried 
out a blacklisted commercial practice, national enforcers can take action to sanction the trader 
without having to apply a case-by-case test (i.e. assessing the likely impact of the practice on 
the average consumer's economic behaviour).  

In  addition to the blacklisted commercial practices described below, Section  5.1.6 describes 
some  practices  listed  in  Annex  I  to  the  UCPD  that  could  be  particularly  relevant  to 
environmental claims. 

195  See for example PS8215, decision no 24117 of 12 December 2012.  

79 

 
 
 
 
  
 
 
 
 
 
                                                            
4.1 

Products which cannot legally be sold — banned commercial practice No 9 

Point No 9 of ANNEX I 

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

This  practice  has  been  banned  to  prevent  situations  where  a  trader  markets  a  product  or  a 
service and omits to clearly inform the consumer that there are legal rules which may restrict 
the sale, possession or use of a given product. This involves products or services for which the 
sale is banned or illegal in all circumstances, such as the sale of illegal drugs. Since such 
practices often involve criminal activities and/or dishonest operators, they are easy to identify. 
Such practices are usually also serious violations of other laws that usually are more specific 
and which take precedence over the UCPD. 

For example: 

  A trader offers goods for sale that the consumer cannot legally own because, 

for instance, the goods have been stolen. 

A second category of practices concerns products or services which are not illegal but which 
may be legally marketed and sold only under certain conditions and/or subject to certain 
restrictions. 

For example: 

  Package  travel,  which  can  only  be  marketed  by  traders  that  have  lodged  a 

guarantee  deposit,  as  required  by  the  Package  Travel  Directive.196  The  Swedish 
Market  Court  found  that  a  travel  agency  marketing  such  packages  despite  having 
failed  to  lodge  a  guarantee  deposit  with  the  Swedish  Legal,  Financial  and 
Administrative  Services  Agency,  had  infringed  point  9  of  Annex  I  in  that  consumers 
were given the false impression that the offer was legal.197  

4.2 

Pyramid schemes — banned commercial practice No 14 

Point No 14 of ANNEX I 

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

196  Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, OJ L 158, 26.06.1990, p. 59. To 
be  repealed  and  replaced  by  Directive  (EU) 2015/2302  on package  travel  and  linked  travel arrangements,  OJ  L 326,  11.12.2015,  p.  1 
with effect from 1 July 2018.  

197  2009:17, Marknadsdomstolen (Stockholm), The Consumer Ombudsman v Casa Nordica Altavista C AB, 26 June 2009.  

80 

 
  
 
 
 
 
 
 
  
 
 
                                                            
This  practice  has  been  banned  to  prevent  traders  from  luring  consumers  into  a  scheme 
promising  them  compensation  when  in  fact  the  consumer  will  actually  be  compensated 
primarily  for  bringing  new  members  into  the  scheme,  rather  than  from  the  sale  or 
consumption of products. The pyramid structure of the scheme is generally devised in such a 
way that it will deliver benefits only to the organisers at the top, whereas recruited consumers 
usually do not stand any reasonable chance to recover what they have invested. The Court has 
clarified  the  conditions  under  which  a  system  of  trade  promotion  can  be  considered  a 
‘pyramid  promotional  scheme’  within  the  meaning  of  Point  No  14  of  Annex  I.  The  Court 
noted that: 

‘the  prohibition  of  pyramid  promotional  schemes  is  based  (…)  on  three  common 
conditions.  First,  such  a  promotion  is  based  on  the  promise  that  the  consumer  will 
have  the  opportunity  of  making  a  commercial  profit.  Next,  the  realisation  of  that 
promise depends on the introduction of other consumers into the scheme. Finally, the 
greater part of the revenue to fund the compensation promised to consumers does not 
result from a real economic activity’.198 

In the same case, the Court clarified that: 

‘a pyramid promotional scheme constitutes an unfair commercial practice only where 
such a scheme requires the consumer to give financial consideration, regardless of its 
amount, for the opportunity to receive compensation that is derived primarily from the 
introduction  of  other  consumers  into  the  scheme  rather  than  from  the  sale  or 
consumption of products’.199  

In  the  case  at  hand,  a  company  had  advertised  a  bonus  to  new  customers  for  every  other 
customer they would recruit. Any newly recruited customer had to pay a registration fee. The 
Court  expressed  doubts  as  to  whether  the  possibility  for  the  consumer  to  receive 
compensation  was  derived  primarily  from  the  introduction  of  other  consumers  into  the 
scheme, noting that the bonuses paid to existing members were funded only to a small extent 
by the financial consideration required from new members. The Court also recalled that, if a 
given practice is not prohibited by the provisions of Annex I, it may still be concluded that the 
practice is unfair within the meaning of the Directive’s general provisions (Article 5 to 9)’.  

For example: 

  The  Italian  Competition  Authority  took  action  in  three  cases  involving 
pyramid schemes. One case involved a sales scheme where the compensation 
system was based not on the sales volumes, but on the number of new sales agents that 
each of the resellers was able to attract to the system. 200 Another case involved a sales 
scheme where the rewards structure was aimed mainly at attracting new consumers by 
recovering  the  registration  fee  from  the  entry  of  other  agents.  201  In  a  third  case, 

198  Case  C-515/12  ‘4finance’  UAB  v  Valstybinė  vartotojų  teisių  apsaugos  tarnyba  and  Valstybinė  mokesčių  inspekcija  prie  Lietuvos 

Respublikos finansų ministerijos, 3 April 2014, paragraph 20. 

199  Case C-515/12 ‘4finance’, paragraph 34.     
200  PS6425 Xango-Prodotti Con Succo Di Mangostano. Provvedimento n. 21917, 15 December 2010. 
201  PS4893 Agel Enterprises-Integratori. Provvedimento n. 23789, 2 August 2012. 

81 

 
 
                                                            
consumers  were  proposed  to  purchase  products  through  mechanisms  aimed  at 
recruiting other sellers who were asked for an initial contribution or subscription to a 
program  of  personal  purchases.  202  The  Authority  also  took  into  account  how  the 
schemes  worked  in  practice.  It  focused  on  the  number  of  agents  who  actually 
generated  sales  compared  with  the  total  number  of  recruited  consumers  and  to  the 
varying  significance  of  the  revenues/acquisitions  from  the  agents  or  from  sales  to 
outsiders. Investigations showed that the mechanisms involved that the consumer could 
not make a contribution in exchange for the opportunity to receive compensation that 
was derived primarily from the introduction of other consumers into the scheme rather 
than from the sale/consumption of products. 

Hierarchical  structures  such  as  pyramid  schemes  are  complex  and  it  may  be  difficult  to 
quantify the benefits of new members for the company. There may also be different methods 
for calculating the compensation received by existing members. 

For example: 

  The  Polish  Office  of  Competition  and  Consumer  Protection  took  action 

against a pyramid scheme in which the organiser offered participants opportunities to 
receive cash donations in return for introducing new members into the scheme.203 To 
obtain  such  financial  gains,  the  participants  had  to:  pay  a  registration  fee,  make  a 
cash donation to another participant, make other donations to another participant and 
pay  a  commission  to  the  organiser  of  the  system.  The  opportunity  to  obtain  cash 
donations  from  a  new  participant  would  appear  only  when  a  ‘Blue  Circle’  was  in 
place, consisting of participants introduced by people previously introduced by a new 
participant. 

It  seems  necessary  to  distinguish  between  banned  commercial  practice  No  14,  where 
participants  make  money  mostly  or  solely  by  recruiting  new  participants  into  the 
programme, and multilevel marketing, where the sales force is compensated mostly for sales 
they personally generate and also for the sales of the other salespeople they recruit. 

It is also  difficult to  draw the  line between consumers and traders:  after  a consumer has 
entered  into  a  scheme,  that  person  could,  from  the  moment  he  starts  promoting  it  ,  be 
considered as a trader and become subject to the prohibition of the UCPD himself, as regards 
the professional conducts carried out in the framework of the scheme.204  

202  PS7621 – Vemma Italia – Prodotti con succo di mangostano, Provvedimento n. 24784, 5 February 2014  
203  Decision No RKR 34/2014.  
204  For an example, see https://www.gov.uk/government/news/three-sentenced-following-cma-prosecution-of-multi-million-pound-pyramid-

promotional-scheme 

82 

 
 
 
 
 
 
                                                            
4.3 

Products  which  cure  illnesses,  dysfunctions  and  malformations  —  banned 
commercial practice No 17 

Point No 17 of ANNEX I 

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

This  ban  covers  situations  where  a  trader  claims  that  its  product  or  service  can  improve  or 
cure certain physical or psychological ailments. 

For example: 

  The Polish Office for Competition and Consumer Protection ruled that claims 

that a massage armchair had healing effects on human health (including curing spine 
and  blood  circulation  diseases)  fell  under  the  ban  imposed  in  point  No  17  of  Annex 
I.205 

Such  claims  are  already  partly  covered  under  specific  EU  legislation.  The  UCPD  is  also 
without prejudice to EU rules on the health properties of products. Point 17 therefore applies 
only  in  addition  to  existing  EU  rules  on  health  and  wellness  claims.  However,  any 
misleading practices with regard to health and wellness products can still be assessed in the 
light of Article 6 of the UCPD (e.g. where the overall presentation is deceptive). 

The prohibition relates first of all to claims regarding physical states classified as pathologies, 
dysfunctions  or  malformations  by  medical  science.  However,  as  such  claims  are  also 
regulated by sector-specific EU legislation, the practical utility of point 17 in relation to these 
practices is marginal. 

Indeed, under Article 7(3) of the Food Information Regulation,206 information about a food 
provided by a trader to a consumer ‘shall not attribute to any food the property of preventing, 
treating  or  curing  a  human  disease,  nor  refer  to  such  properties’.  This  general  provision 
applies  to  food  business  operators  at  all  stages  of  the  food  chain,  where  their  activities 
concern the provision of food information to consumers. The term ‘food information’ means 
information  concerning  the  food  and  made  available  by  means  of  labelling  other 
accompanying  material,  or  any  other  means  including  technology  tools  or  verbal 
communication. 

In addition, the EU’s Nutrition and Health Claims Regulation lays down detailed rules on the 
use  of  nutrition  and  health  claims  on  foods  in  commercial  communications  such  as 

205  Decision of the President of the Office for Competition and Consumer Protection, Ref. RPZ 2/2012 ZdroWita of 13 March 2012.  
206  Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information 

to consumers. 

83 

 
  
 
 
 
 
 
                                                            
advertising.207 Under the Regulation, claims which imply that a food has particular beneficial 
nutritional  properties  (‘nutrition  claims’)  or  that  a  relationship  exists  between  health  and  a 
food category, a food or one of its constituents (‘health claims’) cannot be made without prior 
EU authorisation. The Regulation also specifically bans the following health claims:208 

  claims which suggest that health could be affected by not consuming the food; 

  claims which make reference to the rate or amount of weight loss; 

  claims  which  make  reference  to  recommendations  of  individual  doctors  or  health 

professionals and other associations. 

Health-related claims are also covered by EU health and pharmaceutical legislation. Article 
6(1)  of  Directive  2001/83/EC  on  medicinal  products209  makes  it  clear  that  no  medicinal 
product may be placed on the market of a Member State unless a marketing authorisation has 
been issued. This Directive also sets out specific provisions on advertising medicinal products 
to the general public, which must:210  

  be set out in such a way that it is clear that the message is an advertisement and that 

the product is clearly identified as a medicinal product; 

  include the following minimum information: 

o 

the  name  of  the  medicinal  product,  as  well  as  the  common  name  if  the 
medicinal product contains only one active substance, 

o 

the information necessary for the correct use of the medicinal product, 

o  an express, legible invitation to read carefully the instructions on the package 

leaflet or on the outer packaging, as the case may be. 

In  addition,  Article  90(a)  to  (k)  of  Directive  2001/83/EC  bans  certain  specific  advertising 
techniques. For example, the advertising of a medicinal product to the general public must not 
contain any material which; 

a)  gives  the  impression  that  a  medical  consultation  or  surgical  operation  is 
unnecessary,  in  particular  by  offering  a  diagnosis  or  by  suggesting  treatment  by 
mail; 

b)  suggests that the effects of taking the medicine are guaranteed, are unaccompanied 
by adverse reactions or are better than, or equivalent to, those of another treatment 
or medicinal product; 

c)  suggests that the health of the subject can be enhanced by taking the medicine. 

207  Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made 

on foods. 

208  Article 12 of Regulation (EC) No 1924/2006. 
209  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal 

products for human use. 

210  Article 89 of Directive 2001/83/EC. 

84 

 
                                                            
In  addition,  specific  limits  (i.e.  bans)  exist  on  promoting  pharmaceuticals  and  medical 
treatments.  These  mainly  concern  relations  between  professionals  i.e.  traders  and  doctors. 
The choice of the product/treatment depends on the doctor or specialist who prescribes it. Any 
misleading  advertising  in  this  area  (whether  it  concerns  an  authorised  trader  or  not)  will 
trigger  the  relevant  EU  or  national  rules  and  be  subject  to  the  respective  systems  of 
enforcement and sanctions. These will take precedence over the UCPD. 

Banned  commercial  practice  No  17  also  applies  to  products  or  services  such  as  cosmetics, 
aesthetic treatments, wellness products and similar. Based on the way they are marketed, 
such  products  and  services  are  intended  to  produce  certain  improvements  in  the  physical 
conditions  of  human  or  animal  bodies  but  their  marketing  is  not  necessarily  covered  by 
sector-specific EU legislation. 

As  regards  cosmetic  products,  Article  20(1)  of  Regulation  1223/2009  on  cosmetic 
products211 requires Member States to prohibit the wording, use of names, trademarks, images 
or other signs (figurative or otherwise) suggesting a characteristic the products in question do 
not  possess  in  the  labelling,  making  available  on  the  market  and  advertising  of  cosmetic 
products. 

A trader’s failure to produce the appropriate and relevant evidence on the physical effects a 
consumer can expect from a product’s use will fall under banned commercial practice No 17 
on  the  grounds  that  a  false  claim  has  been  made,  if  it  is  not  covered  by  sector-specific  EU 
legislation. 

In order to avoid the ban, traders must be able to substantiate any factual claims of this 
type with scientific evidence. The fact that the burden of proof rests on the trader reflects the 
principle,  more  broadly  formulated  in  Article  12  of  the  UCPD,  which  states  that  ‘Member 
States shall confer upon the courts or administrative authorities powers enabling them in the 
civil or administrative proceedings [...]: (a) to require the trader to furnish evidence as to the 
accuracy  of  factual  claims  in  relation  to  a  commercial  practice  if,  taking  into  account  the 
legitimate interest of the trader and any other party to  the proceedings, such a requirement 
appears appropriate on the basis of the circumstances of the particular case’. 

For example: 

  An  online  trader  advertised  a  number  of  products  on  its  website,  including 

clothes and cosmetics, as having various positive effects on health (e.g. reducing pain, 
improving  sleep  and  decreasing  wrinkles).  However,  it  could  not  substantiate  its 
claims  with  appropriate  evidence.  The  Competition  Council  of  the  Republic  of 
Lithuania  considered  this  to  be  an  example  of  the  misleading  commercial  practice 
banned under Annex I to the UCPD.212  

211 Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products, OJ L 342, 

22.12.2009, p. 59. 

212  2S-17, Lietuvos Respublikos konkurencijos taryba (Vilnius), 04.07.2011.  

85 

 
 
 
 
                                                            
4.4 

Use of the word ‘free’ — banned commercial practice No 20 

Point No 20 of ANNEX I 

‘Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to 
pay anything other than the unavoidable cost of responding to the commercial practice and 
collecting or paying for delivery of the item.’ 

This  ban  is  based  on  the  idea  that  consumers  expect  a  ‘free’  claim  to  be  exactly  that, 
meaning  they  receive  something  without  giving  money  in  exchange.  This  means  that  an 
offer can be described as free only if consumers pay no more than: 

a)  the  minimum,  unavoidable  cost  of  responding  to  the  commercial  practice  (e.g.  the 
current public postage rates, the cost of telephoning up to and including the standard 
national rate or the minimum, unavoidable cost of sending a text message); 

b)  the true/real cost of freight or delivery; 

c)  the cost, including incidental expenses, of any travel involved if consumers collect the 

offer. 

As a consequence, traders should not charge for packaging, handling or administration 
of  a  product  marketed  as  "free".  When  traders  make  ‘free’  offers,  they  should  also  state 
clearly in all material what the consumer’s liability is for any unavoidable costs, as referred to 
above. 

It  is  harder  to  determine  whether  the  commercial  practice  is  unfair  when  the  word  ‘free’  is 
used in combined offers, which are commercial offers involving more than one product or 
service. Combined offers are usually conditional purchase promotions or package offers. 

The  following  are  some  principles  which  national  authorities  could  take  into  account  when 
assessing combined offers. They are already largely reflected in some advertising regulatory 
codes: 

  Traders must not try to recover their costs by reducing the quality or composition 
or by inflating the price of any product that must be bought as a pre-condition for 
obtaining a separate, free item. 

  Traders  should  not  describe  an  individual  element  of  a  package  as  ‘free’  if  the 

cost of that element is included in the package price. 

For example: 

 

In  a  combined  offer  for  a  mobile  phone  with  a  subscription,  a  Swedish 

86 

 
  
 
 
 
 
telecom operator marketed the price as ‘0 kr’. However, once consumers accepted the 
offer, the monthly instalments for the subscription increased. A court agreed with the 
Consumer Ombudsman that this fell under point No 20 in Annex I to the UCPD.213  

 

In the case of an offer for a “free credit”, the Hungarian Competition Authority found 
that it falls under point No 20 in Annex I to the UCPD  if the consumer may have to 
sign a credit insurance contract with additional costs to get the loan granted. 

The  ban  does  not  prevent  traders  from  using  the  word  ‘free’  in  conditional  purchase 
promotions where customers are required to buy other items (i.e. ‘buy one get one free’-
type offers), provided that: 

i. 

ii. 

iii. 

it is made clear to consumers that they have to pay all costs; 

the quality or composition of the paid-for items has not been reduced; and 

the price of the paid-for items has not been inflated to recover the cost of supplying 
the free item. 

For example: 

  A trader launched a promotional campaign on the internet and in newspapers 

offering two free car tyres when buying two new ones. In reality, the price stated for 
the two tyres in the campaign was twice as high as the previously applied retail price. 
The  Competition  Council  of  the  Republic  of  Lithuania  ruled  that  this  conditional 
purchase promotion was prohibited under point No 20 of Annex I.214  

The key distinguishing feature of a conditional purchase promotion is that the item described 
as ‘free’ must be genuinely separate from and additional to the item(s) that the customer 
is required to pay for. 

Hence, in such conditional purchase promotions, traders must be able to show: 

i. 

ii. 

iii. 

that  the  free  item  is  genuinely  additional  to  the  item(s)  usually  sold  for  that 
price or that the free item is genuinely separable from the paid-for item(s); 

that they only supply the ‘free’ item with the paid-for item(s) if the consumer 
complies with the terms of the promotion; and 

that  consumers  are  aware  of  the  stand-alone  price  of  the  item(s)  they  are 
paying for and that that price remains the same with or without the free item.   

For example: 

  A ‘free wall-chart when you buy Thursday’s paper’ claim is legitimate if the 

paper is sold without a wall-chart on other days for the same price; 

213  Joint Judgments Dnr B 2/11 and B 3/11 by Marknadsdomstolen, 11 May 2012. 
214  2S-27, Lietuvos Respublikos konkurencijos taryba (Vilnius), 11 November 2010.  

87 

 
 
 
 
 
 
 
                                                            
  A  claim  of  ‘free  travel  insurance  for  customers  who  book  their  holiday  online’  is 
legitimate if customers who book the same journey by telephone are offered the same 
price but not offered free insurance; 

Point 20 of Annex I prohibits the use of the word ‘free’ to describe an individual element of a 
package offer if the cost of that element is included in the package price. A ‘package offer’ 
here means a pre-arranged combination of features offered for a single, inclusive price where 
customers cannot exercise genuine choice on how many elements of the package they receive 
for that price. 

For example: 

 

If a car is advertised with leather seats, air conditioning and a CD player for 
a standard price of € 10 000, that combination of features is a package. The consumer 
pays one all-inclusive price for the car as advertised. If any of the advertised features 
were to be removed, the quality and composition of the car the customer is paying € 
10 000 for would be diminished. In order to claim that the CD player is free and that 
the € 10 000 relates to the other elements, the trader needs to demonstrate either (a) 
that the requirements of a conditional purchase promotion are satisfied, or (b) that the 
CD  player  was  a  new  additional  feature  and  that  the  price  of  the  car  had  not 
increased (see below). 

However,  traders  sometimes  add  new  elements  to  existing  packages  without  increasing  the 
overall price of the package or reducing the quality or composition of the elements included. 
In those circumstances, consumers are likely to regard the element that has been added to the 
package as additional to the established package for a period after its introduction. However if 
the price of a package increases or its quality or composition is reduced after a new element is 
added, the new element may not be described as ‘free’. 

One-off  up-front  costs  incurred,  for  example,  to  buy  or  install  equipment,  do  not  negate 
claims that products or services supplied without subscription are ‘free’ within the meaning of 
No 20 of Annex I.  

For example, digital free-to-air television channels are available only to consumers who have 
the  necessary  digital  receiving  equipment;  similarly,  call  packages  are  available  only  to 
consumers who have a telephone line.  

Likewise,  connection  fees  payable  to  a  third  party  to  activate  an  internet  service  will  not 
negate  claims  that  the  internet  service  is  free,  provided  the  connection  fee  has  not  been 
inflated  to  recover  the  cost  of  supplying  the  free  internet  service.  Traders  must  always 
adequately inform consumers about the requirement for any of such up-front payments. 

Products presented as ‘free’ are especially common in the online sector. However, many such 
services are only accessible for consumers on the condition that they provide  personal data 

88 

 
 
 
 
 
 
 
such  as  their  identity  and  email  address.  This  is  an  area  where  there  is  interplay  between 
European data protection legislation and the UCPD. 

As noted in Section 1.4.9 on the interplay with EU data protection rules, there is an increasing 
awareness of the economic value of information related to consumers’ preferences, personal 
data  and  other  user-generated  content.  The  marketing  of  such  products  as  ‘free’  without 
telling consumers how their preferences, personal data and user-generated content are going 
to be used could in some circumstances be considered a misleading practice.   

For example: 

  An  internet  service  provider  in  Italy  was  prevented  from  claiming  in  an 

advertisement  that  the  services  it  offered  were  for  ‘free’,  because  in  exchange  for 
these  services  consumers  had to  agree to  a number  of  onerous conditions, involving 
tracking and receiving commercial communications. The Italian authorities concluded 
that  information  on  all  the  conditions  of  the  service  was  material  and  observed  that 
the contractual clauses for membership, which imposed onerous conditions to benefit 
from the offer, were decisive for the recipients when deciding whether the advertised 
service  was  actually  convenient  or  not.  The  fact  that  such  conditions  were  not 
mentioned  in  the  advertisement  was  likely  to  lead  consumers  into  error  and  unduly 
affect their economic behaviour.215 

  The Federation of German Consumer Organisations (VZBV), on the basis of point No 
20 of  ANNEX I  UCPD,  has been  seeking an injunction  against an internet company 
for  its  claim  that  its  service  is  ‘for  free’  or  ‘without  charge’,  because  the  company 
derives its revenues from analysing users’ private data and selling the information to 
third party traders in the form of advertising space216. 

The  application  of  the  UCPD  to  games  advertised  as  ‘free’  but  also  offering  in-app 
purchases is discussed more in detail in Section 5.2.4 on ‘App stores’.    

4.5 

Persistent marketing by a remote tool — banned commercial practice No 26 

Point No 26 of ANNEX I 

‘Making persistent and unwanted solicitations by telephone, fax, email or other remote media 
except in circumstances and to the extent justified under national law to enforce a contractual 
obligation.  This  is  without  prejudice  to  Article  10  of  Directive  97/7/EC  and  Directives 
95/46/EC and 2002/58/EC.’ 

This ban aims to protect consumers against pestering by distance marketing tools. Point 
No  26  of  Annex  I  does  not  prohibit  distance  marketing  per  se  but  rather  persistent  and 
unwanted solicitations. 

215  Decision PI2671 – Libero Infostrada  paraa. 6, 5th indent by the AGCM. It was taken in the year 2000 before the adoption of the UCPD 

and based on the national provisions implementing Directive 84/450/EEC on misleading advertising.  

216  Case Verbraucherzentrale Bundesverband/Facebook, Landgericht Berlin, Az. 16O341/15. 

89 

 
 
 
 
 
  
 
 
 
                                                            
For example: 

  An  insurance  adviser  searched  online  and  offline  newspapers  for  reports  of 

accidents  and  then  sent  standard  letters  to  the  victims,  offering  advice  on  and  help 
with  compensation  issues.  The  Austrian  Supreme  Court  ruled  that  sending  a  single 
letter to a person does not qualify as ‘persistent and unwanted solicitations’ within the 
meaning of point 26 of Annex I.217 

Specific rules on unsolicited communications using electronic communications networks (i.e. 
by  telephone  or  email)  are  laid  down  in  Article  13  of  the  e-Privacy  Directive  2002/58/EC. 
Automatic  calling  machines,  fax  machines  or  email  may  be  only  used  for  the  purposes  of 
direct  marketing  to  contact  users  who  have  given  their  prior  consent.  These  sector-specific 
provisions prevail over the UCPD, meaning that such solicitations do not have to be persistent 
and that Member States must penalise solicitations from the first call or email. 

There  are  no  similar  sector-specific  EU  rules  for  marketing  by  post  and  other  printed 
advertising. These are exhaustively regulated by the UCPD, and by point No 26 of the Annex 
in particular. Therefore, national provisions prohibiting all kinds of unaddressed printed 
advertising go beyond the fully harmonised provisions of the UCPD, unless consumers give 
prior consent (opt-in). 

Such a prohibition would be allowed only if it falls outside the scope of the Directive, i.e. it 
does not have the aim of protecting the economic interest of consumers.  

Some  Member  States  have  defended  such  prohibitions  on  different  grounds,  e.g.  protecting 
the environment (reducing paper wasted on marketing material). 

If for marketing purposes a controller uses personal data (e.g. the name and/or address of the 
recipient or other data relating to an identifiable person), this constitutes processing of such 
data under EU data protection law.  

The  safeguards  and  obligations  under  the  Data  Protection  Directive  (95/46/EC)  must  be 
complied with, including informing individuals that processing will be carried out before any 
marketing  taking  place  and  allowing  individuals  to  object  to  having  their  personal  data 
processed for this purpose.218 

4.6 

Direct exhortations to children — banned commercial practice No 28 

Point No 28 of ANNEX I 

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

217  4 Ob 174/09f, OGH (Oberster Gerichtshof), 19 January 2010.  
218  Articles 10, 11 and 14 of Directive 95/46/EC.  

90 

 
 
 
  
 
 
                                                            
This ban includes putting pressure on children to buy a product directly or to persuade adults 
to  buy  items  for  them  (‘pester  power’).  A  recurrent  claim  made  by  many  traders  about  this 
ban is that it can be difficult to distinguish marketing directed at children from marketing 
directed at other consumers. Similarly, it could sometimes be unclear whether a commercial 
practice includes a direct exhortation to children. 

Nevertheless,  the  check  to  determine  whether  a  commercial  practice  falls  under  point  28  of 
Annex  I  must  be  carried  out  on  a  case-by-case-basis.  A  national  enforcement  authority  or 
court is not bound by the trader’s own definition of the target group for the commercial 
practice in question, although that definition may be taken into account.            

For example: 

  An  online  commercial  practice  involving  a  gaming  community  in  which 

children dress virtual dolls invited children to ‘buy more’, ‘buy here’, ‘upgrade now’ 
and ‘upgrade to Superstar’. The Swedish Market Court banned such practices on the 
grounds that the statements were direct exhortations to children within the meaning 
of No 28 Annex I.219  

  A  concert  organiser  had  advertised  tickets  for  a  Justin  Bieber  concert  on  his 
Facebook  page  using  phrases  such  as  ‘Belibers  —  there  are  still  RIMI-cards 
available at many stores. Run, jump on your bike or get someone to drive you’ and 
‘Remember to also buy tickets for the Bieberexpress when you buy concert tickets at 
RIMI today’. The Norwegian Market Council found this to be in breach of point No 
28 of Annex I, taking the above decision by the Swedish Market Court in the ‘Stardoll 
case’ into account. 

  The  UK  Advertising  Standards  Authority  ruled  against  two  online  games  providing 
in-app  purchases  containing  direct  exhortations  to  children.  Participation  in  the 
game as such was free. However, certain activities required participation in a paid-
membership  system,  which  entitled  members  to  additional  benefits.  The  authority 
found  that  several  statements  promoting  membership  or  the  purchase  of  in-game 
currency were phrased as commands to the players. These were statements such as 
‘JOIN NOW’,220 ‘The Super Moshis need YOU’ and ‘Members are going to be super 
popular’, which the authority considered as putting pressure on children to make a 
purchase.221  

  The  Finnish  Consumer  Ombudsman  found  that  when  a  bank  addressed  direct 
marketing letter to children turning 10, this was an aggressive practice. In the letter, 
the children were welcomed to a branch office of the bank to obtain a personal Visa 
Electron card to mark their 10th birthday.222  

219  MD 2012:14, Marknadsdomstolen, 6 December 2012, Stardoll:  http://www.marknadsdomstolen.se/Filer/Avg%c3%b6randen/Dom2012-

14.pdf 

220  https://www.asa.org.uk/Rulings/Adjudications/2015/8/55-Pixels-Ltd/SHP_ADJ_305045.aspx#.VjnevP7luUk. 
221  https://www.asa.org.uk/Rulings/Adjudications/2015/8/Mind-Candy-Ltd/SHP_ADJ_305018.aspx#.VjnfC_7luUk. 
222  Reference to be included.  

91 

 
 
 
  
   
 
 
                                                            
Some  national  authorities  have  developed  criteria  to  guide  case-by-case  assessments  of 
whether commercial practices include direct exhortations to children. 

As  an  example,  the  ‘Principles  for  online  and  app-based  games’  published  by  the  UK 
Office  of  Fair  Trading  in  January  2014,223  contain  the  following  example  of  commercial 
practices that are ‘less likely or unlikely to comply" with the prohibition on direct exhortation 
to children: 

‘A game that is likely to appeal to children requires the consumer to ‘spend’ in-game 
currency,  which  may  be  either  earned  through  gameplay  or  bought  for  real  money. 
When  the  consumer  runs  out  of  that  in-game  currency,  he/she  is  prompted  —  or 
encouraged or incited through in-game statements or images — to, for example, ‘buy 
more’, visit the shop to ‘get more’ or ‘become a member’. 

These UK principles include the following criteria to determine whether games are likely to 
appeal to children: 

‘It may be reasonably foreseeable that a game is likely to appeal to children through 
its  content,  style  and/or  presentation.  Consideration  should  be  given  to  the  likely 
audience  before  designing  commercial  messages  communicated  to  consumers  and 
deciding  whether  a  direct  exhortation  is  to  be  included.  A  significant  determinative 
factor is whether children are known to play the game or if the game is marketed to 
children.  However,  other  factors  or  attributes  that  may  mean  a  game  is  likely  to 
appeal to children are set out in this indicative and non-exhaustive list: 

• 

inclusion of characters popular with or likely to appeal to children 

•  cartoon-like graphics 

•  bright colours 

• 

• 

• 

simplistic gameplay and/or language 

the  game  concerns  an  activity  that  is  likely  to  appeal  to  or  be  popular  with 
children 

the game is available to be downloaded, signed up to or purchased by anyone and 
is not age-restricted 

• 

the game is featured in a children’s section of an app store’ 

According to the Nordic Consumer Ombudsmen:224   

‘Traders must not directly exhort or invite children to buy or persuade their parents or 
other  adults  to  buy  the  traders’  products.  Whether  the  marketing  exhorts  or  invites 
children to buy must be assessed in each case. Such assessment must be made from the 

223  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/288360/oft1519.pdf. 
224 

http://www.consumerombudsman.dk/~/media/Consumerombudsman/dco/Guidelines/Position%20of%20the%20Nordic%20Consumer%
20Ombudsmen%20on%20social%20media%20marketing.pdf  

92 

 
                                                            
individual  child’s  perspective  by  taking  into  consideration  its  age,  development  and 
other factors rendering children particularly vulnerable. Importance will be attached, 
among others, to: 

•  How  clearly  the  exhortation  to  buy  has  been  phrased,  including  the  impression 
created. Marketing containing text such as: ‘go buy the book’ or ‘ask your mum to 
pick up the product in the nearest shop’ will be a direct exhortation to buy. 

•  How the marketing is directed at children. Has the marketing been sent through a 

medium targeting children directly and individually, for example? 

•  How easy it is to buy the product marketed. As an example, is it possible to click a 
link,  thereby  making  a  purchase?  Marketing  with  a  text  stating  ‘buy  here’  and 
linking to a page on which a purchase can be made will be a direct exhortation to 
buy.’ 

In  2013  and  2014,  European  national  consumer  protection  authorities,  acting  through  the 
Consumer Protection Cooperation (CPC) Network, carried out a joint enforcement action on 
online games that offer possibilities to make purchases while playing (in-app purchases) and 
that are likely to appeal to or to be played by children.225  

In their common position paper of July 2014, the CPC authorities considered that Article 5(3) 
and (5) and point Nr 28 Annex I to the UCPD apply to games that are likely to appeal to 
children, not only those solely or specifically targeted at children. A game or application, 
and the exhortation contained within it, may be considered as directed at children within the 
meaning of point Nr 28 of Annex I if the trader could reasonably be expected to foresee that it 
is likely to appeal to children. 

4.7 

Prizes — banned commercial practice No 31 

Point No 31 of ANNEX I 

‘Creating the false impression that the consumer has already won, will win, or will on doing a 
particular act win, a prize or other equivalent benefit, when in fact either: 

— there is no prize or other equivalent benefit, 

or 

— taking any action in relation to claiming the prize or other equivalent benefit is subject to 
the consumer paying money or incurring a cost.’ 

The  assessment  of  the  first  category  of  situations  (i.e.  no  prize)  is  fairly  straightforward.  In 
order  not  to  breach  the  ban,  traders  must  always  be  able  to  demonstrate  that  they 

225  http://ec.europa.eu/justice/newsroom/consumer-marketing/news/1401222_en.htm 

and 

http://europa.eu/rapid/press-release_IP-14-

847_en.htm 

93 

 
  
 
 
 
 
 
 
                                                            
awarded  the  prize/s  or  equivalent  benefit/s  in  the  exact  terms  stated  in  their 
announcement to the consumer. Failing this, the practice would fall under the ban.  

For example: 

 

 

In  the  Czech  Republic,  a  trader  created  the  false  impression  that  consumers 
could win a prize by stating that everyone who participated in a specific lottery would 
have  the  chance  to  win  a  laptop  computer.  In  reality,  no  such  computer  could  be 
won.226 

In  Spain,  a  trader  created  the  false  impression  that  a  consumer  had  won  a  prize  by 
stating  unequivocally  in  a  letter  to  the  consumer  that  he  had  won  a  prize  of  18.000 
euros,  when  in  fact  there  was  no  such  prize.  A  Spanish  court  clarified  that  this 
commercial practice was contrary to the national law transposing Annex I No 31 of the 
UCPD227.  

The  second  part  of  point  No  31  (i.e.  the  prize  or  benefit  is  subject  to  the  consumer  paying 
money  or  incurring  a  cost)  covers  dishonest  practices  where,  for  instance,  consumers  are 
informed  that  they  have  won  a  prize  but  have  to  call  a  premium  rate  line  to  claim  it,  or 
where  consumers  are  initially  informed  that  they  have  won  a  prize  but  then  learn  that  they 
must  order  another  good  or  service  to  receive  the  advertised  prize  or  the  equivalent 
benefit.  

The  Court  has  clarified  that  even  when  the  cost  imposed  on  the  consumer  for  claiming  the 
prize  (i.e.  requesting  information  on  the  nature  of  that  prize  or  taking  possession  of  it)  is 
minimal,  as  in  the  case  of  a  stamp,  compared  to  the  value  of  the  prize,  and  regardless  of 
whether  the  payment  of  such  costs  procures  any  benefits  to  the  trader,  such  practices  are 
prohibited by point No 31 of Annex I.228 

For example: 

  A  mail  order  company  sent  promotional  advertising  by  post  stating  that  the 

consumer ‘is guaranteed 100 % that he/she is one of the selected people to receive an 
electronic product. This product is free of charge!’ In fact, consumers had to respond 
within  two  days  and  pay  €  19.99  to  cover  ‘administration  and  transport  costs’.  The 
Netherlands  Authority  for  Consumers  and  Markets  found  that  giving  consumers  the 
false impression that they have already won a prize while requiring them to pay a fee 
within two days of receiving notice of the promotional action fell under point No 31 of 
Annex I (and also other blacklisted actions such as No 20 owing to the use of the word 
‘free’).229 

226  Prague City Court, 29 October 2014, Golden Gate Marketing v Czech Trade Inspection Authority. 
227  Audiencia Provicional de Barcelona, 26 June 2014, 323/2014. 
228  Case C-428/11, Purely Creative e.a. v Office of Fair Trading, Judgment of 18 October 2012. 
229  CA/NB/544/10, Consumentenautoriteit, 21 September 2010, Garant-o-Matic B.V.  

94 

 
 
 
 
 
 
 
                                                            
5. 

5.1 

APPLICATION OF THE UCPD TO SPECIFIC SECTORS 

Environmental claims 

The expressions ‘environmental claims’ and ‘green claims’ refer to the practice of suggesting 
or  otherwise  creating  the  impression  (in  a  commercial  communication,  marketing  or 
advertising) that a good or a service has a positive or no  impact on the environment or is 
less damaging to the environment than competing goods or services. This may be due to its 
composition, how it has been  manufactured or produced, how it can be disposed of and the 
reduction  in  energy  or  pollution  expected  from  its  use.  When  such  claims  are  not  true  or 
cannot be verified, this practice is often called ‘greenwashing’.  

‘Greenwashing’  can  relate  to  all  forms  of  business-to-consumer  commercial  practices 
concerning the environmental attributes of goods or services. According to the circumstances, 
this  can  include  all  types  of  statements,  information,  symbols,  logos,  graphics  and  brand 
names,  and  their  interplay  with  colours,  on  packaging,  labelling,  advertising,  in  all  media 
(including websites) and made by any organisation, if it qualifies as a "trader" and engages in 
commercial practices towards consumers.  

The UCPD does not provide specific rules on environmental claims. However, it provides 
a legal basis to ensure that traders do not present environmental claims in ways that are unfair 
to consumers. It does not discourage the use of ‘green claims’. On the contrary, the UCPD can 
help traders investing in the environmental performance of their products by enabling them to 
communicate  these  efforts  to  consumers  transparently  and  by  preventing  competitors  from 
presenting misleading environmental claims. 

5.1.1 

Interplay with other EU legislation on environmental claims 

As pointed out in Section 1.4, Article 3(4) and Recital 10 are key features of the UCPD. They 
set  out  the  principle  that  the  UCPD  is  designed  to  complement  other  EU  legislation  as  a 
‘safety  net’  ensuring  that  a  high  common  level  of  consumer  protection  against  unfair 
commercial practices is maintained in all sectors. 

Examples of specific EU legislation concerning environmental claims: 

  Directive 2012/27/EU on energy efficiency;230  

  Directive 2010/31/EU on the energy performance of buildings;231 

  Regulation (EC) No 1222/2009 on the labelling of tyres with respect to fuel efficiency 

230  Notably, Article 9(2) of this Directive stipulates that, where consumers have ‘smart meters’ for natural gas and/or electricity, ‘metering 
systems shall provide to final customers information on the actual time of use’ and Article 10(1) stipulates that, ‘where final customers 
do not have smart meters’, billing information shall be ‘accurate and based on actual consumption’. 

231  According to Article 10 of this Directive, energy performance certificates shall make it possible for owners and tenants to compare and 
assess the energy performance of buildings. The energy performance certificate shall provide, e.g., ‘an indication as to where the owner 
or tenant can receive more detailed information (…) of the recommendations made in the energy performance certificate’. According to 
Article 12(2) and (3), the energy performance certificate must be ‘showed to the prospective new tenant or buyer and handed over to the 
buyer or new tenant’  when the building is constructed, sold or rented out, and when this is done before a building is constructed, the 
seller  must  ‘provide  an  assessment  of  its  future  energy  performance’.  Notably,  according  to  Article  12(4),  when  buildings  having  an 
energy performance certificate are offered for sale or for rent, the energy performance indicator of the energy performance certificate of 
the building must be ‘stated in the advertisements in commercial media’.    

95 

 
 
 
 
                                                            
and other essential parameters;232 

  Directive 2009/72/EC on common rules for the internal market in electricity;233 

  Directive  2009/125/EC  establishing  a  framework  for  the  setting  of  ecodesign 

requirements for energy-related products;234     

  Regulation 834/2007 on organic production and labelling of organic products.235 

Here  are  a  few  examples  of  the  interplay  between  the  UCPD  and  specific  EU  legislation 
concerning environmental claims: 

For example: 

  Under  the  framework  established  by  the  Directive  2010/30/EU  on  Energy 

Labelling,236  requirements  have,  amongst  others,  been  established  for  the  energy 
labelling  of  electric  household  refrigerating  appliances.237  That  Directive  prohibits 
additional labels and symbols that in themselves may mislead consumers with regard 
to  energy  consumption.238  However,  it  does  not  include  specific  rules  on  what  is 
considered misleading. On this point, the UCPD can come into play. A German court 
considered  the  use  of  the  slogan  ‘very  energy  saving’  for  a  refrigerator/freezer  in 
energy efficiency class ‘A’ a misleading commercial practice under the UCPD. 308 out 
of 543 appliances on the German market at the time belonged to class ‘A+’ and 17 % 
of all available appliances belonged even to energy efficiency class ‘A++’.239  

  Nokian Tyres had used the company’s own tyre label for marketing tyres. The label is 
intended  to  depict  a  tyre's  driving  capabilities  in  winter  conditions.  The  company’s 
own label is very similar to the official EU tyre label240, which has been compulsory as 
of the November 2012. Nokian Tyres has marketed its tyres using a proprietary label, 
which may have given consumers the misleading impression that the tyres met with the 
testing  and  classification  demands  required  by  the  EU  tyre  label.  Additionally,  the 
Nokian  Tyres  tyre  label  did  not  give  a  reliable  picture  of  the  tyres’  properties,  in 

232  This  Regulation  establishes  a  framework  for  the  provision  of  harmonised  information  on  tyre  parameters  through  labelling,  allowing 

end-users to make an informed choice when purchasing tyres. 

233  According  to  Article  3(5)(b)  of  this  Directive,  consumers  shall  be  provided  with  all  relevant  data  for  their  electricity  consumption. 
According to Article 3(9)(a) and (b), electricity suppliers shall specify ‘the contribution of each energy source to the overall fuel mix of 
the supplier (…)’ and ‘the reference to existing reference sources (…) where information on the environmental impact (…) is publicly 
available’. Annex I specifies which consumer protection purposes the provisions of Article 3 are intended to ensure.  

234  On the basis of this framework Directive, minimum requirements are established via product specific implementing measures, e.g. for 
light  bulbs  and  household  appliances.  According  to  Article  14  of  this  Directive,  in  accordance  with  the  applicable  implementing 
measure, manufacturers shall ensure that consumers are provided with ‘information on the role that they can play in the sustainable use 
of the product’ and ‘when required by the implementing measures, the ecological profile of the product and the benefits of eco-design’.  
235  Articles 23 and 24 of this Regulation provide rules on the use of terms referring to organic production. Article 25 provides  rules on the 

use of organic production logos.  

236  Notably,  under  Article  3(b)  of  this  Directive,  the  display  of  labels,  marks,  symbols  or  inscriptions  which  do  not  comply  with  the 
requirements  of  the  Directive  is  prohibited,  if  it  is  likely  to  mislead  or  confuse  end-users  with  respect  to  the  consumption  of  energy. 
Under Article 4(a), information relating to the consumption of electric energy, other forms of energy and, where relevant, other essential 
resources during use shall be brought to the attention of end-users by means of a fiche and a label related to products offered for sale, 
hire, hire-purchase or displayed to end-users by any means of distance selling, including the Internet.  

237  Commission  Delegated  Regulation  (EU)  No  1060/2010  supplementing  Directive  2010/30/EU  with  regard  to  energy  labelling  of 

household refrigerating appliances.   

238  Cf. Article 3(1)(b) of Directive 2010/30/EU. 
239  Report from the Multi-Stakeholder Dialogue on Environmental Claims, March 2013, page 18. 
240  Regulation (EC) No 1222/2009 on the labelling of tyres with respect to fuel efficiency and other essential parameters 

96 

 
 
 
 
 
 
 
 
                                                            
comparison to the tyres of other manufacturers that carried the EU label. The Market 
Court of Finland prohibited Nokian Tyres from using the company’s own tyre labels in 
marketing that targets consumers, unless the company clearly distinguished this label 
from the EU's tyre label241. 

 

In  2011,  the  Romanian  National  Authority  for  Consumers’  Protection  carried  out  an 
enforcement  action  on  environmental  claims  used  in  cleaning  services  for  clothes, 
carpets  and  cars.  It  initially  considered  basing  its  action  on  the  requirements  of  the 
Ecolabel  Regulation.242  However,  as  no  EU  Ecolabel  criteria  had  at  that  time  been 
developed  for  cleaning  services243,  the  national  authority  treated  the  matter  as  a 
misleading commercial practice and applied the UCPD instead. 

5.1.2  Main principles: Articles 6, 7 and 12 of the UCPD applied to environmental claims 

The  application  of  the  UCPD  to  environmental  claims  can  be  summarised  in  two  main 
principles: 

I.  Based on the general clauses of the UCPD, particularly Articles 6 and 7, traders must 
present  their  green  claims  in  a  clear,  specific,  accurate  and  unambiguous 
manner, to ensure that consumers are not mislead.   

II.  Based on Article 12 of the UCPD, traders must have the evidence to support their 
claims  and  be  ready  to  provide  it  to  competent  enforcement  authorities  in  an 
understandable way if the claim is challenged. 

These principles are also reflected in several national guidance documents on environmental 
claims,  notably  the  Danish  Guidance  on  the  use  of  environmental  and  other  claims  in 
marketing,244  the  UK  Green  Claims  Guidance245  and  the  French  Practical  Guide  to 
Environmental Claims for traders and consumers.246  

Compliance  Criteria  on  Environmental  Claims  –  Multi-stakeholder  advice  to 
support the implementation of the Unfair Commerical Practices Directive  

A  multi-stakeholder  group  on  environmental  claims,  coordinated  by  the  European 
Commission247  and    composed  of  representatives  of  national  authorities,  European 
business  organisations,  consumer  associations  and  environmental  NGOs,  has 
identified different challenges in this area, made recommendations and provided input 
to  an  EU-wide  ‘Consumer  Market  Study  on  Environmental  Claims  for  Non-Food 

241  MAO:185/13 
242  Regulation (EC) No 66/2010 on the EU Ecolabel. Under Article 10(1), false or misleading advertising or use of any label or logo which 

leads to confusion with the EU Ecolabel is prohibited.  

243  Criteria for cleaning services are currently under development. See http://susproc.jrc.ec.europa.eu/cleaning%20services/index.html  
244  By  the  Danish  Consumer  Ombudsman;  http://www.consumerombudsman.dk/Regulatory-framework/dcoguides/Environmental-and-

ethical-marketing. 

245  By 

the 

Department 

for 

Environment, 

Food 

and 

Rural 

Affairs; 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69301/pb13453-green-claims-guidance.pdf. 

246  By  the  Ministry  for  Ecology,  Sustainable  Development,  Transport  and  Housing  and  the  Ministry  for  Commerce,  Trades,  Small  and 
Affairs: 

Tourism 
Medium-sized 
http://www.economie.gouv.fr/files/files/directions_services/cnc/docs/the_practical_guide_to_environmental_claims_2012.pdf. 

Enterprises, 

Consumer 

and 

247  http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3325&news=1 

97 

 
 
 
 
 
                                                            
Products’.248  Moreover,  following  the  findings  of  this  study,  the  multi-stakeholder 
group  developed  multi-stakeholder  advice,  ‘Compliance  Criteria  on  Environmental 
Claims’,  which  reflects  its  common  understanding  on  the  application  of  the  Unfair 
Commercial Practices Directive in this area. This is intended to support traders and 
enforcement  authorities  when  applying  the  UCPD  as  regards  environmental  claims. 
This  advice  is  not  legally  binding,  but  has  fed  into  the  revision  of  this  updated 
guidance document as helpful advice to stakeholders.249 It is available at: 

 http://ec.europa.eu/consumers/consumer_rights/unfair-trade/unfair-practices. 

Other useful criteria and examples can be found in the Commission’s guidelines published in 
2000 for making and assessing environmental claims.250 The guidelines, which are consistent 
with the international standard ISO 14021-1999, contain references to environmental claims 
which should be deemed misleading. 

5.1.3 

Application of Article 6 of the UCPD to environmental claims 

Article 6 of the UCPD implies that consumers must be able to trust environmental claims 
put  forward  by  traders.  Consequently,  in  order  not  to  be  misleading,  environmental  claims 
should be presented in a clear specific, unambiguous and accurate manner.   

An environmental claim can be misleading if it ‘contains false information and is therefore 
untruthful’ in relation to one of the elements listed in Article 6(1)(a) to (g). 

For example: 

  Using  the  term  ‘biodegradable’  for  a  product  which  is  not  actually 

biodegradable or for which no tests have been carried out; 

  Presenting  small  electrical  appliances  such  as  irons,  vacuum  cleaners,  coffee 
machines,  as  ‘environmentally  friendly’  (‘eco’),  although  tests  show  that  they 
frequently do not perform better than similar products;251  

  Presenting  car  tyres  as  ‘eco  tyres’  and  promoting  their  environmental  performance 

and impact on fuel consumption, although tests show mixed results.252 

  Presenting a product as being made of "eco-leather", when actually it is not made of 
animal  origin  material,  but  rather  of  other  comparable  materials  for  which  no  tests 

248  http://ec.europa.eu/consumers/consumer_evidence/market_studies/environmental_claims/index_en.htm 
249  The multi-stakeholder advice was drafted as a follow-up to a 2013 report of the multi-stakeholder group and a consumer market study on 
environmental claims for non-food products published in 2015. The 2013 report of the multi-stakeholder group on environmental claims 
identified 
see 
http://ec.europa.eu/consumers/archive/events/ecs_2013/docs/environmental-claims-report-ecs-2013_en.pdf  
The  Consumer  Market  Study  on  Environmental  Claims  for  non-food  products  examined  the  presence  of  environmental  claims  in 
different markets, aspects of consumer understanding and behaviour, the level of compliance with EU legal requirements and different 
is  available  at 
enforcement  and 
http://ec.europa.eu/consumers/consumer_evidence/market_studies/environmental_claims/index_en.htm  

selection  of  EU  and  non-EU  countries. 

recommendations 

self-regulatory 

instruments 

challenges, 

practices 

forward 

in  a 

range 

best 

and 

put 

of 

It 

– 

a 

250  Guidelines  for  making  and  assessing  environmental  claims,  December  2000,  European  Commission  –  ECA  SA,  Dr  Juan  R  Palerm; 

http://ec.europa.eu/consumers/archive/cons_safe/news/green/guidelines_en.pdf. 

251  See  p.  12  of  the  Report  of  the  Multi-stakeholder  Dialogue  on  Environmental  Claims,  cf.    Greenwash  claims  investigated,  Which?, 

August 2012 . 

252  See  p.  12  of  the Report of  the  Multi-stakeholder Dialogue  on  Environmental  Claims,  cf.  Institut  national  de  la  Consommation  (2012, 

November). Les pneus verts tiennent ils leurs promesses? 60 millions de consommateurs, edition n °476, p. 40.  

98 

 
 
 
 
 
 
 
                                                            
have been carried out demonstrating its environmental performance. 

An  environmental  claim  can  also  be  misleading  if  it  ‘deceives  or  is  likely  to  deceive  the 
average consumer, even if the information is factually correct’ in one of the items referred 
to in Article 6(1)(a) to (g). 

For example: 

  According  to  the  ‘Compliance  Criteria’  developed  by  the  multi-stakeholder 

group on environmental claims, the wording, imagery and overall product presentation 
(i.e. layout, choice of colours, images, pictures, sounds, symbols or labels), should be a 
truthful  and  accurate  representation  of  the  scale  of  the  environmental  benefit,  and 
should not overstate the benefit achieved.253  

Environmental claims can be misleading if they are based on vague and general statements 
of  environmental  benefits  such  as  ‘environmentally  friendly’,  ‘green’,  ‘nature’s  friend’, 
‘ecological’,  ‘sustainable’,  ‘environmentally  correct’,  ‘climate  friendly’,    or  ‘gentle  on  the 
environment’.  Such  claims  could  fall  under  Article  6(1)(a)  and  6(1)(b)  UCPD  if  they  are 
likely to deceive the average consumer and to  cause him to take a transactional decision he 
would not have taken otherwise. 

Vague  and  general  claims  could  be  difficult,  if  not  impossible,  to  substantiate.  At  the  same 
time, they could convey the impression to consumers that a product or an activity of a trader 
has no negative impact or only a positive impact on the environment. Some action has been 
taken on the national level against unsubstantiated vague and general environmental claims.  

For example: 

  An  advertisement  stated  ‘Bamboo  V’s  [sic]  Organic  Cotton.100 %  eco-

friendly. Find out why it’s better than cotton and good for you’. A complainant argued 
that  the  claims  that  the  products  were  made  from  bamboo  and  ‘100 %  eco-friendly’ 

253  The  non-legally  binding  advice  of  the  multi-stakeholder  group  is  available  at:  http://ec.europa.eu/consumers/consumer_rights/unfair-

trade/unfair-practices  

99 

 
 
 
 
 
  
 
 
                                                            
were misleading  and questioned whether they could  be substantiated. The complaint 
was  upheld  by  the  UK  Advertising  Standards  Authority  (ASA),  which  noted  that  the 
trader  had  provided  copies  of  two  scientific  articles  they  believed  substantiated  the 
claims. The ASA noted that the articles described the manufacture of bamboo from its 
raw  state  to  its  use  in  clothing  but  did  not  provide  sufficient  evidence  that 
manufacturing bamboo clothing had little or no impact on the environment or that the 
clothing sold by the trader was actually made from bamboo.254 

  Several  claims  that  electric  cars  are  ‘ecological’  have  been  found  misleading  by  a 
French self-regulator. This was the case for a misleading advertisement promoting the 
eco-friendly  character  of  electric cars  for  hire, without  providing  information  to  put 
the  claim  into  perspective.  The  self-regulator  found  that,  since  it  could  not  be 
established that the electricity needed to recharge the cars would entirely derive from 
renewable  energy  sources,  using  the  service  would  have  a  negative  impact  on  the 
environment.255  

When  assessing  an  environmental  claim,  the  product’s  main  environmental  impacts  over 
its lifecycle, including its supply chain are relevant. An environmental claim should relate to 
aspects that are significant in terms of the product’s environmental impact256. Moreover, 
claims  should  be  clear  and  unambiguous  regarding  which  aspect  of  the  product  or  its  life 
cycle they refer to.257 If a trader makes an environmental claim by  highlighting just one of 
several impacts the product has on the environment, the claim could be misleading within the 
meaning of Article 6 of the UCPD.     

For example: 

  According  to  the  Compliance  Criteria’  developed  by  the  multi-stakeholder 

group  on  environmental  claims,  the  benefit  claimed  should  not  result  in  an  undue 
transfer  of  impacts,  i.e.  the  creation  or  increase  of  other  negative  environmental 
impacts at other stages of the product’s life cycle should be avoided, unless the total 
net environmental benefit has been significantly improved, for example according to a 
life-cycle assessment. 

  A manufacturer claims that its product is low in water use. However, at the same time 
the product consumes more energy than a comparable product of the same category, 
which increases the product’s overall environmental impact significantly. Under such 
circumstances,  the  claim  could  be  misleading  either  in  relation  to  the  nature  of  the 
product (Article 6(1)(a)) or its main characteristics (Article 6(1)(b) UCPD).   

254  ASA  Adjudication  on  Bamboo  Textiles  Ltd  15  December  2010.  https://www.asa.org.uk/Rulings/Adjudications/2010/12/Bamboo-

Textiles. Ltd/TF_ADJ_49509.aspx#.VZ1RiP774ps . 
255  Jury de déontologie publicitaire (JDP), 26 June 2014. 
256  If traders do not know the most significant environmental aspects of a product, they could perform a life cycle assessment (LCA) taking 
into  account  the  Commission  Recommendation  on  the  use  of  common  methods  to  measure  and  communicate  the  life  cycle 
environmental performance of products and organisations (2013/179/EU) and the pilot phase of the Product Environmental Footprint and 
the Organisation Environmental Footprint in 2013-2016. See http://ec.europa.eu/environment/eussd/smgp/ 
environmental 

compliance 

paragraph 

257  See 

claims, 

group 

2.1: 

the 

on 

of 

also 

criteria 
http://ec.europa.eu/consumers/consumer_rights/unfair-trade/unfair-practices  

the  multi-stakeholder 

100 

 
 
 
 
 
 
     
  
                                                            
Codes of conduct may include commitments in relation to environmental protection or "green 
behaviour".  If  a  trader  that  has  undertaken  to  be  bound  by  such  a  code  breaches  it  he  may 
perform a misleading action. This situation is covered by Article 6(2)(b). 

For example: 

  A  trader  has  subscribed  to  a  binding  code  of  practice  that  promotes 

sustainable  use  of  wood  and  displays  the  code’s  logo  on  its  website.  The  code  of 
practice  contains  a  commitment  that  its  members  will  not  use  hardwood  from 
unsustainably  managed forests. However, it is  found that the products advertised on 
the website contain wood from exactly such a forest.258 

The average consumer would expect code signatories to sell products which comply with that 
code.  National  enforcement  authorities  may  then  assess  whether  the  average  consumer  is 
likely to take his or her purchase decision on this basis. 

Certain misleading commercial practices in relation to codes of conduct are considered unfair 
per se under Annex I to the UCPD. These practices are treated in Section 5.1.6 – ‘Application 
of Annex I to environmental claims’.   

In their ‘Compliance Criteria’, the multi-stakeholder group on environmental claims consider 
that:  

‘If a trader or industry chooses to use own labelling schemes, symbols or certificates 
for marketing purposes, these labels must only be applied to the products/services or 
traders which meet the criteria set to qualify for use. The criteria should demonstrate 
clear environmental benefits compared with competing products or traders and should 
be  easily  publicly  accessible.  Otherwise,  the  labelling  is  likely  to  be  misleading. 
Moreover,  traders  should  consider  third  party  verification  to  ensure  the  credibility 
and relevance of the label. The meaning or significance of the label must also be made 
clear to the consumer. Finally, such labels must not be capable of being confused with 
other  labels,  including,  for  example,  labels  of  publicly  run  labelling  schemes  or 
schemes of competitors.’  

5.1.4 

Application of Article 7 of the UCPD to environmental claims 

Article 7 UCPD lists specific elements that are relevant when assessing whether a commercial 
practice involves a misleading omission. 

Green claims can be misleading if based on vague and general statements of environmental 
benefits.  Such  claims  could  be  less  likely  to  be  misleading  under  Article  7  if  they  are 
supplemented  by  prominent  specifications  or  explanatory  statements  on  the  product’s 
environmental impact, for example by limiting the claim to specific environmental benefits.  

258  From the Guidance on the UK Regulation (May 2008) implementing the Unfair Commercial Practices Directive – Consumer Protection 

from Unfair Trading – Office of Fair Trading/Department for Business Enterprise and Regulatory Reform (2008). 

101 

 
 
 
 
                                                            
If traders provide such supplementary information, they could ensure that they do not act in 
breach  of  Article  7(4)(a)  (in  the  case  of  an  invitation  to  purchase)  by  hiding  or  providing 
material  information  related  to  the  ‘main  characteristics  of  the  product’  in  ‘an  unclear, 
unintelligible, ambiguous or untimely manner’.  

For example: 

  A  claim  in  an  advertisement,  such  as  ‘Eco-friendly:  made  with  recycled 

materials,’ could be less likely to be misleading if, for example:  
(1) the statement ‘made with recycled materials’ is clear and prominent;    
(2)  the  trader  can  substantiate  that  the  entire  product,  excluding  minor,  incidental 
components, is made from recycled material;  
(3)  making 
environmentally beneficial overall;    
(4) the advertisement’s context does not imply other misleading claims. 

the  product  with  recycled  materials  makes 

the  product  more 

In their ‘Compliance Criteria’, the multi-stakeholder group on environmental claims considers 
that: 

‘Some  products  may  be  subject  to  detailed  and  ambitious  rules  and  achieve  such  an 
excellent  environmental  performance  that  the  use  of  a  general  benefit  claim  (presented 
without further qualifications) may be justified.  

o  This could be the case if a product is covered by a license to use the ecolabel of a 
publicly  run  ecolabel  scheme  (such  as  the  Nordic  Ecolabel  ‘the  Swan’,  the 
German  'Blue  Angel'  or  the  European  Union  Ecolabel  ‘the  Flower’)  or  other 
robust and reputable labelling schemes subject to third party verification. 259 

o  This could also be the case if the life cycle assessment studies of the product have 
proven  its  excellent  environmental  performance.  These  studies  should  be  made 
according to recognised or generally accepted methods applicable to the relevant 
product  type  and  should  be  third-party  verified.260  If  such  methods  have  not  yet 
been  developed  in  the  relevant  field,  traders  should  refrain  from  using  general 
benefit claims (…). 

For  such  products,  traders  should  nevertheless  ensure  transparency  concerning  the 
relevant environmental aspects, and make sure that such information is easily available to 
consumers, including by displaying the relevant logo.’ 

259  For example, "ISO-Type I" labels according to the definition given by the International Organisation for Standardisation: ISO (standard 
14024:1999)  Type  I:  a  voluntary,  multiple-criteria  based,  third  party  program  that  awards  a  license  that  authorises  the  use  of 
environmental labels on products indicating overall environmental preferability of a product within a particular product category based 
on life cycle considerations.  

260  A pilot phase on Product Environmental Footprint and Organisation Environmental Footprint is ongoing between 2013  – 2016. In case 
the claim for environmental excellence requires a comparison to an "average" competing product or a specific product of competitors, 
the study could follow either: 
-  an  existing  Product  Environmental  Footprint  Category  Rule  (PEFCR)  that  allows  comparisons  between  products  (through 
benchmarking and performance classes), or 
- the rules established in ISO 14040 series regarding comparative assertions. 

102 

 
 
 
 
 
 
 
                                                            
Similarly, an environmental claim could be misleading under Article 7(2) if it is presented in 
an unclear, unintelligible or unclear manner. On the basis of a case-by-case assessment, this 
could be the case if the scope and boundaries of the claim are not made clear. 

For example: 

 

It is not clear whether the claim covers the whole product or only one of its 
components, or the company’s overall environmental performance or only certain of 
its activities or which environmental impact or process the claim addresses.   

When  making  an  environmental  claim,  the  product’s  main  environmental  impacts  are 
relevant.  The  UK  Department  for  Environment,  Food  and  Rural  Affairs  ‘Green  Claims 
Guidance’261 provides the following examples:  

261  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69301/pb13453-green-claims-guidance.pdf, p. 12. 

103 

 
 
 
 
 
 
                                                            
5.1.5 

Application of Article 12 of the UCPD to environmental claims 

Article 12: 

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

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

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

Article 12 of the UCPD clarifies that any claim (including  environmental claims) should be 
based on evidence which can be verified by the relevant competent authorities. 

Traders  must  be  able  to  substantiate  environmental  claims  with  appropriate  evidence. 
Consequently,  claims  should  be  based  on  robust,  independent,  verifiable  and  generally 
recognised evidence which takes into account updated scientific findings and methods. 

The fact that the burden of proof rests on the trader reflects the principle in Article 12(a) of 
the UCPD that enforcement authorities should have the power ‘to require the trader to furnish 
evidence as to the accuracy of factual claims in relation to a commercial practice’. 

For example: 

  A  mineral  water  company  presented  its  products  with  the  claim  ‘Zero 

Impact’, stating that the manufacture and sale of the bottles of water had no impact 
whatsoever on the environment. However, the company could not demonstrate that it 
was involved in specific activities reducing the environmental impact of its products, 
other  than  participating  in  a  project  to  compensate  environmental  damage.  On  this 
basis,  the  Italian  Competition  Authority  (AGCM)  concluded  that  the  ‘Zero  Impact’ 
campaign  constituted  an  unfair  commercial  practice  capable  of 
influencing 
consumers’ transactional decisions.262 

  An advertisement stated ‘This is a revolutionary new paint stripper that is safer to its 
user  and  the  environment’.  The  trader  believed  that  the  extremely  low  level  of  VOC 
content  in  its  product  meant  that  it  was  safe  for  the  environment.  However,  the  UK 
Advertising  Standards  Authority  (ASA)  considered  that  the  claim  needed  to  be 
supported by a high  level of  substantiation.  As the ASA had not  seen such evidence, 

262  Decision by the Italian Competition Authority, 8 February 2012, ref. PS7235. 

104 

 
  
 
 
 
 
 
 
 
 
                                                            
they concluded that the claim was misleading.263 

In  order  to  ensure  that  environmental  claims  are  substantiated,  traders  should  either  have 
the evidence necessary to support their claims from the time the claims are put into use 
or be certain that it can be obtained and presented upon request. 

A  Memorandum  by  the  Danish  Consumer  Ombudsman  laying  down  documentation 
requirements applicable to Section 3(3) of the Danish Marketing Practices Act reads:  

‘A  trader  must  be  able  to  substantiate  factual  statements  made  in  marketing 
communications  by  documentation. However, the time when the documentation must 
be available does not explicitly follow from the provision.  

(…) 

The requirement of section 3(3) of the Marketing Practices Act is: ‘must be capable of 
being  substantiated  by  documentation’.  The  wording  thus  does  not  expressly 
determine  when  the  documentation  substantiating  the  factual  statements  must  be 
available.  Neither  does  this  appear  explicitly  from  the  travaux  préparatoires  of  the 
Marketing  Practices  Act  or  from  the  Directives  on  Misleading  and  Comparative 
Advertising  or  the  Unfair  Commercial  Practices  Directive,  to  which  the  travaux 
préparatoires  of  the  Marketing  Practices  Act  referred.  Nor  is  the  Consumer 
Ombudsman aware of any case-law determining whether the documentation must be 
available at the time of marketing. However, in the Consumer Ombudsman’s opinion, 
the wording implies a requirement of certainty that the claims made in the marketing 
communication are capable of substantiation by documentation.  

Moreover,  the  provision  must  be  interpreted  in  the  light  of  Article  12  of  the  Unfair 
Commercial Practices Directive. In the Consumer Ombudsman’s opinion, the purpose 
of the documentation requirement has to be that a trader must be certain that factual 
statements  are  true  at  the  time  of  marketing  so  as  not  to  mislead  consumers.  This 
means that the trader must either have the documentation ready when the marketing 
communication  is  published  or  be  certain  that  it  can  be  presented  upon  request. 
Otherwise, there is a substantial risk that the trader will market his product by means 
of false claims. 

In  this  light,  and  as  also  reflected  in  Article  8  of  the  Consolidated  ICC  Code  of 
Advertising  and  Marketing  Communication  Practice  (2011),  it  must  be  considered 
good marketing practice if a trader is in possession of the documentation at the time 
of marketing or is certain that it can be obtained and presented.’ 

263  ASA Adjudication on Eco Solutions 31 August 2011: https://www.asa.org.uk/Rulings/Adjudications/2011/8/Eco-

Solutions/SHP_ADJ_156247.aspx#.VZ1Rw_774ps. 

105 

 
 
 
 
 
 
 
                                                            
Although  a  claim  may  be  correct  and  relevant  to  a  product  when  the  claim  is  first  made,  it 
could  become  less  meaningful  with  time.  In  order  to  ensure  that  they  are  in  a  position  to 
provide  necessary  documentation  to  national  authorities  in  line  with  Article  12  of  the 
Directive, traders should make sure that documentation for claims is up to date for as long 
as the claims remain in use in marketing.  

In their ‘Compliance Criteria’, the multi-stakeholder group on environmental claims considers 
that: 

‘If  a  trader  uses  environmental  statements  in  its  company  name,  product  name  etc., 
and the name is  used for  marketing purposes, such  marketing is subject to the same 
documentation  requirements  as  those  which  apply  to  other  environmental  claims  in 
marketing  communications,  unless  the  company  can  prove  that  this  name  has  no 
environmental connotation or existed already before environmental issues were taken 
up on the political/business agenda. However, in order to be contrary to the UCPD, a 
name  used  in  marketing  will  need  to  mislead  the  average  consumer  and  be  likely to 
cause him to take a transactional decision he/she would not have taken otherwise.’     

For example: 

  The  Swedish  Market  Court  has  addressed  the  marketing  of  an  oil  product 

called Hydro Miljö Plus (Hydro Environment Plus). The Market Court stated that the 
terms “environmental” together with “plus” in the product name gave the impression 
that  the  product  had  certain  environmental  advantages,  even  though  fuel  oil  always 
causes damage to the environment. In this respect, the Swedish Market Court judged 
that the term “Environment” could not be used in the product name.264 

In their ‘Compliance Criteria’, the multi-stakeholder group on environmental claims considers 
that: 

'Evidence should be clear and robust, and claims should be measured using the most 
appropriate methods. Independent third party testing should be made available for the 
competent  bodies  if  the  claim  is  challenged.  If  expert  studies  give  rise  to  significant 
disagreement  or  doubt  over  environmental  impacts,  the  trader  should  refrain  from 
marketing the message altogether. 

The content and scope of the documentation will depend on the specific content of the 
statement.  The  complexity  of  the  product  or  activity  will  be  of  relevance  in  this 
respect. 

Claims should be reviewed and updated regularly to ensure that they remain relevant. 
Claims  should  be  reassessed  and  updated  as  necessary,  in  view  of  technological 

264  The Swedish Market Court, 1990:20 Norsk Hydro Olje AB 

106 

 
 
 
 
                                                            
development, and the emergence of comparable products or other circumstances that 
may affect the accuracy or currency of the claim.' 

'Environmental  claims  should  not  relate  to  an  improvement  compared  to  a  product 
from the same trader or a competitor that is no longer available on the market or the 
trader no longer sells to consumers, unless this improvement is significant and recent.' 

5.1.6 

Application of Annex I to environmental claims 

The following practices listed in Annex I are particularly relevant to environmental claims: 

Point No 1 of ANNEX I 

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

For example: 

  A  trader  falsely  displaying  on  its  website  that  it  is  a  signatory  of  a  code  of 

conduct on the product’s environmental performance. 

Point No 2 of ANNEX I 

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

For example: 

  Using any EU or national label (e.g.: EU Ecolabel, Nordic Swan Label, Blue 

Angel or logo) without authorisation. 

Point No 3 of ANNEX I 

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

107 

 
  
 
 
 
 
 
  
 
 
 
 
 
  
  
 
 
 
 
For example: 

  A  trader  falsely  claiming  that  the  code  of  conduct  of  its  car-manufacturing 

company  is  endorsed  by  the  national  environment  agency,  ministry  or  consumer’s 
organisation. 

Point No 4 of ANNEX I 

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

For example: 

  Falsely  claiming  that  a  product  has  been  approved  by  an  environmental 

agency, NGO or standardisation body.  

Point No 10 of ANNEX I 

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

This  provision  clarifies  that  traders  should  not  mislead  consumers  by  unduly  emphasising 
attributes that come from regulatory requirements. 

For example: 

  Traders should not claim that a product is free of certain substances if such 

substances are already prohibited by legislation. 

5.1.7  Comparing environmental claims   

Environmental  claims  may  suggest  that  a  product  has  a  more  positive  impact  on  the 
environment  or  is  less  damaging  to  the  environment  than  competing  goods  or  services. 
Products bearing such comparative should be assessed against similar products. 

National  enforcers  and  self-regulatory  bodies  usually  interpret  this  principle  to  mean  that 
comparisons  should  refer  to  products  within  the  same  product  category.  However,  it 
would  seem  equally  important  that  the  method  used  to  produce  the  information  is  the 
same, that it is applied in a consistent manner (i.e. the same methodological choices and rules 

108 

 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
 
are  applied,  results  are  reproducible),  and  that  the  method  applied  allows  comparisons, 
otherwise any comparison becomes less meaningful.265  

Directive 2006/114/EC on misleading and comparative advertising lays down the conditions 
under which comparative advertising is permitted. Comparisons of the environmental benefits 
of products should, among other things: 

1.  not be misleading within the meaning of Articles 6 and 7 of the UCPD; 

2.  compare goods or services meeting the same needs or intended for the same purpose; 

3.  objectively  compare  one  or  more  material,  relevant,  verifiable  and  representative 

features of those goods and services. 

For example: 

 

In  the  UK,  a  press  advertisement  for  a  gas  company  was  headed  ‘A  step 
forward  to  greener  living’.  It  stated  ‘When  you  install  a  high  efficiency  gas 
condensing  boiler  you  reduce  your  carbon  footprint  compared  to  using  oil  or 
electricity’. A sub-heading stated ‘The facts show which fuel is greener’ followed by 
data that compared the amount of carbon dioxide that the trader claimed was needed 
to produce a kWh of energy from different fuels. A complaint about the ad was upheld 
by the UK Advertising Standards Authority (ASA). The ASA considered that, because 
the claim was not based on the most relevant comparison data, the advertisement was 
misleading.266 

  A Spanish court considered misleading an advertising claiming that filtered water was 
more  environmental  friendly  than  mineral  bottled  water,  giving  consumers  the 
impression that consuming filtered water instead of mineral water would contribute to 
the protection of the environment. In particular, the reference to greater protection of 
the  environment  was  deemed  misleading  since  the  comparison  was  not  based  on  any 
objective basis such as an impact study267.    

5.2 

Online sector 

As pointed out in Section 1, the Directive has a very broad scope of application as it covers 
the totality of business-to-consumer transactions, whether offline or online.  

It  is  technology  neutral  and  applies  regardless  of  the  channel,  medium  or  device  used  to 
implement a business-to-consumer commercial practice. 

265  This  principle  is  reflected  in  the  ongoing  work  on  environmental  footprints  led  by  the  Commission  in  collaboration  with  industry 

stakeholders, NGOs and Member States: http://ec.europa.eu/environment/eussd/smgp/product_footprint.htm. 

266  ASA Adjudication on Guernsey Gas Ltd; 7 July 2010: https://www.asa.org.uk/Rulings/Adjudications/2010/7/Guernsey-Gas-

Ltd/TF_ADJ_48712.aspx#.VZ1SDP774ps. 

267  Juzgado de lo Mercantil de Barcelona, Sentencia 63/2014. 

109 

 
 
 
 
                                                            
5.2.1  Online platforms  

The term "platform" is not defined in the UCPD and its use has no impact on the application 
of the Directive. However, the term can be useful in order to describe some of the business 
models that are emerging along with the digital economy.  

Platforms generally provide infrastructure and enable interactions between suppliers and users 
for the provision of goods, services, digital content and information online.  

On-line platforms work according to many different business models: their behaviours range 
from  merely  allowing  users  to  look  for  information  supplied  by  third  parties  to  facilitating, 
often  against  remuneration,  contractual  transactions  between  third  party  traders  and 
consumers  or  advertising  and  selling,  in  their  own  name,  different  kinds  of  products  and 
services including digital content. This box provides some examples of business models often 
referred to as "platforms".     

  Search engines (e.g. Google, Yahoo!) 

  Social media (e.g. Facebook, Twitter) 

  User review tools (e.g. Tripadvisor)  

  Comparison tools (e.g. Trivago.com, Rentalcars.com, Kayak.com, Booking.com)  

  Collaborative economy platforms (e.g. Airbnb, Uber, BlaBlaCar) 

  E-commerce platforms (marketplaces) (e.g. Zalando, Amazon, Alibaba, Ebay)  

  App stores (e.g. Apple App Store, Google Play, Amazon App Store) 

  Collective buying websites (e.g. Groupon) 

5.2.2 

The applicability of the UCPD to online platforms  

Given that the UCPD only applies in B2C situations, the first step in assessing whether this 
Directive is applicable to any given online platform provider should be to evaluate whether it 
qualifies as a "trader" under Article 2(b) UCPD. 

According  to  a  case-by-case  assessment,  a  platform  provider  may  be  acting  for  purposes 
relating  to  its  business  whenever,  for  example,  it  charges  a  commission  on  the  transactions 
between  suppliers  and  users,  provides  additional  paid  services  or  draws  revenues  from 
targeted advertising.  

110 

 
 
 
 
 
 
 
 
 
 
 
 
For example: 

 

In  a  decision  of  19  December  2014,  the  Italian  Consumer  and  Competition 
Authority  decided  that  an  online  travel  intermediary  was  a  "trader",  in  relation  to 
certain  claims  it  had  provided  on  its  Italian  website.  The  company's  role  was  not 
limited  to  storing  information  on  its  platform,  but  it  involved  an  activity  of 
classification and systematization of information related to hotel facilities, restaurants 
and tourist attractions. In particular, the company provided a comparison service of 
tourist facilities.268 

The second step in assessing whether the UCPD is applicable should be to evaluate whether 
the  platform  provider  engages  in  “business-to-consumer  commercial  practices”  within  the 
meaning  of  Article  2(d),  towards  users  (suppliers  and  recipients)  who  qualify  as 
"consumers" within the meaning of Article 2(a) UCPD.  

A  platform  qualifying  as  a  "trader"  must  always  comply  with  EU  consumer  and  marketing 
law as far as its own commercial practices are concerned. In particular, traders are subject 
to the transparency requirements of Articles 6 and 7 UCPD, which requires them to refrain 
from misleading actions and omissions whenever engaging in the promotion, sale or supply of 
a product to consumers.    

Furthermore, under Article 5(2) UCPD, no platform provider qualifying as a "trader" should 
act contrary to the requirements of professional diligence in its commercial practices towards 
consumers. Under Article 2(h) UCPD, ‘professional diligence’ means the standard of special 
skill  and  care  which  a  trader  may  reasonably  be  expected  to  exercise  towards  consumers, 
commensurate  with  honest  market  practice  and/or  the  general  principle of  good  faith  in  the 
trader’s field of activity.  

The  professional  diligence  duties  of  these  traders  vis-à-vis  consumers  under  the  UCPD  is 
different from, whilst complementary to, the regime on exemptions from liability established 
under  Article  14  of  the  e-Commerce  Directive  for  illegal  information  hosted  by  service 
providers at the request of third parties.  

In particular, Article 14(1) is often invoked by some platforms, which argue that they merely 
act as intermediaries providing hosting services, as defined in that provision, and that they are 
thus not liable for the information stored. 

 Article 14(1) of Directive 2000/31/EC (the e-Commerce Directive) 

Hosting 

1. Where an information society service is provided that consists of the storage of information 

268  Autorità Garante della Concorrenza e del Mercato) Decision PS9345 Tripadvisor of 19 December 2014, Paragraphs 87-89. This specific 
part of the decision by the AGCM was confirmed by the Tribunale Amministrativo Regionale per il Lazio on 13 July 2015; Sezione I, 
Sentenza n. 09355   

111 

 
 
 
 
  
 
                                                            
provided by a recipient of the service, Member States shall ensure that the service provider is 
not liable for the information stored at the request of a recipient of the service, on condition 
that: 

(a) the provider does not have actual knowledge of illegal activity or information and, 
as regards claims for damages, is not aware of facts or circumstances from which the 
illegal activity or information is apparent; or 

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to 
remove or to disable access to the information. 

Furthermore,  Article  15(1)  of  the  e-Commerce  Directive  prevents  Member  States  from 
imposing  on  such  "hosting  service  providers"  a  general  obligation  to  monitor  the  stored 
information or to actively engage in fact-finding. 

 Article 15(1) of Directive 2000/31/EC (the e-Commerce Directive) 

No general obligation to monitor 

1.  Member  States  shall  not  impose  a  general  obligation  on  providers,  when  providing  the 
services covered by Articles 12, 13 and 14, to monitor the information which they transmit or 
store,  nor  a  general  obligation  actively  to  seek  facts  or  circumstances  indicating  illegal 
activity. 

The above provisions of the e-Commerce Directive have a broad scope of application and are 
relevant  in  relation  to  different  kinds  of  illegal  information  hosted  by  platforms,  including 
information  in  breach  of consumer law, information infringing copyright  rules, hate speech, 
criminal  content  (terrorism,  child  sexual  abuse),  defamatory  statements,  etc,  as  well  as 
information regarding illegal activity.  

This Guidance document is not meant to provide clarification of the relevant provisions of 
the  e-Commerce  Directive.  The  role  of  platforms  in  general  will  be  assessed  within  the 
framework of a comprehensive analysis on the role of intermediaries.269 This Guidance only 
refers to provisions of the e-Commerce Directive in relation to their interplay with the UCPD. 
Its sole purpose is to clarify and facilitate enforcement of the UCPD vis-à-vis online platforms 
against the background that they often argue that they can invoke, in particular, Article 14 of 
the e-Commerce Directive. 

The Court of Justice has interpreted Article 14(1) of the e-Commerce Directive as regards the 
liability  of  hosting  providers  in  several  cases,  notably,  Joined  Cases  C-236/08  to  C-238/08, 
Louis Vuitton, (para. 113-119) and Case C-324/09, L'Oreal (para. 123-124, emphasis added), 
where it concluded that this provision: 

269  See the Communication Online Platforms and the Digital Single Market, Opportunities and Challenges for Europe, adopted on 25 May 

2016. 

112 

 
 
 
 
 
 
  
 
 
 
                                                            
"must be interpreted as applying to the operator of an online marketplace where that 
operator has not played an active role allowing it to have knowledge or control of the 
data stored. The operator plays such a role when it provides assistance which entails, 
in  particular,  optimising  the  presentation  of  the  offers  for  sale  in  question  or 
promoting them. 

Where the operator of the online marketplace has not played an active role within the 
meaning of the preceding paragraph and the service provided falls, as a consequence, 
within  the  scope  of  Article  14(1)  of  Directive  2000/31,  the  operator  none  the  less 
cannot, in a case which may result in an order to pay damages, rely on the exemption 
from liability provided for in that provision if it was aware of facts or circumstances 
on  the  basis  of  which  a  diligent  economic  operator  should  have  realised  that  the 
offers for sale in question were unlawful and, in the event of it being so aware, failed 
to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31." 

On the one hand, "the mere fact that the operator of an online market place stores offers for 
sale on its server, sets the terms of its service, is remunerated for that service and provides 
general  information  to  its  customers"  does  not  prevent  that  provider  from  relying  on  this 
exemption  from  liability  (see  para.  115  of  the  L'Oreal  judgment).  On  the  other  hand,  the 
hosting service provider does play an active role, which prevents it from being able to rely 
on  this  exemption,  inter  alia,  when  "it  provides  assistance  which  entails,  in  particular, 
optimising the presentation of the offers for sale in question or promoting" those offers (see 
para. 116 of that judgment). Similar conclusions were drawn in Joined Cases C-236/08 to C-
238/08,  Louis  Vuitton,  concerning  the  sale  by  Google  of  keywords  containing  trademarks 
('adwords').270  

Whether a hosting service provider plays an active or a passive role, as explained by the Court 
of Justice, must be assessed on a case-by-case basis. While it is ultimately only for the Court 
of Justice to rule on the interpretation of this provision of Union law, it can be noted that there 
is  substantial  case  law  from  national  courts  on  this  issue,  but  going  in  often  opposite 
directions.271  In  accordance  with  the  case  law  of  the  Court  of  Justice,272  the  key  element  in 
these  rulings  relates  to  the  platform  provider's  capacity  to  have  knowledge  of  or  control 
over the stored data.     

270  Case C-238/08, Louis Vuitton, 23 March 2010, paragraphs 114 to 119 (emphasis added): "in order to establish whether the liability of a 
referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by 
that  service  provider  is  neutral,  in  the  sense  that  its  conduct  is  merely  technical,  automatic  and  passive,  pointing  to  a  lack  of 
knowledge or control of the data which it stores." The Court also clarified that, in the context of this examination, "the role played by 
Google in drafting the commercial message which accompanies the advertising link or in the establishment or selection of keywords 
[is] relevant". 

271  See for example the differences between the German  Federal Court of Justice judgment Stokke vs eBay, I ZR 216/11, 16 May 2013, 
where  an  online  market  place  was  considered  to  have  taken  an  active  role  by  directly  offering  the  possibility  to  buy  from  the  online 
advertisement links it displayed, and the Leeuwarden Court of Appeal judgement Stokke vs Marktplaats B.V, 106031/HA ZA 05211, of 
22 May 2012, where the Dutch Court established, under identical circumstances, that a similar online market place did not play an active 
but a neutral role between its customers-sellers and the potential buyers and that it consequently offered a hosting service, as referred to 
in article 14 Ecommerce Directive). 

272  Joined Cases C-236/08 to C-238/08, Louis Vuitton, para. 113. 

113 

 
                                                            
For example: 

 

 

In  a  case  involving  a  price  comparison  website  offering  to  top  rank  the 
products  of  traders  that  paid  an  additional  fee,  the  French  Supreme  Court 
rejected the argument that this comparison site qualified as a mere hosting service 
provider. Instead, the Court found that the platform, by top ranking products against 
remuneration by third party traders, was indirectly promoting these products and thus 
acting as an active provider of a commercial service for these traders273.  
In  a  ruling  of  19  March  2015,  the  German  Federal  Court  of  Justice  decided  that  a 
hotel review site was not responsible for a review posted by a user stating that "For 
€37.50 per person per night there were bedbugs" in a specific hotel. The hotel owner 
took legal action against the hotel review site, claiming damages. However, the court 
found that the review site had not actively promoted or disseminated the user review, 
but rather had a neutral role in relation to it. Given this situation, the court concluded 
that  the  review  site  would  only  be  liable  for  the  content  of  the  user  review  if  it  had 
breached specific duties to carry out checks.274   

In addition, Article 1(3) of the e-Commerce Directive also makes it clear that the e-Commerce 
Directive  "complements  Community  law  applicable  to  information  society  services  without 
prejudice to the level of protection for, in particular, public health and consumer interests, as 
established by  Community acts and national legislation implementing them in  so far as this 
does not restrict the freedom to provide information society services". This means that the e-
Commerce  Directive  and  relevant  EU  consumer  acquis  apply  in  principle  in  a 
complementary manner.   

From a UCPD perspective, whenever an online platform can be considered a "trader" in the 
sense  of  the  UCPD  (Article  2(b)  UCPD)  it  is  required  to  act  with  a  degree  of  professional 
diligence  (Article  5(2)  UCPD),  commensurate  to  its  specific  field  of  activity  (Article  2(h) 
UCPD)  and  not  to  mislead  their  users/consumers  by  either  action  or  omission  (particularly 
with  reference  to  Articles  6(1)(f)  and  7(1)  and  (2)  UCPD).  Platforms  which  are  considered 
"traders",  should  take  appropriate  measures  which  –  without  amounting  to  a  general 
obligation to monitor or carry out fact-finding (see Article 15(1) e-Commerce Directive) – 
enable  relevant  third  party  traders  to  comply  with  EU  consumer  and  marketing  law 
requirements  and  users  to  clearly  understand  with  whom  they  are  possibly  concluding 
contracts. For example, such measures could imply: 

  Enabling  relevant  third  party  traders  to  clearly  indicate  that  they  act,  vis-à-vis  the 

platform users, as traders;  

  Clearly indicating to all platform users that  they will only benefit from  protection 
under  EU  consumer  and  marketing  laws  in  their  relations  with  those  suppliers 
who are traders; 

  Designing their web-structure in a way that enables third party traders to present 
information  to  platform  users  in  a  way  that  enables  third  party  traders  to  comply 

273  Cass. Com. 4 décembre 2012, 11-27729, Publicité Sté Pewterpassion.com c/ Sté Leguide.com 
274  German Federal Court of Justice, I ZR 94/13, 19 March 2015. 

114 

 
 
                                                            
with EU marketing and consumer law – in particular, information required by Article 
7(4) UCPD in the case of invitations to purchase. 

If  on-line  intermediaries  falling  within  the  scope  of  the  UCPD  fail  to  comply  with  such 
professional diligence requirements or otherwise promote, sell or supply a product to users in 
an  unfair  manner,  they  can  be  found  in  breach  of  EU  consumer  and  marketing  law  –    and 
cannot invoke the intermediary liability exemption under the e-Commerce Directive as far as 
their  own  failures  are  concerned,  considering  that  that  exemption  relates  only  to  illegal 
information stored at the request of third parties.   

The  following  sections  deal  with  additional  issues  of  compliance  with  UCPD  requirements 
which take into account the specific business models developed by the different kinds of on-
line platforms which have so far emerged.  

5.2.3 

E-commerce platforms (marketplaces) 

E-commerce platforms, also referred to as ‘marketplaces’, enable customers to buy products 
offered by third party traders directly online, in some cases in addition to their own products 
(e.g.  Amazon,  Pixmania).  Some  marketplaces  only  have  offers  by  third  party  professional 
sellers; others have a mixture of offers from private individuals and professional sellers (e.g. 
Ebay). 

A  specific  issue  for  marketplaces  is  whether  they  are  liable  in  cases  of  non-conformity  of 
goods supplied by third party sellers, including non-delivery. Non-conformity is covered by 
the Consumer Sales and Guarantees Directive.275 Under Articles 3 and 5 of that Directive, the 
‘seller  shall  be  liable  for  any  lack  of  conformity  which  exists  at  the  time  the  goods  were 
delivered’ and which ‘becomes apparent within two years from delivery’, i.e. within the two-
year legal guarantee period.  Liability for lack of conformity with the contract  rests with 
the ‘seller’. Under Article 1(2)(c) of the Consumer Sales and Guarantees Directive, a seller is 
a ‘natural or legal person who, under a contract, sells consumer goods in the course of his 
trade, business or profession’. 

Therefore,  the  party  who  has  to  remedy  the  non-conformity  (through  repair,  replacement, 
reduction of the price or rescission of the contract) is the person with whom the consumer 
concludes  the  sales  contract  on  the  marketplace.  Who  this  is  will  depend  on the  specific 
circumstances of the individual contract. 

Nonetheless,  as  described  in  the  previous  section,  under  the  professional  diligence  and 
transparency requirements laid down by Articles 5(2), 2(h), 6 and 7 UCPD, any e-commerce 
platform,  insofar  as  it  can  be  considered  a  "trader",  should  take  appropriate  measures 
enabling, amongst others, its users to clearly understand who their contracting party is – and 
the fact that they will only benefit from protection under EU consumer and marketing laws in 
their relations with those suppliers who are traders. 

275  Directive 1999/44/EC on the sale of consumer goods and associated guarantees.  

115 

 
                                                            
A case currently pending before the Court will determine whether an intermediary – which, in 
the case at stake, is an off-line one - can be deemed liable for the lack of conformity of the 
good  and  the  possible  detriment  suffered  by  the  consumer  if  it  has  misled,  by  action  or 
omission, the consumer to believe that the contract was concluded with itself rather than 
with  a  third  party  seller.  The  decisive  issue  in  this  case  is  whether  a  professional 
intermediary can itself be considered a party to a sales contract between two consumers under 
the Consumer Sales and Guarantees Directive 1999/44/EC if it does not adequately inform the 
consumer-buyer about the identity and status of the actual consumer-seller.276   

For example: 

A consumer buys a new laptop computer on an online marketplace. In both the 
invitation to purchase and the pre-contractual information, it is clearly stated that the 
seller  is  not  the  marketplace  itself,  but  a  third  party  trader.  The  ensuing  contract  is 
clearly stipulated between the consumer and the third party trader. If subsequently the 
consumer discovers a lack of conformity of the delivered product with the contract, the 
claim should be directed at the third party trader and not at the marketplace.  

 

In  a  ruling  of  18  November  2015,  a  Danish  High  Court  considered  an  online  travel 
agency,  that  had  acted  as  an  intermediary  between  a  consumer  who  bought  a  flight 
ticket and an airline, to be the seller of the tickets and responsible for compensating the 
consumer  for  failure  by  the  airline  to  provide  the  flight.  The  court  found  that  the 
consumer had reason to assume that he had bought the ticket directly from the travel 
agency, given that the latter had been his only contact point during the purchase, had 
received the payment and provided the tickets. The general impression provided by the 
webpage of the travel agency also made it reasonable for the consumer to assume that 
he was buying the tickets directly from them. This ruling was based on Danish contract 
law.277   

Another practice that may mislead consumers is the  sale by e-commerce market places of 
brand names as keywords in cases where this can be deceptive as regards the identity of the 
trader actually offering the product. . 

276  See the Advocate General's Opinion of  7 April 2016 in the pending preliminary ruling in case C-149/15, where the intermediary (a car 
garage) had failed to properly inform the consumer buyer, before the purchase of the car, about the status and identity of the actual seller: 
http://curia.europa.eu/juris/document/document.jsf?text=&docid=175623&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part
=1&cid=712468#Footref19 

277 

https://www.domstol.dk/oestrelandsret/nyheder/domsresumeer/Pages/Rejsebureauserstatningsansvarforforbrugerstabvedaflystflyrejseianl
edningafCimberSterlingskonkurs.aspx 

116 

 
 
 
     
 
                                                            
For example: 

 

In the eBay  vs  L'Oréal278 case, the Court  found  that,  while  an online market 
place's  practice  of  allowing  advertisers  to  purchase  keywords  corresponding  to  their 
competitors’  trademarks  did  not  infringe  trademark  law,  companies  that  use 
trademarked  brand  keywords  to  push  sales  must  also,  under  Article  6  of  the  e-
Commerce  Directive,  be  transparent  about  who  the  seller  is,  so  as  to  allow  internet 
users to easily establish from which undertaking the goods or services covered by the 
advertising in question originate. 

The  UCPD,  in  particular  Articles  6(1)(a)  and  6  (2)(a),  will  come  into  play  if  the  results 
displayed are likely to deceive consumers as to the nature of the product or create confusion 
between trade names or other distinguishing marks of competitors. 

Companies using trademarked brand keywords to sell counterfeited products could potentially 
be  found  in  breach  of  point  No  9  of  Annex  I  to  the  UCPD,  which  prohibits  ‘stating  or 
otherwise creating the impression that a product can legally be sold when it cannot’. 

5.2.4 

App stores 

An  ‘app  store’  (or  application  store)  is  a  portal  for  the  supply  of  software  programmes  for 
smart devices (e.g. smartphones and tablets), which are referred to as applications (apps). The 
software programmes can be games or other products, such as digital newspapers.   

App stores generally distribute apps developed by either the app store provider or third party 
app developers. 

‘In-app  purchases’  are  purchases  that  can  be  made  from  within  apps.  By  making  in-app 
purchases,  consumers  can  typically  buy  special  content  or  features  that  can  enhance  the 
experience of games or other digital content that may be free to download as such. 

For example: 

 

In  the  game  ‘X’s  Village’,  the  objective  is  for  the  player  to  build  a  virtual 
village  for  X  from  scratch.  The  game  is  free  to  download  and  play,  but  it  offers  the 
possibility  for  the  player  to  buy  additional  content,  notably  different  amounts  of  ‘X 
berries’, which the player can use to progress faster in the game.     

In  2013  and  2014,  European  national  consumer  protection  authorities,  acting  through  the 
Consumer Protection Cooperation (CPC) Network, carried out a joint enforcement action on 
online games (apps) that offer in-app purchases and that are likely to appeal to or to be 
played  by  children.279  In  this  joint  action,  the  national  enforcement  authorities  (CPC 
authorities)  applied  the  UCPD  and  other  relevant  EU  law  to  digital  games  offering  in-app 

278  Case C-324/09, L’Oreal, 12 July 2011. 
279  http://ec.europa.eu/justice/newsroom/consumer-marketing/news/1401222_en.htm 

and 

http://europa.eu/rapid/press-release_IP-14-

847_en.htm. 

117 

 
 
 
 
 
 
                                                            
purchases.  The  action  was  triggered  by  national  investigations  which  had  identified  the 
following concerns with respect to such games: 

  misleading presentations of games as ‘free’; 

  direct exhortations to children; 

  lack of information about payment settings and insufficient consent by consumers for 

purchases; 

  lack of information about traders’ email addresses. 

In  December  2013,  several  CPC  authorities  agreed  on  a  common  position  on  these  legal 
issues.280  The  assessment  made  in  this  common  position  applies  both  to  app  stores  as 
platforms, as discussed in general in Section 5.2.2, and to individual app developers. 

As regards misleading presentations of games as free, the CPC authorities identified No 20 
of Annex I and Article 7(4)(c) UCPD, in addition to Article 6(1)(e) of the Consumer Rights 
Directive,  as  the  main  legal  basis  for  assessing  traders’  compliance  with  EU  consumer  and 
marketing law.   

On the basis of those provisions, the CPC authorities clarified that only games where in-app 
purchases  are  optional  can  be  presented  as  ‘free’  without  misleading  consumers. 
According  to  the  common  position,  an  online  game  cannot  be  marketed  as  ‘free’  if  the 
consumer cannot play the game in a way that he/she would reasonably expect without making 
in-app purchases. This is to be assessed on a case-by-case basis for each app that includes in-
app purchases. 

The CPC authorities also underlined that a game found to be in compliance with point No 20 
of  Annex  I  as  concerns  the  use  of  the  word  ‘free’  can  still  be  assessed  under  other 
provisions of the UCPD, such as Articles 6 to 9, to make sure that other elements, like how 
price information is displayed, are not misleading or aggressive. 

As  regards  direct  exhortations  to  children,  the  CPC  authorities  identified  point  No  28  of 
Annex I and Article 5(3) UCPD as the main legal basis for assessing traders’ compliance with 
EU consumer and marketing law.   

The  CPC  authorities  clarified  that  games  targeted  at  children,  or  which  traders  can 
reasonably  foresee  to  be  likely  to  appeal  to  children,  must  not  contain  direct 
exhortations to children to buy additional in-game items. This includes putting pressure on 
a  child  to  buy  an  item  directly  or  to  persuade  an  adult  to  buy  items  for  them.  Please  see 
Section  4.6  for  examples  of  commercial  practices  that  have  been  considered  by  national 
authorities to include direct exhortations to children. 

As regards information about payment settings and consent by consumers for purchases, 
the  CPC  authorities  clarified  that,  under  Articles  7(2)  and  7(4)(d)  of  the  UCPD  and  Article 

280  http://ec.europa.eu/consumers/enforcement/documents/common_position_on_online_games_en.pdf. 

118 

 
                                                            
6(1)(g) of the Consumer Rights Directive, consumers must be clearly informed about the 
arrangements  for  payment  before  each  purchase.  Under  the  Consumer  Rights  Directive, 
any  purchase  requires  the  consumer’s  express consent  and  the  trader needs  to  provide  the 
consumer  with  the  necessary  information.  Reference  is  also  made  to  Article  54  of  the 
Payment Services Directive which requires payer's consent to execute the payment transaction 
and  states  that,  in  the  absence  of  such  consent,  a  payment  transaction  is  considered  to  be 
unauthorised281.  

The CPC authorities noted that default setting for payments should not allow purchases to be 
made  without  the  consumer’s  explicit  consent  (e.g.  via  a  password).  When  the  system 
provides  for  time  slots  for  the  validity  of  consent  (e.g.  a  15  minutes  slot),  traders  should 
request consumer’s explicit consent in relation to the applicable duration. 

The CPC authorities stressed that information about the identity of the trader should be easy 
to find, clear, comprehensive and provided in a timely fashion before the consumer decides to 
play,  download  or  make  a  purchase.  As  regards  information  about  traders’  email 
addresses,  the  CPC  authorities  applied  Article  5(1)(c)  of  the  e-Commerce  Directive,  under 
which, in combination with Article 7(5) UCPD, this information qualifies as material within 
the  meaning  of  the  UCPD.  Following  the  entry  into  application  of  the  Consumer  Rights 
Directive  in  June  2014,  traders  are  also  required  to  provide  consumers  with  their  email 
address on the basis of its Article 6(1)(c). .   

5.2.5  Collaborative economy282 

Online platforms also act as central elements in the collaborative economy bringing together 
suppliers  and  users  of  different  services,  such  as  transport  and  accommodation.  As  an 
intermediary, the online platform enables suppliers to make their offers available to users and 
may also intermediate the placing and fulfilment of orders on their behalf. As regards users, 
such  intermediaries  enable  them  to  benefit  from  the  offers  provided  by  the  suppliers.  There 
are various types of collaborative platforms, including purely private non-for-profit initiatives.  

The  Commission  will  adopt  in  June  2016  a  Communication  on  the  Collaborative  economy 
with guidance on how EU law applies to collaborative economy business models. Generally 
speaking, whenever a collaborative economy platform qualifies as a "trader" and engages in 
commercial  activities  towards  consumers,  it  must  respect  the  professional  diligence  and 
transparency requirements of the Directive as described in Section 5.2.2.  

In particular, with a view to avoid omitting material information, the collaborative economy 
platform should,  under Articles 6(1)(f) and 7(1)  and (2) of the UCPD,  enable relevant  third 
party  traders  to  indicate  to  users  that  they  are  traders,  and  the  platform  should  inform 
consumers whether and if so what criteria it applies to select the suppliers operating through it 
and whether and if so what checks it performs in relation to their reliability.   

281  The Payment Services Directive 2007/64/EC will be replaced, as from 13 January 2018, by Directive (EU) 2015/2366 of 25 November 

2015 on payment services in the internal market. Similar rules are provided in its Article 64. 

282  The  European  Commission  has  launched  a  study  to  analyse,  amongst  others,  national  rules  applicable  to  suppliers  in  the  sharing 
economy  context.  See:  Call  for  tender  n°  Chafea/2015/CP/02  concerning  “The  exploratory  Study  of  Consumer  Issues  in  the  Sharing 
Economy”. Available at http://ec.europa.eu/chafea/consumers/tender-2015-cp-02_en.html 

119 

 
                                                            
"Collaborative  economy"  often,  but  not  exclusively,  refers  to  transactions  between  peer 
consumers – suppliers and users having as their object the sharing of assets, resources, time 
and skills (e.g. car rides by splitting the costs). However, depending on the circumstances of 
the suppliers and the associated activities, they could also qualify as traders for the purposes 
of the UCPD. Where the supplier is a "trader" and the user is a "consumer", the UCPD will 
apply directly to the commercial practices of the supplier on the platform. 

A supplier will qualify as a "trader" under the UCPD if he is acting for purposes relating to 
his trade, business, craft or profession (Article 2(b)). According to this definition, the mere 
fact that a person engages in an activity in the collaborative economy will not mean that that 
person automatically qualifies as a "trader": under the UCPD, the qualification of whether a 
person is a "trader" or not is the outcome of a case-by-case assessment, which has to take all 
factual aspects into account, such as whether an essential part of that person's income stems 
from a given collaborative economy activity.    

5.2.6 

Search engines 

Search  engines  allow  searching  for  information  on  the  internet  according  to  a  specific 
algorithm.  Consumers  will  expect  search  engines  to  display  'natural'  or  'organic'  results 
relevant for their search query, and based on sufficiently impartial criteria. However, evidence 
shows that search engines may, for example, include lists of search results based on relevance 
criteria linked to the level of payment they receive from third party traders. Typical examples 
are ‘paid placement’ and ‘paid inclusion’, which are forms of advertising within the meaning 
of the UCPD.  

In  ‘paid  placement’,  individual  traders  (websites  or  URLs)  pay  for  a  higher  ranking  in  a 
search results list so that relevance criteria alone will not determine their rank.  

In  ‘paid  inclusion’,  third  party  traders  pay  to  be  included  in  a  list  of  search  results  in 
situations  where  they  might  not  otherwise  have  been  included  or  might  not  have  been 
included at a particular point in time if relevance to the search query had been the only criteria 
for arranging search results.    

Although  the  ways  in  which  search  engines  retrieve  and  present  results  and  the  devices  on 
which  consumers  view  these  results  are  constantly  evolving,  the  main  UCPD  principles 
remain  the  same:  unless  consumers  are  informed  otherwise,  they  will  ordinarily  expect 
natural  search  results  to  be  included  and  ranked  based  on  relevance  to  their  search 
queries and not based on payment by third party traders. 

The UCPD does not ban business practices whereby inclusion or ranking in whole or in part is 
based on payment from another trader, but requires the search engine provider, to the extent 
that  it  qualifies  as  a  "trader  under  the  UCPD",  to  clearly  distinguish  such  search  results 
from natural search results. The purpose of such disclosures is to inform consumers when 
they are being solicited as opposed to being impartially informed. 

120 

 
Under the UCPD, failure to disclose paid placement within search results could firstly be in 
breach of the requirement to clearly distinguish editorial content from advertising content 
(point No 11 of Annex I).  

Secondly,  if  the  conditions  under  point  No  11  of  Annex  I  are  not  fulfilled,  Article  6(1)(c) 
prevents  traders  from  misleading  consumers  on  the  motives  for  commercial  practices,  the 
nature of the sales process and direct or indirect sponsorship or approval of traders or 
products.  

Thirdly, Article 7(2) and point No 22 of Annex I prevent traders from hiding the commercial 
intent of a commercial practice. 

Therefore, any search results showing the websites or URLs of traders who have paid to be 
included or ranked higher than they would be ranked by relevancy or other objective criteria 
should be clearly and prominently labelled to show that the ranking or inclusion is paid for. 
Such labels need to convey that the sites listed are placed higher, or otherwise presented more 
prominently, because they have paid for their ranking or position. 

In recent years, the features put in place by some widely used search engines to differentiate 
advertising  from  natural  search  results  seem  to  have  become  less  noticeable  to  consumers. 
This  applies  especially  to  advertising  located  immediately  above  the  natural  results  (‘top 
ads’). Recent evidence suggests that searchers often do not recognise top ads as distinct from 
natural  search  results,  especially  when  the  contrast  and  background  shading  used  to 
distinguish ads is weak.283 

Many search engines offer specialised or vertical search services in addition to their general 
search service. This allows consumers to narrow their search down to  specific categories of 
information, such as news, images, local businesses or consumer goods. In certain situations, 
the results of a  specialised search are based at  least  in  part on payments from a third  party. 
This should be identified as such to consumers. 

5.2.7  Comparison tools 

A multi-stakeholder group on comparison tools bringing together industry representatives, 
operators  of  comparison  tools,  NGOs  and  national  authorities  was  set  up  by  the  European 
Commission284 to develop principles specifically aimed at helping comparison tool operators 
to comply with the UCPD. This group has agreed on a list of ‘Key principles for comparison 
tools’,  which  is  consistent  with  this Section.  The  principles are  not  legally  binding as  such. 
They are available at:   

http://ec.europa.eu/consumers/consumer_rights/unfair-trade/unfair-practices. 

283  SEOBook,  Consumer  Ad  Awareness  in  Search  Results,  *2,  7-8  (Apr.  15,  2012),  http://www.seobook.com/consumer-ad-awareness-
search-results.  Earlier published research has reported similar findings. For example, in the 2005 Pew Research Center survey, 62% of 
searchers were not even aware of the distinction between paid and non-paid results, with only 18% saying they could always differentiate 
paid from non-paid results. 2005 Pew Search Engine Survey at ii, 17.  

284  http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3325&news=1. 

121 

 
                                                            
As  part  of  these  Key  principles,  the  multi-stakeholder  group  also  agreed  on  the  following 
definition of comparison tools: 

‘For the purposes of this document the term ‘comparison tool’ should be understood 
as  including  all  digital content  and  applications  developed  to  be  used by  consumers 
primarily  to  compare  products  and  services  online,  irrespective  of  the  device  used 
(e.g.  laptop,  smartphone,  tablet)  or  the  parameter(s)  on  which  the  comparison  is 
based  (e.g.  price,  quality,  user  reviews).  To  the  extent  that  operators  of  search 
engines, travel or ticket booking sites, e-commerce platforms acting as a marketplace 
for  several traders  develop functions or applications dedicated to  the comparison  of 
products  and  services,  these  functions  or  applications  are  also  covered  by  the  term 
‘comparison tool.’   

A recent study for the European Commission285 found that the most popular types of online 
platforms usually offer some degree of comparison services, even if in many instances their 
comparison  function  does  not  cover  as  large  a  variety  of  products  or  services  as  that  of 
dedicated  comparison  web  sites.  These  include  travel  booking  sites  such  as  Expedia, 
Tripadvisor,  Booking.com  and  Opodo,  search  engines  such  as  Google  and  Yahoo.  Multi-
trader  e-commerce  platforms  such  as  Amazon  and  eBay  also  offer  a  limited  comparison 
function  for  offers  listed  on  their  sites.  The  UCPD  only  applies  to  the  comparison  tool  if  it 
qualifies as a ‘trader’ within the meaning of Article 2(b), i.e. the Directive does not apply to 
comparison tools that are run on a non-professional basis. 

For example: 

  A  grocery  price  comparison  service  (‘quiestlemoinscher.com’,  created  by  a 

large French supermarket company) was considered by French courts to be a trader’s 
website and a tool for comparative advertising.286  

  A  consumer  organisation  running  a  comparison  tool  offering  information  to 
consumers against payment of a subscription would, in principle, have to comply with 
the requirements of the UCPD. Indeed, this service could be part of the organisation’s 
strategy to gain commercial profit from its services to consumers, making it a ‘trader’ 
within the meaning of Article 2(b) of the Directive. 

Whether  providers  of  comparison  tools  which  qualify  as  traders  comply  with  their 
transparency obligations under Articles 6 and 7 of the UCPD must be assessed on a case-by-
case basis. Different criteria could be relevant in  this  assessment, for example whether they 
provide information on: 

 

the comparison coverage (e.g. sectors and number of traders); 

285  Study on the coverage, functioning and consumer use of comparison tools and third-party verification schemes for such tools by ECME 

Consortium and DELOITTE, funded by the European Union, 2014. 

286  Tribunal de commerce de Paris – 29 mars 2007 – Carrefour c/Galaec (la coopérative groupement d’achat des centres Leclerc).  

122 

 
 
 
 
 
                                                            
 

the  criteria  applied  for  comparing  and  ranking  products  (e.g.  whether  paid  or 
sponsored products are included among comparison results, whether the presentation 
of  comparison  results  clearly  distinguishes  between  products  that  are  included  or 
ranked on the basis of payment and other products, whether other optional services are 
included); 

 

the frequency of updates of the information (in particular the price and availability of 
products). 

Such information may enable consumers to understand that the ranking of products or traders 
may  not  be  exhaustive  and  that  they  may  find  other  offers  using  a  different  information 
channel. It will also help to avoid the risk of consumers being misled by listings marked as a 
‘best deal’ or ‘recommended choice’. 

In  their  ‘Key  principles  for  comparison  tools’,  the  multi-stakeholder  group  on  comparison 
tools considers that: 

‘Criteria  used  for  the  rankings  should  be  clearly  and  prominently  indicated,  as  well 
as, where relevant to ensure that consumers are not misled, general information about 
any specific methodology used (…). Comparison tools should give a clear indication 
of the completeness and coverage of the comparison’. 

Some comparison tools use claims such as ‘best deals’ to identify not necessarily the cheapest 
deals,  but  rather  those  that  offer  the  best  value  for  money.  Omitting  information  about  the 
criteria for the ‘best deal’ claim could be misleading under Article 7 of the UCPD. 

Under Article 6(2) of the UCPD, providers of comparison tools who qualify as traders under 
the  UCPD  and  engage  in  any  commercial  communication  directly  connected  with  the 
promotion, sale or supply of a product to consumers must ensure that the information that is 
provided  by  the  platform  itself  does  not  create  confusion  with  any  products,  trade 
marks, trade names or other distinguishing marks of a competitor.  

Under  Article  6(1)(d)  and  7(4)(c)  of  the  UCPD,  the total  price  or  the manner  in  which  it  is 
calculated must be clearly indicated, including, "where appropriate, freight, delivery or postal 
charges".  Hence,  if  the comparison  tool site  does  not  directly  sell itself and  hence  does  not 
deal with such delivery charges, it would not need to display them.  

When  the  goods  or  services  compared  are  not  identical,  differences  in  their  main 
characteristics should be clearly indicated.  

In  their  ‘Key  principles  for  comparison  tools’,  the  multi-stakeholder  group  on  comparison 
tools considers that:  

‘Comparison tools should ensure that all the information they provide is accurate and 
in particular that information regarding price and availability corresponds exactly to 
the offer as made available by the seller of the product or service. In no case should 
availability information give a false impression of scarcity’.  

123 

 
Comparison tools sometimes display prices that cannot be found when consumers go to the 
web page of the trader providing the actual product.287 If a comparison tool displays prices or 
products that are not actually available this could be in breach of Articles 6 and 7 UCPD and, 
according to the circumstances, several provisions of the black list in Annex I UCPD, which 
prohibit, in all circumstances, bait advertising (point No 5), bait and switch (point No 6) and 
passing  on  materially  inaccurate  information  on  market  conditions  with  the  intention  of 
inducing  the  consumer  to  acquire  that  product  at  conditions  less  favourable  than  normal 
market conditions (point No 18). This assessment is without prejudice to Articles 14 and 15 of 
the e-Commerce Directive. 

Misleading  statements  about  limited  availability  of  a  product  may  be  in  breach  of  Article 
6(1)(b) of the UCPD. 

For example: 

  A  major  accommodation  booking  platform  was  fined  by  the  Commercial 

Court  of  Paris  for  displaying  misleading  information  on  the  availability  of 
accommodation and the existence of price promotions.288 

 

In  April  2014,  the  Dutch  Advertising  Code  Committee  found  advertisements  on  a 
major accommodation booking platform to be misleading. The claims were: ‘We have 
only 1 room left!’ and ‘Only 1 room left’ at a specific price. The authority found that it 
was not clear to the average consumer that these claims only related to  the rooms a 
hotel  had  made  available  through  that  platform.  The  platform’s  failure  to  inform 
consumers that its claims related to those rooms only meant that consumers could be 
misled into believing that the hotels were fully booked, whereas in fact the same hotels 
could  have  rooms  available  through  other  booking  channels.  In  July  2014,  this 
decision was upheld by the Appeals Board.289   

  A comparison tool may use different techniques to imply to consumers that a product is 
not  available.  For  example,  by  using  the  technique  of  "dimming",  a  comparison  tool 
takes  down  pictures  related  to  the  offer  of  one  specific  provider  while  keeping  the 
pictures of other providers. This could lead consumers to click much less frequently on 
the offer without pictures. If such a presentation is likely to deceive consumers, it could 
be contrary to Article 6(1)(b) as misleading in relation to the availability of a product 
and to Article 7(2) UCPD as information provided in an unclear manner.        

Available  evidence  suggests290  that  the  nature  of  the  relationship  between  comparison  tool 
operators and the sellers of products and services featured on their platforms is often unclear 
to consumers. 

287  According to the Study on the coverage, functioning and consumer use of comparison tools and third-party verification schemes for such 
tools (EAHC/FWC/2013 85 07), the most commonly reported problem was the unavailability of a product on the seller’s website (32%).  

288  Tribunal de commerce de Paris, 4 October 2011, Synhorcat c/ Expedia. 
289  https://www.reclamecode.nl/webuitspraak.asp?ID=135065&acCode. 
290  Study on the coverage, functioning and consumer use of comparison tools and third-party verification schemes for such tools by ECME 

Consortium and DELOITTE, funded by the European Union, 2014.  

124 

 
 
 
 
 
                                                            
As  discussed  in  Section  5.2.1.5  on  search  engines,  the  UCPD  requires  all  traders  to  clearly 
distinguish  a  natural  search  result  from  advertising.  This  also  applies  to  operators  of 
comparison tools. The relevant provisions in this respect are Article 6(1)(c) and (f), 7(2) and 
points No 11 and No 22 of Annex I UCPD. 

In  their  ‘Key  principles  for  comparison  tools’,  the  multi-stakeholder  group  on  comparison 
tools considers that:   

‘Consumers  must  be  clearly  informed  when  a  contractual  or  any  other  type  of 
relationships  between  the  comparison  tool  operator  and  a  trader  is  affecting  the 
impartiality  of  the  results  displayed.  When  the  default  ranking  is  affected  by  a 
contractual  or  any  other  type  of  relationships  between  the  CT  operator  and  the 
manufacturer/seller/provider/any other organisation, it should be clearly marked and 
consumers should also be given the option to rank the offers in an impartial way (e.g. 
by ascending price)’.  

The ‘Key principles for comparison tools’ also say that:   

‘Comparison tools should be transparent about their business and financing models, 
including  owners,  shareholders,  material  connections  with  manufacturers,  sellers  or 
providers  of  the  goods  and  services  featured.  Any  material  connection  to  traders 
whose products/services are compared on the comparison tools should be adequately 
disclosed.’ 

For example: 

  A  banner  on  the  page  displaying  search  results  that  clearly  identifies 

advertisements. 

  The  use  of  a  specific  colour,  font  or  display  to  identify  advertisements,  including 

through special icons. 

Some failures by comparison tools to properly disclose paid inclusion or placement have been 
considered misleading by national authorities. 

For example: 

  A price comparison website offered to top rank the products of traders paying 

an  additional  fee.  The  French  Supreme  Court  ruled  that  consumers’  transactional 
decisions can be influenced by a comparative display that they might believe has no 
commercial  intent  or  objective.  On  this  basis,  the  comparison  website’s  commercial 
practice  was  qualified  as  misleading.  The  Court  found  that  the  comparison  tool’s 
failure to clearly identify this top ranking as a paid one was likely to materially distort 
the economic behaviour of consumers.291 

291  Cass. Com. 4 décembre 2012, 11-27729, Publicité Sté Pewterpassion.com c/ Sté Leguide.com. 

125 

 
 
 
 
 
                                                            
  A major comparison and booking service enabled hotels to manipulate the ranking by 
paying higher commission fees. This was found misleading by the Regional Court of 
Berlin.292 

Comparison  tools  that  rank  products  using  scores  calculated  on  the  basis  of  user  reviews 
should also comply with the principles discussed in Section 5.2.8 on user review tools. 

5.2.8  User review tools 

Many online platforms offer consumers the possibility to inform other consumers about their 
experience with a product or a service provider. This includes e-Commerce platforms, search 
engines, specialised travel review sites, comparison tools and social networks. 

For example: 

  On  19 June 2015,  the  UK  Competition  and  Markets  Authority  published  a 

report on online reviews and endorsements in the UK following a call for information 
to industry and consumers.293 Among the findings in this report was that: 'Consumers 
that  use  online  reviews  find  them  valuable.  We  estimate  that  more  than  half  of  UK 
adults use them. Across the six broad sectors that we looked at, we estimate that £23 
billion  a  year  of  UK  consumer  spending  is  potentially  influenced  by  online  reviews. 
Consumers  that  use  online  reviews  appear  to  trust  them  and  they  appear  to  be  an 
important  source  of  information  for  consumers’  buying  decisions.  Further,  most 
consumers  said  that  the  product  or  service  purchased  after  reading  reviews  matched 
up to their expectations'. 

The  UCPD  applies  to  any  natural  or  legal  person  that  qualifies  as  a  "trader"  according  to 
Article  2(b)  UCPD.  As  regards  consumer  reviews,  the  Directive  will  not  apply  to 
consumers  who  provide  information  about  their  experience  with  products  or  services, 
unless they are acting on behalf of a trader. However, it will apply to the practices of many 
online platforms that present consumer reviews, in so far as these platforms qualify as traders. 
The notion of the "trader" within the meaning of the UCPD is discussed in Section 2.1. 

When publishing user reviews, a platform operator is required to provide truthful information 
on  the  main  characteristics  of  its  services  in  accordance  with  Articles  6(1)(b)  and  7(4)(a) 
UCPD. In particular, the platform should not mislead its users as to the origin of the reviews: 
it  should  avoid  creating  the  impression  that  reviews  posted  through  it  originate  from  real 
users,  when  it  cannot  adequately  ensure  this.  In  such  case,  the  platform  operator  should 
clearly inform consumers about this fact. If, a contrario, a user review tool provider explicitly 
claims  that  its  reviews  originate  from  users,  it  should  take  reasonable  and  proportionate 
steps  which  –  without  amounting  to  a  general  obligation  to  monitor  or  carry  out  fact-
finding (see Article 15(1) e-Commerce Directive) – increase the likelihood for such reviews 
to reflect real users' experiences.  

292  LG Berlin, 25.08.2011, Az.16 O 418/11. 
293  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436238/Online_reviews_and_endorsements.pdf  

126 

 
 
 
 
 
                                                            
Such steps could include for example:  

  having the technical means to verify the reliability of the person posting a review, for 

instance by requesting him/her to register;  

  verifying the IP address used to submit the review;  

  requiring  information  by  which  the  person  acknowledges  to  have  actually  used  the 

object of the review (e.g. a booking number).  

In  their  ‘Key  principles  for  comparison  tools’,  the  multi-stakeholder  group  on  comparison 
tools considers that:   

‘Comparison tools should take measures to ensure the trustworthiness of user reviews 
and ratings, and provide an overview of the methodology used to the extent that this is 
necessary to ensure that consumers are not misled.’   

If a trader posts fake reviews in the name of consumers (or engages e-reputation agencies 
to do so) it is acting contrary to point No 22 of Annex I of the Directive, which prohibits 
‘falsely representing oneself as a consumer’. Consequently, any review presented by a trader 
as  information  provided  by  a  consumer  must  genuinely  reflect  real  consumers’  opinions, 
findings, beliefs or experience. 

For example: 

  A  trader  posted  ‘likes’  for  its  dental  products  on  its  own  website  claiming 

 

‘guaranteed  real  customer  reviews’  and  then  linked  the  ‘likes’  to  a  review  site,  on 
which the positive customer reviews were favoured over neutral or negative reviews. A 
German  appellate  Court  found  it misleading of  the  trader  to  claim  ‘guaranteed real 
customer  reviews’,  when  the  link  was  not  giving  an  objective  account  of  the 
customers’ views.294       
In October 2015, Canada’s largest telecommunications company agreed to pay a fine 
of 1 250 000 Canadian dollars for encouraging its employees to post positive reviews 
and  ratings  of  the  company’s  products  without  disclosing  that  they  worked  for  the 
company.  The  Canadian  Competition  Bureau  found  that  these  reviews  and  ratings 
created  the  general  impression  that  they  were  made  by  independent  and  impartial 
consumers  and  temporarily  affected  the  overall  star  rating  for  the  products  in 
question.295 

A problematic practice that has been reported by enforcement authorities is the  suppression 
of  genuine  negative  consumer  reviews  by  review  sites,  without  making  it  clear  to 
consumers that only a selection of reviews is being presented to them.296  

This could be a misleading action contrary to Article 6 UCPD or a misleading omission 
contrary  to  Article  7  UCPD.  Namely,  the  review  site’s  active  creation  of  a  false  or 
misleading  overall  impression  about  its  nature  or  functioning  and  omission  of  material 
information  (i.e.  failing  to  inform  consumers  that  all  genuine  consumer  reviews  are  not 
published) may cause the average consumers reading the online reviews to continue using the 

294  OLG Düsseldorf, 19.02.2013, Az. I – 20 U 55/12. 
295  http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03992.html. 
296  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436238/Online_reviews_and_endorsements.pdf. 

127 

 
 
                                                            
online platform or to take a decision to contact a trader which they would not have taken had 
they known that negative reviews had been suppressed. According to the circumstances, the 
omission of genuine reviews could itself be a misleading omission.  

This  practice  could  also  be  contrary  to  the  requirements  of  professional  diligence  as 
provided  for  in  Article  5(2)  UCPD.  A  review  site’s  failure  to  publish  all  genuine  reviews 
without  making  consumers  aware  of  this  fact  in  a  clear  manner  could  be  contrary  to  the 
standard  of  special  skill  and  care  which  an  online  platform  providing  user  reviews  can 
reasonably be expected to exercise towards consumers. Consequently, in order to ensure that 
they comply with the UCPD, traders should either post both positive and negative reviews 
or clearly inform consumers that all relevant reviews are not posted.  

Another  commercial  practice  is  the  suppression  of  genuine  negative  reviews  as  a  result  of 
traders  forcing  consumers  and  review  sites  to  prevent  negative  reviews  about  them  from 
being published.297 

Such  practices  could  meet  the  definition  of  ‘misleading’  laid  down  in  Articles  6  and  7 
UCPD  if,  for  example,  the  trader  bans  negative  online  reviews  to  manage  its  reputation  so 
that negative reviews about it are not displayed. In such a situation, the overall presentation 
of the nature of the trader and the characteristics of its products can be deceptive, even 
if  the  remaining  positive  reviews  were  true.  This  deception  could  be  likely  to  cause  the 
average consumer (who has not yet been in contact with this trader) to select this trader rather 
than  a  competitor  who  has  not  engaged  in  such  unfair  commercial  practices. This  practice 
could also be assessed as contrary to professional diligence as provided for in Article 5(2) 
UCPD.   

For example: 

 

In  an  ongoing  case,  the  US  Federal  Trade  Commission  has  challenged  terms  and 
conditions  used  by  a  trader  under  which  consumers,  when  buying  a  product,  had  to 
agree  not  to  publish  negative  reviews  if  they  were  not  satisfied  with  the  product.  In 
addition,  if  the  consumer  published  negative  reviews,  the  trader  would  take  away  a 
discount that the consumer had been given when purchasing the product, significantly 
increasing the price the consumer had to pay. To enforce these terms and conditions, 
the trader even filed lawsuits against consumers that published negative reviews. The 
Federal  Trade  Commission  is  arguing  that  such  commercial  practices  distort  the 
information environment by not letting potential new buyers of the product know about 
negative  experience  from  previous  buyers,  potentially  causing  new  buyers  to  take  a 
transactional decision they would not have taken otherwise.298 

A connection between a provider of a user review tool presenting a user review about a 
product and the trader that supplies the product must be fully disclosed if the connection 

297  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436238/Online_reviews_and_endorsements.pdf. 
298  https://www.ftc.gov/news-events/press-releases/2015/09/ftc-sues-marketers-who-used-gag-clauses-monetary-threats-

lawsuits?utm_source=govdelivery. 

128 

 
 
 
 
 
                                                            
could  materially  affect  the  weight  or  credibility  of  the  review  i.e.  if  the  connection  cannot 
reasonably be expected by the average consumer. This should enable consumers to realise that 
such reviews may possibly not be as impartial as unsponsored reviews regarding the quality 
of the product. 

The relevant provisions in this situation are:  

-  Article  6(1)(c)  of  the  UCPD,  which  prevent  traders  from  misleading  consumers  on 
the motives for the commercial practices and the nature of the sales process; and  

-  Article  7(2)  and  point  No  22  of  Annex  I,  which  prevent  traders  from  hiding  the 

commercial intent of the commercial practice. 

-  No 11 of Annex I, which prevents using editorial content in the media to promote a 

product where a trader has paid for the promotion without making that clear.  

5.2.9 

Social media 

Social  media  such  as  Facebook,  Twitter,  YouTube,  WhatsApp,  Instagram  and  blogs  enable 
users to create profiles and communicate with each other, including sharing information and 
content, such as text, images and sound files. A social medium may be a chat room, a blog or 
a social network.299 

Some  social  media  have  become  platforms  for  advertising,  product  placement  and 
consumer  reviews.  Therefore,  they  can  present  increased  risks  for  hidden  and  misleading 
advertising,  given  that  commercial  elements  are  often  mixed  with  social  and  cultural  user-
generated content. Furthermore, consumers could experience social media just as services for 
the exchange of information between consumers and may not be aware that traders use social 
media for marketing purposes. For this reason, the prohibitions in Article 7(2) and point No 
22  of  Annex  I  UCPD  against  hidden  marketing  are  particularly  relevant.  A  similar 
requirement stems from Article 6(a) of the e-Commerce Directive. 

On the one hand, social media platforms can qualify as "traders" in their own right, under the 
UCPD.  On  the  other  hand,  social  media  are  often  used  by  third  party  traders  to  engage 
directly in unfair commercial practices towards consumers.      

Indeed, a wide variety of commercial practices take place in social media. 

For example: 

  A  trader  encourages  users  to  share  marketing  material  with  other  users  by  offering 

price reductions on its marketed products as a reward. 

  A blogger is given a free vacation by a tour operator in exchange for posting positive 

reviews on the vacation and the tour operator. 

  A  celebrity  (music,  sports)  is  given  an  endorsement  deal  in  exchange  for  posting 

299  See  also  the  definition  in  the  Position  of  the  Nordic  Consumer  Ombudsmen  on  social  media  marketing  of  3  May  2012: 
http://www.consumerombudsman.dk/~/media/Consumerombudsman/dco/Guidelines/Position%20of%20the%20Nordic%20Consumer%
20Ombudsmen%20on%20social%20media%20marketing.pdf. 

129 

 
 
 
                                                            
pictures of bought products such as sneakers  

National enforcement authorities have identified a number of issues in relation to social media 
and EU consumer and marketing law, such as: 

  commercial practices put in place by social media platforms, including facilitating and 
selling paid ‘likes’ and sponsored reviews, blogs and accounts to third party traders;  

  possibly unfair standard contract terms used by social media platforms; 

  social  media  services  being  presented  to  consumers  as  ‘free’  when  they  require 

personal data in exchange for access; 

  commercial  practices  put  in  place  by  third  party  traders  through  social  media 
platforms,  including  hidden  marketing,  fake  or  misleading  user  reviews,  direct 
exhortations to children, spam and subscription traps. 

The  distinction  between  third  party  traders  and  other  social  media  users  can  sometimes  be 
blurred. 

For example: 

  The Guidance on Labelling of Marketing in Social Media by the Norwegian 

Consumer Ombudsman300 reads: ‘You can comment on products that you have bought 
yourself  or  received  as  presents  from,  for  example  your  friends  or  your  boyfriend, 
without labelling the information as marketing, as long as you do not link the product 
to  an  advertising  network.  It  is  in  cases  where  both  you  and  the  advertiser  get  an 
advantage from your comments that you must label it as marketing, for example if you 
have  received  a  jacket  for  free  and  then  make  comments  about  the  jacket  it  in  your 
blog.’ 

Article 6 of the UCPD prevents traders from misleading consumers in relation to commercial 
practices  involving  the  use  of  systems  such  as  ‘likes’.  By  presenting  fake  ‘likes’  to 
consumers, a trader may mislead consumers about its own reputation or the reputation of its 
products  or  services,  possibly  causing  consumers  to  take  transactional decisions  they  would 
not have taken otherwise. 

If a trader posts fake reviews in the name of consumers (or engages e-reputation agencies 
to do) it will be acting contrary to point No 22 of Annex I of the Directive, which prohibits 
‘falsely representing oneself as a consumer’. 

300  Guidelines adopted in 2011; http://www.forbrukerombudet.no/asset/4474/1/4474_1.pdf 
in  June  2014, 

this  Guidance  document,  adopted 

An  updated  version  of 
http://www.forbrukerombudet.no/asset/5018/1/5018_1.pdf. 

is  currently  only  available 

in  Norwegian; 

130 

 
 
 
 
 
 
                                                            
Many users of social media are children and young people. Consequently, Article 5(3) of the 
UCPD  can  be  relevant  as  a  legal  basis  for  protecting  ‘a  clearly  identifiable  group  of 
consumers who are particularly vulnerable’. This reinforces the general requirement of the 
UCPD to clearly indicate the marketing purpose. In addition, point No 28 of Annex I, which 
prohibits direct exhortations to children, can also be relevant as a legal basis.     

Issues related to the marketing of products as "free" or similar are discussed in section 4.4 in 
the context  of point No 20 of  Annex I  and in  Section  3.4.1 as  regards omission  of  material 
information. If a social media platform does not inform consumers that their personal data 
will  be  processed  for  economic  purposes  it  could  be  argued  that  it  is  omitting  material 
information that the consumer needs to take an informed transactional decision. For such an 
omission to be unfair under Article 7 UCPD, it will have to be shown that it is likely to cause 
the average consumer to take a transactional decision he would not have taken otherwise.       

5.2.10  Collective buying platforms 

This  form  of  collaborative  e-commerce  allows  consumers  to  purchase  products  together  to 
obtain a more favourable price.  

If a group buying platform is run by a ‘trader’ who is running it for purposes relating to its 
business activities and engages in commercial practices vis-à-vis consumers, it will fall within 
the scope of the UCPD and will need to comply with the Directive's requirements. 

Based  on  Articles  6(1)  and  7  of  the  UCPD,  the  following  principles  should  apply  to  such 
collective buying platforms: 

  information they provide to consumers should be clear and accurate regarding the 

scope of the offer; 

  information  they  provide  about  the  quality  of  the  product/service  obtained 
following a group purchase should not be misleading. Notably, the quality should 
not  be  lower  than  an  offer  at  a  normal  price,  unless  consumers  are  clearly 
informed that this is the case. 

Online  platforms  offering  group  buying  services  should  provide  clear  and  accurate 
information on the offer’s content and price and on the provider of the product/service. The 
conditions  under  which  consumers  can  benefit  from  the  product  (e.g.  minimum  number  of 
buyers, duration of the offer) should be clearly spelled out. In addition, consumers should not 
be  misled  on  the  specific  advantage  offered  by  the  platform;  in  other  words,  the  product  or 
service  offered  should  be  of  the  same  quality  as  a  product  or  service  bought  under  normal 
conditions. 

131 

 
For example: 

  An offer for a specific treatment in a wellness centre is advertised at a 50 % 

reduction if bought from a group buying platform. Such an offer is likely to fall under 
Article  6(1)(b)  and  (d)  (as  a  misleading  indication  of  a  price  advantage)  if  the 
treatment  offered  lasts  only  30  minutes  whereas  at  full,  ordinary  price  it  lasts  60 
minutes, unless consumers were clearly informed otherwise. 

For example: 

  On 1 July 2013, the Consumer Rights Protection Centre in Latvia published a 

guidance document on fair commercial practices for group buying301, which clarifies: 

- in relation to contact details: 

‘[…]  the  author  of  a  commercial  practice  must  provide,  according  to  applicable  laws, 
comprehensive  and  truthful  information  about  itself  as  the  seller  of  coupons  and,  given 
the  special  nature  of  group  buying  portals,  about  the  sellers  of  the  products  and  the 
providers of the services offered.’ 

- in relation to the price: 

‘In the case of package offers, i.e. a combination of several products or services, when the 
price  may  vary  depending  on  the  number/volume  of  products  or  services  acquired,  the 
total  package  price  must  be  indicated  to  avoid  any  impression  that  a  larger  number  of 
products or services may be acquired at a lower price when they may not.’ 

5.2.11  Dynamic pricing 

Dynamic pricing (also called real-time pricing) means changing the price for a product in a 
highly flexible and quick manner in response to market demands. For example, in France, the 
national  data  protection  supervisory  authority302  and  the  consumer  enforcement  authority303 
recently checked French travel websites304 and found evidence of dynamic pricing practices, 
in  particular  prices  for  airline  and  train  tickets  that  differed  depending  on  the  time  of  day 
when the consumer makes a reservation. 

Under  the  UCPD,  traders  can  freely  determine  the  prices  they  charge  for  their  products  as 
long  as  they  adequately  inform  consumers  about  total  costs  and  how  they  are  calculated 

301 

http://www.ptac.gov.lv/sites/default/files/docs/vadlinijas_godigas_komercprakses_istenosanai_kolektiva_iepirksanas_joma_01_07_2013
_new.pdf 

302  Commission nationale de l’informatique et des libertés – CNIL. 
303  Direction générale de la concurrence, de la consommation et de la répression des fraudes – DGCCRF. 
304  See  press  release  of  27  January  2014.  The  checks  on  French  websites  did  not  find  evidence  of  prices  changing  on  the  basis  of  the 

location of IP addresses, which is discussed in the following section on price discrimination. 

132 

 
 
 
 
 
 
 
 
 
 
 
                                                            
(Articles  6(1)(d)  and  7(4)(c)  UCPD).  However,  in  some  circumstances,  dynamic  pricing 
practices could meet the definition of ‘unfair’ under the UCPD. 

For example: 

  A dynamic pricing practice where a trader raises the price for a product after 

a consumer  has  put  it in his  digital shopping cart  could be considered a misleading 
action under Article 6(1)(d) UCPD. 

5.2.12  Price discrimination 

Price  discrimination  is  where  a  trader  applies  different  prices  to  different  groups  of 
consumers for the same goods or services. 

As  with  dynamic  pricing,  under  the  UCPD  traders  are  free  to  determine  their  prices  if  they 
adequately inform consumers about those prices and how they are calculated.   

However,  the  Services  Directive305  includes  a  general  prohibition  on  price  discrimination 
based on nationality and place of residence. 

Article 20 of the Services Directive: 

 ‘the general conditions of access to a service, which are made available to the public at large 
by  the  provider’  may  not  ‘contain  discriminatory  provisions  relating  to  the  nationality  or 
place of residence of the recipient’. 

However, Article 20 of the Services Directive does not preclude ‘the possibility of providing 
for  differences  in  the  conditions  of  access  where  those  differences  are  directly  justified  by 
objective criteria’. 

In  addition,  direct  or  indirect  price  discrimination  based  on  the  nationality  of  the  final 
customer or its residence or on the place of establishment of carriers or ticket vendors within 
the  Union  is  explicitly  prohibited  by  several  sector-specific  pieces  of  EU  legislation.  This 
applies to air transport,306 maritime transport307 and bus and coach transport.308 

In a ‘Fitness Check for the Internal Aviation Market’, adopted by the European Commission 
on 6 June 2013,309 it was found that 26 % of airlines practised price discrimination for airline 
services  based  on  the  consumer’s  place  of  residence.  Other  airlines  usually  applied  service 

305  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.  
306  Cf. Article 23(2) 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.  

307  Cf. Article 4(2) of Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the 

rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004. 

308  Cf. Article 4(2) of Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the 

rights of passengers in bus and coach transport.  

309  Cf. Commission Staff Working Document SWD(2013) 208 final,  Report on the suitability of economic regulation of the European air 

transport market and of selected ancillary services, page 81.  

133 

 
 
 
 
 
 
 
                                                            
fees  only  to  sales  in  particular  Member  States  or  enabled  residents  of  particular  Member 
States to avoid payment fees. 

5.2.13  Personalised pricing 

The possibility of tracking and profiling consumer behaviour310 enables traders to personalise 
and  target  advertising  and  offers  for  specific  consumers  in  the  form  of  ‘personalised 
pricing’. 

For example: 

  An  online  trader  is  building  ‘shopping  profiles’  based  on  the  purchasing 

power  of  its  online  customers,  enabling  the  trader  to  adapt  its  prices.  A  customer 
categorised  as  having  ‘higher  purchasing  power’  could  be  recognised  either  by  the 
computer’s IP address or other means, such as a cookie, when the consumer visits the 
trader’s website from its home computer. Prices proposed to this customer could be, 
for  example,  on  average  10 %  higher  than  for  a  new  customer  or  a  customer 
categorised as having ‘lower purchasing power’. 

As  with  dynamic  pricing  and  price  discrimination,  under  the  UCPD  traders  are  free  to 
determine  their  prices  if  they  duly  inform  consumers  about  the  prices  or  how  they  are 
calculated.   

Traders that track and collect consumer preferences by using online personal data qualify as 
‘data  controllers’  under  the  Data  Protection  Directive  and  must  comply  with  EU  rules  on 
data  protection.  This  includes  the  requirement  that  the  data  controller  must  stop  sending 
direct marketing if the individual receiving it objects to its personal data being processed for 
that purpose (Article 14(b)). In addition, Article 15 of the Data Protection Directive grants the 
right to every person not to be subject in principle to a decision which produces legal effects 
concerning  him  or  significantly  affects  him  and  which  is  based  solely  on  automated 
processing  of  data  intended  to  evaluate  certain  personal  aspects  relating  to  him,  such  as  his 
performance at work, creditworthiness, reliability, conduct, etc.  

As from the date of applicability of the new rules of the General Data Protection Regulation, 
foreseen  in  2018,  which  will  replace  Directive  95/46/EC,  they  will  apply  to  the  processing, 
also by a controller or processor not established in the Union, of personal data of subjects who 
are  in  the  Union,  whenever  (i)  the  processing  activities  are  related  to  either  the  offering  of 
goods or services, irrespective of whether a payment by the data subject is required and (ii) 
the processing activities relate to the monitoring of their behaviour as far as their behaviour 
takes place within the Union.   

310  A  related  technique  is  ‘online  behavioural  advertising’  (OBA).  Self-regulatory  principles  for  OBA  have  been  developed  at  European 
level with the European Advertising Standards Alliance’s (EASA) Best  Practice Recommendation on Online Behavioural Advertising 
(12 April 2011). Under the EASA, OBA is ‘a technique to serve online advertisements that are targeted to the users’ potential interests. 
In order to be able to target ads, OBA companies try to predict a user’s interests and preferences based on the user’s past website viewing 
record, for example in the form of data about page views or user clicks. This information is collected over time and across multiple web 
domains rather than from a single website. By definition, an OBA company, often known as an ‘ad network’, collects information on 
viewing behaviour from websites that it does not own or operate.’   

134 

 
 
 
 
                                                            
In  addition,  the  General  Data  Protection  Regulation  defines  'profiling'  as  "any  form  of 
automated processing of personal data consisting of the use of those data to evaluate certain 
personal  aspects  relating  to  an  individual,  in  particular  to  analyse  or  predict  aspects 
concerning  that  individual's  performance  at  work,  economic  situation,  health,  personal 
preferences,  interests,  reliability,  behaviour,  location  or  movements".  The  right  of  the 
individual  not  to  be  subjected  to  automated  individual  decision  making  will  then  extend  to 
such profiling. 

When  sending  direct  marketing  and  commercial  communications  to  consumers  over 
electronic communications networks, traders must also comply with Article 6, 9 and 13 of the 
e-Privacy  Directive.311  This  includes  the  requirement  that  the  data  controller  must  stop 
sending direct marketing if the individual receiving it withdraws his consent.  

Also under Article 5(3) of the e-Privacy Directive, the use of ‘cookies’ or similar devices on 
users’ terminal equipment for obtaining information through such devices are permitted only 
with the users’ informed consent. 

Personalised pricing/marketing could be combined with unfair commercial practices in 
breach of the UCPD. 

For example: 

 

If the information gathered through profiling is used to exert undue influence 
e.g. a trader finds out that the consumer is running out of time to buy a flight ticket 
and falsely claims that only a few tickets are left available. This could be in breach of 
Article 6(1)(a) and Annex I No 7 UCPD. 

Furthermore, under Articles 8 and 9 of the UCPD, marketing based on tracking and profiling 
must not involve aggressive commercial practices. Point No 26 of Annex I (see also Section 
4.5  on  Persistent  marketing  by  a  remote  tool)  prohibits  making  persistent  and  unwanted 
commercial communications to consumers (‘spam’). 

Having  said  that,  personalised  pricing  policies  based,  for  instance,  on  the  customer's 
purchasing  power/wealth  as  perceived  by  a  trader  do  not  currently  seem  to  be  widespread 
outside of loyalty programmes and price advantages, which are normal business practices, and 
prices  that  vary  by  distribution  channel  used  (e.g.  online  as  opposed  to  brick  and  mortar 
shops). In  the few cases  reported, the companies concerned changed their  practices because 
they  generated  consumer  distrust  in  the  trader  or  brand  in  question.  For  example,  on 
17 May 2013, the UK Office of Fair Trading (now the Competition and Markets Authority — 
CMA)  published  a  report  on  personalised  pricing  online.312  The  report  found  ‘that  pricing 

311  Directive  2009/136/EC  of  the  European  Parliament  and  of  the  Council  of  25  November  2009  amending  Directive  2002/22/EC  on 
universal  service  and  users’  rights  relating  to  electronic  communications  networks  and  services,  Directive  2002/58/EC  concerning  the 
processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on 
cooperation between national authorities responsible for the enforcement of consumer protection laws, OJ L 337, p.20.  

312  Personalised 

OFT 
http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/shared_oft/markets-work/personalised-
pricing/oft1489.pdf. 

Transparency 

Increasing 

Improve 

Pricing, 

Trust, 

to 

1489; 

135 

 
 
 
 
                                                            
decisions are influenced by analysis of aggregated information collected by consumers’,  but 
also that ‘our evidence indicates that businesses are not using information about individuals 
to set higher prices to them’.313  

The UK report includes the following case study on personalised pricing:314 

  "Many respondents referred to what happened to Amazon.com in the USA in 

2000. At the time a company spokesperson described it as ‘a very brief test to see how 
customers  respond  to  various  prices’.  One  man  recounted  how  he  ordered  a  DVD, 
paying  $24.49.  The  next  week  he  went  back  to  Amazon  and  saw  that  the  price  had 
jumped to  $26.24. As an experiment,  he stripped his  computer of the electronic tags 
that identified him to Amazon as a regular customer. Then the price fell to $22.74. It is 
widely reported that customer criticism led to Amazon offering refunds to DVD buyers 
who bought at the higher price. In our own research, we found no evidence of prices 
being  set  on  the  basis  of  individual  consumer  profiles  by  Amazon  or  any  other 
company,  as  opposed  to  a  broader group,  or  type,  of  consumers.  However,  we  have 
seen that the technology exists to do this." 

5.2.14  Use of geo-localisation techniques  

When shopping in/from another Member State, consumers are sometimes subject to outright 
refusals  by  traders  to  sell,  or  to  price  discrimination,  based  on  the  place  of  residence  or 
nationality of the consumer. Such practices can take place online and when shopping over the 
counter. Traders may use geo-localisation techniques, e.g. on the basis of the consumer's IP 
address,  residence  address,  country  of  issue  of  credit  cards  etc.,  to  either  deny  the  sale  of  a 
product to the consumer, to automatically reroute him or her to a local webstore or for price 
discrimination purposes. 

Traders may have different reasons for denying access to a product or to apply different prices 
based  on  geographical  information.  As  regards  the  denial  of  sale  or  rerouting,  according  to 
Article 8(3) of the Consumer Rights Directive, traders must inform consumers about delivery 
restrictions at the latest at the beginning of the ordering process. On the basis of Article 7(5) 
UCPD,  this  information  requirement  qualifies  as  "material"  under  the  UCPD.  On  the  other 
hand, if a trader complies with the information requirement of Article 8(3) CRD, such denial 
of sale or  rerouting is  not  an unfair commercial practice  per  se under the UCPD.  However, 
according to the facts of the individual case, such practices could lead to unfair commercial 
practices.  

On 25 May 2016 the European Commission adopted a legislative proposal to end unjustified 
geo-blocking  and  comprehensively  fight  discrimination  based  on  residence  or  nationality 
presented.315  

313  See pages 2 and 3 of the ‘Personalised Pricing, Increasing Transparency to Improve Trust’ report, OFT 1489, cited above. 
314  See page 13 of the ‘Personalised Pricing, Increasing Transparency to Improve Trust’ report, OFT 1489, cited above.  
315  See  the  proposal  for  a  Regulation  on  addressing  geo-blocking  and  other  forms  of  discrimination  based  on  place  of  residence  or 

establishment, or nationality within the Single Market.  

136 

 
 
 
 
 
                                                            
Furthermore,  such  practices  may  constitute  an  infringement  of  other  areas  of  EU  law  (e.g. 
Article 20 of the Services Directive and competition law316). As noted under section 5.2.3 on 
price discrimination, Article 20 of the Services Directive obliges Member States to ensure that 
companies  do  not  treat  consumers  differently  on  the  basis  of  their  place  of  residence  or 
nationality,  unless  justified  by  objective  criteria.  It  concerns  both  outright  refusals  to  sell, 
including automatic re-routing, and the application of different prices taking place online or 
offline.  

Travel and transport sector 

5.3 
Irregularities in the transport sector were found notably in the 2007 CPC Sweep317 on airline 
ticket selling websites, the 2012 Study on price transparency in the air transport sector and the 
2013  CPC  Sweep  on  websites  selling  air  travel  and  hotel  accommodation.  Irregularities 
included misleading price indications (e.g. prices excluding unavoidable charges) and lack of 
information on the availability of offers.  

More  recently,  problems  have  been  reported  in  the  car  rental  sector,  in  particular  over  the 
presentation of the offer, the product’s main characteristics and insurance policies. 

5.3.1  Cross-cutting issues 

The  UCPD  does  not  only  apply  to  the  trader  who  actually  provides  the  travel  and 
transport. Article 2(b) of the Directive expressly mentions, in the notion of trader, also ‘any 
other  person  acting  in  his  name  or  on  his  behalf’.  As  a  consequence,  information 
requirements laid down by Articles 6 and 7 are applicable not only to airlines, hotels or car 
rental  companies,  but  may  also  apply  to  intermediaries  –  such  as  comparison  tools  or 
metasearch websites – operating between them and consumers in the name or on the behalf of 
the trader providing the product. 

For example: 

  Not  only  the  airline  itself  but  also  the  online  travel  agent  offering  flight 

tickets  to  consumers318  in  the  name  of  the  airline  or  on  its  behalf  should  inform 
consumers  whether  luggage  is  included  in  the  price  for  the  flight  or  whether  it  is 
subject  to  an  extra  fee.  Both  should  also  inform  passengers  whether  flights  can  be 
rebooked or refunded. 

Article  7(4)  lists  certain  pieces  of  information  to  be  regarded  as  material  in  invitations  to 
purchase,  for  example,  for  a  flight  or  train  ticket,  accommodation  or  a  rental  car,  if  the 

316  See  Chapter  1.4.10  and  DG  Competition  Staff  Working  Document  on  geo-blocking  practices 

in  e-commerce: 

http://ec.europa.eu/competition/antitrust/ecommerce_swd_en.pdf 

317  A “sweep” is a systematic check carried out simultaneously in different Member States to investigate breaches of consumer protection 

law in the particular on-line sector. 

318  The  concept  of  "passenger"  is  broader  than  the  concept  of  "consumer"  and  only  the  consumer  of  transport  services  is  subject  to  the 

UCPD. The passengers who travel for professional reasons are covered by the sectorial regulations on passenger rights.  

137 

 
 
 
 
 
 
                                                            
information is not already apparent from the context. Failing to provide this information could 
in some cases be regarded as a misleading omission. The types of information covered by this 
point include in particular:  

- 

- 

- 

- 

- 

the product’s main characteristics;  

the trader’s identity;  

the price inclusive of taxes;  

the arrangements for payment;  

the complaint handling policy.  

Invitations to purchase are further discussed in Section 2.5. 

Article  7(4)(b)  requires  traders  to  provide  their  geographical  address  and  identity.  Under 
Article  7(5)  in  combination  with  Article  5(1)(c)  of  the  e-Commerce  Directive,  the  trader’s 
email address is also material information under the UCPD. This information should be easy 
to find (i.e. not in the general terms and conditions or on separate information pages/ links) 
and directly and permanently accessible. 

As regards complaint handling, under Article 7(4)(d) of the UCPD, it should be clear to the 
consumer whom to contact in case of queries or complaints. The consumer should be given 
clear instructions about how to complain in the event of a problem, for example through an 
email address and telephone number. 

For  questions  on  the  language  of  terms  and  conditions,  please  see  Section  3.4.7  on  the 
provision of certain information in another language. 

Price 

While there is a general consensus that the advertised price should include from the outset 
all  applicable  fees  and  charges,  a  2012  study  on  ‘Price  Transparency  in  the  air  transport 
sector’319  found  that  many  airlines  show  the  price  excluding  taxes,  fees  and  charges  and  a 
good  number  of  them  add  charges  they  describe  as  ‘optional’  but  which  are,  de  facto, 
unavoidable  (e.g.  free  means  of  payment  only  if  the  airline’s  credit  card  is  used).  This 
problem  of  ‘drip  pricing’  has  particularly  detrimental  repercussions  at  the  stage  where 
consumers compare prices to inform their decision320. 

Traders – including any intermediaries facilitating business to consumer transactions - should 
ensure  that  the  price  of  tickets  is  transparent  from  the  outset,  already  from  the  advertising 
stage as well as during the booking process. 

In particular, under Articles 6(1)(d) and 7(4)(c), the total price to be paid must at all times 
be  indicated  and  include  the  applicable  charges  and  taxes  which  are  unavoidable  and 

319  http://ec.europa.eu/transport/modes/air/studies/doc/internal_market/final_report_price_transparency.pdf. 
320  Due to the activity of national enforcement authorities, this practice is evolving. 

138 

 
                                                            
foreseeable  at  the  time  of  publication/booking,  including  payment  surcharges.  For  example, 
for air transport, those charges would include air fare or air rate as well as all applicable taxes, 
airport  charges  and  other  charges,  surcharges  and  fees,  such  as  those  related  to  security  or 
fuel.  

Prices  for  flights  or  hotel  rooms  may  change  very  rapidly.  For  example,  when  a  consumer 
looks  for  a  flight  ticket  on  the  platform  of  an  online  travel  agent  the  price  may  change 
between the moment the consumer starts searching for a ticket and the moment he decides to 
make a purchase. If such price changes are truly due to the dynamic nature of the market and 
thus outside of the control of the online travel agent, they will have an impact on the online 
travel agent's possibilities to ensure that the price it advertises is at all times fully correct. The 
rules  of  the  UCPD  suggest  that  traders  that  are  aware  of  the  possibility  of  sudden  price 
changes have to make this clear to the consumers when advertising prices.   

For example: 

  A  trader  offering  package  holidays  mentioned  the  price  of  an  insurance 
policy in the total price of a product. However, the insurance policy was not 
mandatory  but  optional.  The  Czech  Trade  Inspectorate’s  decision  to  qualify  such 
practice as misleading was confirmed by the Czech supreme administrative court.321  

  Charging tourists for supplementary fuel costs without indicating how this charge was 
calculated  and  without  providing  consumers  with  proper  documentation  was 
considered  to  be  a  misleading  omission,  a  misleading  action  and  an  aggressive 
practice under the UCPD by the Italian Antitrust Authority.322 

  A trader offering holiday flats omitted to indicate in the price mandatory costs such as 
cleaning costs, city taxes and additional service charges for booking. A German court 
of  appeal  found  this  practice  to  be  in  breach  of  professional  diligence  and  a 
misleading omission.323 

Information on optional charges should be prominently displayed324 and traders should not 
mislead consumers regarding the purchase of additional services. Optional costs may for 
instance be: the cost for a single room, non-compulsory insurance, choice of seat or checked 
luggage (as opposed to hand luggage)325.  

Consumers should be informed about the existence of non-mandatory costs in invitations to 
purchase and in any case at the latest at the start of the booking process.  

321  1 As 59/2001 – 61, Blue Style s.r.o. v Czech Trade Inspectorate, 22 June 2011. 
322  PS3083, Teorema Tour – Adeguamento costo carburante aereo, 26 August 2009. 
323  OLG Hamm, 06.06.2013, Az. I-4 U 22/13.  
324  The OFT’s position in its response to the airline surcharges super-complaint was that optional charges should be no more than 1 click 
see 

away 
http://webarchive.nationalarchives.gov.uk/20140402142426/http:/www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-
enforcement-completed/card-surcharges/  

headline 

price, 

from 

the 

325  In C-487/12, Vueling Airlines, 18 September 2014, the Court found that hand baggage must be considered, in principle, as constituting a 
necessary aspect of the carriage of passengers and that its carriage cannot, therefore, be made subject to a price supplement, on condition 
that  such  hand  baggage  meets  reasonable  requirements  in  terms  of  its  weight  and  dimensions,  and  complies  with  applicable  security 
requirements. 

139 

 
 
 
 
 
                                                            
It  should  also  be  made  clear  that  these  costs  are  optional,  and  consumers  should  not  be 
misled regarding their decision to purchase additional services.  

These  requirements  follow  in  particular  from  Articles  6(1)(b)  and  (d)  and  7(4)(a)  and  (c) 
UCPD.  Practices  that  contravene  these  principles  could,  depending  on  the  circumstances  be 
considered contrary to the requirements of professional diligence, cf. Article 5(2) UCPD.   

In  addition  to  the  rules  of  the  UCPD,  the  Consumer  Rights  Directive    precludes  the  use  of 
default options the consumer has  to reject in order to avoid additional payments rather than 
requesting the  consumer’s express consent to extra payments, such  as in  the case of pre-
ticked  boxes  on  websites.  Article  22  of  that  Directive  provides  that  ‘If  a  trader  has  not 
obtained the consumer’s express consent but has inferred it by using default options which the 
consumer is required to reject in order to avoid the additional payment, the consumer shall be 
entitled to reimbursement of this payment.’ 

Apart from cases of pre-ticked boxes there may be other cases where traders who market their 
services online offer  additional services  in  an unclear or  ambiguous  manner, such as  hiding 
the option of not booking any further services. Such commercial practices may be considered 
as misleading, aggressive or incompatible with professional diligence.  

Since such practices have been observed in particular in the air transport sector and given the 
existence of additional rules in that sector, examples are given under point 5.3.4. 

Package Travel 

5.3.2 
Directive 90/314/EEC326 on package travel, package holidays and package tours and the new 
Directive  (EU)  No  2015/2302327  on  package  travel  and  linked  travel  arrangements  contain 
provisions  on  the  combination  of  different  travel  services,  i.e.  carriage  of  passengers, 
accommodation,  rental  of  motor  vehicles328  and  other  tourist  services,  which  are  offered  to 
travellers.  

Directive  (EU)  No  2015/2302  inter  alia  regulates  the  pre-contractual  information  which 
traders have to give to travellers, including specific information on the services included in a 
package  and  the  total  price  of  the  package  inclusive  of  taxes  and,  where  applicable,  of  all 
additional  fees,  charges  and  other  costs.  Under  Directive  (EU)  No  2015/2302  traders  also 
have to inform travellers prominently whether the offered services constitute a package 
or only a linked travel arrangement, with a lower level of protection, and have to provide 
information  on  the  level  of  protection  applying  to  the  relevant  concept,  using  standardised 
information forms.  

326  Council Directive of 13 June 1990 on package travel, package holidays and package tours (90/314/EEC), OJ L 158 of 30.6.1990, page 

59. Directive 90/314/EEC is repealed with effect from 1 July 2018. 

327  Directive  (EU)  2015/2302  of  the  European  Parliament  and  of  the  Council  of  25  November  2015  on  package  travel  and  linked  travel 
arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and 
repealing Council Directive 90/314/EEC, OJ L 326, 11.12.2015, p. 1–33. The Member States are obliged to transpose Directive (EU) No 
2015/2302 by 1 January 2018 and to apply the transposition measures from 1 July 2018. 

328  Separate type of travel service only under Directive (EU) Ni 2015/2302. 

140 

 
                                                            
Traders are also obliged to inform travellers on optional or compulsory insurance to cover the 
cost of cancellation by the traveller or the cost of assistance in the event of accident, illness 
and death.  

Directive (EU) No 2015/2302 does not prevent the application of the UCPD to packages and 
linked travel arrangements in complement to the specific rules of Directives 90/314 and 
2015/2302,  notably  where  traders  market  additional  services  in  an  unclear  or  ambiguous 
manner.  

5.3.3 

Timeshare contracts 

Directive  2008/122/EC329  (the  ‘Timeshare  Directive’)  grants  certain  consumer  protection 
rights  regarding  timeshare,  long-term  holiday  products,  resale  and  exchange  contracts.  In 
particular, it lays down:  

-  strict rules on traders’ pre-contractual and contractual information obligations;  

- 

the consumer’s right to withdraw from the contract within 14 calendar days;  

-  a ban on advance payments during the withdrawal period;  

-  a ban on advertising or selling such products as an investment. 

The UCPD provides protection to consumers complimentary to the protection offered by the 
Timeshare Directive.  

The  research  undertaken  to  support  the  Commission  report  evaluating  the  Timeshare 
Directive330 points to certain recurrent problems in this sector, in particular in some popular 
holiday destinations in some EU Member States: 

  Misleading  information  before  the  contract  is  signed,  giving  buyers  the  wrong 
impression that the choice of available holiday places is practically unlimited or that 
the contract can be easily sold or exchanged. The consumer discovers only sometime 
after the signature of the contract that this information is incorrect. 

  Aggressive  selling  methods  consisting 

in  potential  buyers  being  put  under 
considerable  pressure,  for  instance  being  ‘locked’  in  a  room  where  endless 
presentations  take  place  and  from  where  they  are  sometimes  not  allowed  to  leave 
unless they sign the contract. 

The  UCPD  addresses  these  practices  through  its  provisions  on  misleading  actions  (in 
particular Article 6(1)(b)) and Articles 8 and 9 on aggressive commercial practices. 

Furthermore,  the  Commission  report  on  the  Timeshare  Directive  pointed  to  recurrent 
consumer problems with termination of their timeshare contracts. The Report concludes that 

329  Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of 

certain aspects of timeshare, long-term holiday product, resale and exchange contracts, OJ L 33, 3. 2.2009, p. 10.  

330  http://ec.europa.eu/justice/consumer-marketing/files/timeshare_report_2015.pdf. 

141 

 
                                                            
this aspect can be successfully addressed at the level of national law331 and better enforcement 
of relevant EU consumer law instruments. 

5.3.4 

Issues relevant in particular to air transport 

A flight’s ‘main characteristics’ within the meaning of Articles 6(1)(b) and 7(4)(a) UCPD 
should include the existence of stop overs and the precise indication of the flight’s place of 
destination. 

This  is  particularly  relevant  for  airlines  which  sometimes  organise  flights  from  airports 
located at a certain distance from a big city, but use the name of that city in their marketing. In 
some  cases,  such  commercial  practices  may  mislead  consumers  as  to  the  airport’s  actual 
location and be likely to cause consumers to take transactional decisions they would not have 
taken  otherwise.  Indeed,  some  consumers  could  prefer  paying  a  higher  price  in  return  for 
arriving at an airport closer to the city of destination. 

For example: 

 

Indicating a destination as ‘Barcelona’  when the airport is actually located 
in  the  city  of  Reus  which  is  100 km  from  Barcelona  is  likely  to  be  considered  as 
deceiving. 

On top of the requirements of Articles 6(1)(d) and 7(4)(c) UCPD to display the price inclusive 
of unavoidable and foreseeable fees and taxes, Article 23(1) of the Air Services Regulation 
provides 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, and charges,  surcharges  and 
fees which are unavoidable and foreseeable at the time of publication’.  

The Regulation also requires:  

- 

- 

- 

the indication of the final price to be broken down into components (e.g. air fare, 
taxes, airport and other charges and surcharges);  

that  optional  price  supplements  are  communicated  in  a  clear,  transparent  and 
unambiguous manner at the start of the booking process; 

that the customer’s acceptance of optional price supplements must be on an ‘opt-
in’ basis. 

Where travel service providers who market their services online breach the Consumer Rights 
Directive  or  the  Air  Services  Regulation,  aspects  of  the  infringing  practices  that  are  not 
regulated  by  these  sector-specific  legal  instruments  could  be  considered  unfair  under  the 

331  For  example  "The  OFT/CMA  decisions  on  this  issue  argued  that  on  inheritance  of  a  time  share,  in  accordance  with  the  applicable 
national law, a new contract is entered into, between the timeshare company and the new owner. That new contract would be governed 
by the Timeshare directive including the right of withdrawal. It would be a misleading omission to fail to inform about this cancellation 
right  (Art.  7  UCPD),  and  a  misleading  action  to  deny  that  it  exists  (Art.  6  UCPD)  [the  UK  authorities  have  been  asked  to  provide 
reference to the decision]". 

142 

 
 
 
 
                                                            
UCPD to the extent that they are likely to cause the average consumer to take a transactional 
decision he would not have taken otherwise. This must be assessed on a case-by-case basis. 

For example: 

  A trader uses pre-ticked boxes or offers additional services in an unclear or 

ambiguous  manner  by  hiding  the  possibility  not  to  book  any  further  services  or  by 
making it difficult for consumers not to select the additional services. By doing so, the 
trader could cause consumers to accept additional services which they would not have 
chosen otherwise. 

  The price of flight tickets does not in most cases include the price of travel insurance. 
The practice where consumers who do not wish to buy travel insurance are required 
to click on the ‘no insurance’ option when booking a flight ticket is likely to fall under 
Article  22  of  the  Consumer  Rights  Directive  and  Article  23(1)  of  the  Air  Services 
Regulation. Even before the entry into application of the Consumers Rights Directive, 
some national authorities had taken action against such practices under the UCPD. In 
particular,  in  a  decision  by  the  Latvian  Consumer  Protection  Authority  of 
23 October 2012,332  which  was  confirmed  by  Latvian  courts,333  the  use  of  pre-ticked-
boxes  by  an  airline  was  considered  as  unfair  for  being  aggressive  and  not  in 
compliance with professional diligence. Similarly, the practice where consumers who 
do not wish to purchase travel insurance are required when booking a flight ticket to 
select a ‘no insurance’ option hidden among a list of potential countries of residence 
had  been  considered  as  unfair  by  the  Italian  Antitrust  Authority334,  because  it  was 
incompatible with professional diligence (Article 5(2) UCPD) or misleading (Article 6 
or 7). 

The information requirements of the Air Services Regulation qualify as material information 
under Article 7(5) UCPD. They add to the UCPD requirements under Article 7(4) as regards 
information about the total price of the flight ticket including whether consumers need to pay 
a development  fee at the  departing/arriving airport. In  addition it should be recalled that, as 
discussed in Section 1.4.1, where sector-specific or other EU law is in place and its provisions 
overlap  with  the  provisions  of  the  UCPD,  the  corresponding  provisions  of  the  lex  specialis 
will prevail.  

Information  about  mandatory  fees  to  be  paid  after  the  booking  process,  for  instance 
directly  at  the  airport  (e.g.  development  fee  levied  for  all passengers departing  from  certain 
airports  e.g.  in  Ireland  and  England)  should  be  prominently  displayed  by  the  transport 
carrier or the travel agent at the start of the booking process. 

If airlines or intermediaries selling flight tickets link the cost of the payment surcharge to the 
means of payment used, the initial price should include the cost of the most common method 

332  CRPC decision No.E03-PTU-K115-39 of 23.10.2012 against AirBaltic. 
333  Judgments of the Riga Regional Court of 11.03.2014 in Case No 133051012 and of the Administrative Regional Court of 17.02.2015 in 

Case No 2015.03.10. 

334  Autorità Garante della Concorrenza e del Mercato, decision of 20 December 2013, PS7245 – Ryanair – Assicurazione Viaggio. 

143 

 
 
 
 
 
                                                            
of payment335. When such surcharges cannot be calculated in advance, consumers should be 
properly informed about the manner in which the price is calculated or about the fact that they 
‘may be payable’. 

For example: 

 

If  paying  with  an  airline’s  loyalty  card  incurs  a  cost  of  €  1.5,  while  paying 
with a credit card costs € 6, the price indicated in the invitation to purchase and at the 
start  of  the  booking  process  should  include  the  price  of  the  credit  card.  Moreover, 
most consumers will probably not be able to pay with the airline’s loyalty card. 

In addition, Article 19 of the Consumer Rights Directive prohibits traders from charging the 
consumer fees for using a particular means of payment that exceed the cost borne by the 
trader  for  the  use  of  such  means.  According  to  the  Consumer  Rights  Directive  guidance 
document  issued  by  DG  Justice  and  Consumers,336  Article  19  of  the  Consumer  Rights 
Directive  should  apply to  all  kind  of  fees  which  are  directly  linked to  a  means  of  payment, 
regardless of how they are presented to consumers. 

For example: 

  Fees  referred  to  as  administration,  booking  or  handling  fees,  which  are 

commonly  used  in  the  online  ticketing  sector,  especially  by  airlines  and  ferry 
companies, and also in online sales of tickets for events, should be covered by Article 
19 if they can be avoided by using a specific means of payment. 

Where  traders  advertise  a  specific  flight  ticket,  they  should  also  indicate  the  cancellation 
policy that applies to that ticket (e.g. whether there is no refund or whether it is possible to 
change  tickets).  This  is  particularly  relevant  where  administrative  fees  charged  by  the  air 
carrier/travel agent to the consumer for cancelling the ticket amount to the actual cost of the 
ticket itself. When cancellation fees charged by airlines are even higher than the price paid for 
the ticket, claims by the trader that cancellation is possible could be misleading. 

Also,  procedures  put  in  place  should  not  make  it  difficult  to  reclaim  taxes  and  charges  no 
longer  due.  Otherwise,  this  could  amount  to  a  lack  of  professional  diligence  within  the 
meaning of Article 5(2) and an aggressive practice under Articles 8 and 9, in particular Article 
9(d). 

Issues  related  to  price  discrimination  observed  in  the  air  transport  sector  are  discussed  in 
section 5.2.3. 

335  See 

undertakings 

UK 
http://webarchive.nationalarchives.gov.uk/20140402142426/http:/www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-
enforcement-completed/card-surcharges/  

complaints 

following 

airlines 

from 

the 

in 

at 

336  http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf 

144 

 
 
 
 
 
 
                                                            
5.3.5 

Issues specific to car rental 

European  consumer  protection  authorities,  acting 
the  Consumer  Protection 
Cooperation (CPC) Network, carried out a joint enforcement action on car rentals in 2014 
and  2015.  This  was  a  reaction  to  a  steady  increase  in  consumer  complaints  on  car  rental 
services booked in another country — from about 1 050 cases in 2012 to more than 1 750 in 
2014 — as reported by European Consumer Centres, 

through 

A  dialogue  was  set  up  between  CPC  authorities,  led  by  the  UK  Competition  and  Markets 
Authority, and five major car rental companies operating in the EU. 

The  companies  pledged  to  better  align  current  car  rental  practices  to  the  requirements  of 
consumer legislation set out by the UCPD, the Consumer Rights Directive and the Directive 
on Unfair Terms in Consumer Contracts.337 

Traditionally, car rental companies provide vehicles with a full tank and require consumers 
to  return  the  vehicle  with  a  full  tank  after  rental.  However,  consumers  complained  that 
some traders make consumers pay an additional cost for the full tank when taking possession 
of the vehicle and then expect the consumers to return the car with an empty tank, without 
providing any reimbursement if there is still fuel in the tank when the car is returned. 

Under the UCPD, such commercial practice cannot be considered unfair per se. However, 
traders will need to comply with the  information requirements of Articles 6 and 7  of the 
Directive.  When  car  rental  companies  rent  a  vehicle  with  a  full  tank,  information  that  the 
consumer will have to pay for the fuel ahead could in some cases be considered as material 
information on the basis of Articles 6(1)(b) and (d), 7(1) and 7(4)(a) and (c). The cost will be 
likely  to  qualify  as  non-optional  and  thus  be  part  of  the  total  price  of  the  product  under 
Articles 6(1)(d) and 7(4)(c) of the Directive, information on which must be provided from the 
beginning of the booking process. 

A commercial practice by which consumers have to pay for significantly more fuel than they 
actually use could also in some circumstances be contrary to the requirements of professional 
diligence laid down in Article 5(2) UCPD. 

For example: 

The duration of the rental period and the local situation could be taken into 
account when assessing whether the practice of charging consumers for the full tank 
is  unfair.  For  example, the fact  that  a vehicle is rented for a short time (e.g. two  or 
three  days)  or  the  geographical  location  (e.g.  a  car  rented  on  a  small  island)  could 
make it unlikely that the consumer will be able to empty the tank. 

Under  Articles  6(1)(b)  and  (d)  and  7  (4)(a)  and  (c),  consumers  should  be  clearly  informed 
about the main characteristics and the price of the rental service. The main characteristics 

337  A press release from the European Commission on the outcome of this enforcement action is available at:  http://europa.eu/rapid/press-

release_IP-15-5334_en.htm?locale=EN. 

145 

 
 
 
 
                                                            
and the price of a car rental contract could, for example, include information about the type of 
vehicle,  the  costs,  the  extent  of  waivers  and  excesses  and  possible  options  (such  as  winter 
tyres and child seats). 

For example: 

 

 

It could be misleading for a trader to claim ‘0 liability’ if, in fact, an excess 
will always apply to the consumer in the event of damage, even at a small cost. 

It  could  be  misleading  to  claim  ‘full  insurance  included’  when,  for  example,  the 
insurance does not cover damage to the roof and windshield. 

Car rental companies should also take specific national or local requirements into account. 

For example: 

  German law requires all vehicles to be equipped with snow tyres in winter. A 

company  offering  car  rental  in  Germany  during  the  winter  period  should  provide 
vehicles  with snow tyres. If snow tyres involve an additional  cost, consumers  should 
be informed about this non-optional cost right at the start of the booking process. 

5.4 

Financial services and immovable property 

Article 3(9) 

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. 

Recital 9 

‘financial  services  and  immovable  property,  by  reason  of  their  complexity  and  inherent 
serious risks, necessitate detailed requirements, including positive obligations on traders. For 
this reason, in the field of financial services and immovable property, this Directive is without 
prejudice to the right of Member States to go beyond its provisions to protect the economic 
interests of consumers’. 

5.4.1  Cross-cutting issues 

In  explanation  of  the  rationale  behind  Article  3(9)  of  the  Directive,  the  2013  Commission 
Report on the application of the Directive338 noted that:   

338  See http://ec.europa.eu/justice/consumer-marketing/files/ucpd_report_en.pdf, section 3.4.3.  

146 

 
 
 
 
 
 
 
 
  
 
 
 
 
 
                                                            
‘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.’ 

It follows from Article 3(9) UCPD that its rules provide for minimum harmonisation only 
for  financial  services  and  immovable  property.  Member  States  can  therefore  adopt  more 
restrictive or prescriptive national rules as long as these rules comply with EU law. 

For example: 

  Member  States  can  adopt  more  detailed  information  requirements  for 

financial and immovable property products. 

In  the  Citroën  Belux  case,339  the  Court  ruled  that  Member  States  may  lay  down  a  general 
prohibition on combined offers made to consumers where at least one of the components is 
a financial service. In this case, the combined offer made by Citroën was the inclusion of six 
months’ free comprehensive insurance with the purchase of a new Citroën car. Furthermore 
the Court clarified that Article 3(9): 

‘[…] does not impose any limit as regards how stringent national rules may be in that 
regard  or  lay  down  any  criteria  regarding  the  degree  of  complexity  or  risk  which 
those services must involve in order to be covered by more stringent rules.’340 

The  Commission’s  Study  on  how  the  UCPD  applies  to  financial  services  and  immovable 
property341 showed that the exemption has been widely used by Member States. The study 
reveals  that  most  of  these  additional  rules  consist  of  sector-specific  pre-contractual  and 
contractual  information  obligations.342  It  also  found  that  a  significant  number  of  bans 
predominantly  concern  direct  selling  and  promotional  practices,343  practices  that  take 
advantage of particular vulnerabilities,344 or the prevention of conflicts of interest.345 

339  Case C-265/12, Citroën Belux NV v Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF), Judgment of 18 July 2013. 
340  Case C-265/12, paragraph 25. 
341  Study on the application of the Unfair Commercial Practices Directive to financial services and immovable property conducted on 
behalf of the European Commission, DG Justice 2012, available at: http://ec.europa.eu/justice/consumer-marketing/document. 

342 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. For immovable property, information requirements related to the purchase of a property, the transaction itself, the real 
estate agent and construction contracts. 

343  E.g. prohibition of cold calling, unsolicited emails, 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. 

344  E.g. prohibition of usurious credit in most 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. 

345  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 a credit insurance provider other than the one provided by the bank itself when the level of 
guarantee offered is similar. 

147 

 
 
 
 
                                                            
The  Commission  Report  on  the  application  of  the  UCPD  noted  that  although  extensive 
national  rules  exist,  the  UCPD  has  been  cited  as  the  legal  basis  in  at  least  half  of  cases 
concerning unfair practices in the fields of financial services and immovable property. 

Article  5(2)(a)  UCPD  on  the  requirements  of  professional  diligence  seems  particularly 
relevant  to  traders  acting  towards  consumers  within  the  fields  of  immovable  property  and 
financial  services.  If  the  trader  does  not  act  with  the  standard  of  skill  and  care  which  can 
reasonably  be  expected  from  a  professional  within  these  fields  of  commercial  activity,  the 
consumer might suffer significant economic consequences.   

The most commonly reported unfair practices (within the meaning of the UCPD) in relation to 
both  financial services  and immovable property concern  a  lack of essential information at 
the advertising stage and misleading descriptions of products.346 

5.4.2 

Issues specific to immovable property 

Whilst immovable property is traditionally regulated at national level, some important aspects 
thereof are, since March 2016, regulated at EU level347. The UCPD’s general rules typically 
complement both sector-specific EU law, as well as national, sometimes stricter, rules.  

There are some issues specific to the application of the Directive to this sector. Indeed, many 
consumers invest in real estate as an alternative to a pension fund. They buy a property with a 
view  to  letting  it  and  receive  rent  instead  of  receiving  interest  as  they  would  have  done  if 
investing  in  a  financial  product.  This  raises  questions  as  to  how  the  notion  of  ‘consumer’ 
applies to real estate buyers.  

Under Article 2(a) of the Directive, any natural person who is acting for purposes which are 
outside his trade, business, craft or profession will qualify as a consumer. Consequently, the 
fact  that  a  natural  person  buys  an  immovable  property  for  investment  purposes  should  not 
affect  his  status  as  a  consumer,  as  long  as  this  is  done  outside  the  person’s  professional 
activities.  Therefore,  the Directive will apply and protect, for instance,  such  a buyer who is 
misled by a real estate developer over the purchase. 

For example: 

  A teacher in Germany decides to buy two flats in a holiday complex in Spain 

in order to rent them to other people and, at a later point in time, retire in Spain. As 
long  as  he does  this  outside his professional  activities, he will qualify as  a consumer 
under the Directive in relation to his flats in Spain. 

The notion of ‘trader’ as it applies to non-professional landlords is also interesting. Under 
Article 2(b) of the Directive, any natural or legal person qualifies as a trader if he is acting for 
purposes relating to his trade, business, craft or profession. Consequently, the mere fact that 
a person lets an apartment or a house to somebody else should not automatically qualify him 

346  COM(2013) 139 final, section 3.4.3. 
347  Directive 2014/17/EU on Mortgage Credit entered into force on 21 March 2016.  

148 

 
 
 
 
                                                            
as  a  trader  vis-à-vis  his  tenant,  if  this  is  not  his  professional  activity.  On  the  other  hand, 
however, if a person receives an essential part of his income from renting apartments to other 
people, the person could in certain circumstances be considered a trader under the UCPD.    

For example: 

  The  UK  Guidance  for  lettings  professionals  on  consumer  protection  law348 

considers individual landlords as consumers in their relations with selling agents and 
suggests  that  landlords  take  a  cautious  approach  and  always  comply  with  the 
obligations of traders in their contacts with their tenants. 

Because  of  the  importance  and  uniqueness  of  the  decision  that  consumers  make  when 
purchasing immovable property, traders should pay particular attention to complying with the 
information requirements in Article 6 and 7 UCPD.     

For example: 

  Consumers  that  have  bought  apartments  in  certain  property  development 

projects  have  found  that  after  the  buildings  were  finished,  the  apartments  were 
connected neither to a water supply nor to electricity. Information that this would be 
the  case  would  be  likely  to  qualify  as  material  information  in  relation  to  the  ‘main 
characteristics of the product’ both under Article 6(1)(b) and 7(4)(a) UCPD. The fact 
that  an  additional  service  would  be  necessary  to  connect  the  apartment  to  these 
facilitates could also be material under Article 6(1)(e).      

  The  surface  area  of  an  immovable  property  could  qualify  as  material  information 

under Articles 6(1)(a), 6(1)(b) and 7(4)(a). 

  The  price  of  the  property  including  VAT  and  all  unavoidable  charges,  such  as  the 
selling  agent  or  broker’s  commission,  would  be  material  information  under  Article 
7(4)(c). 

5.4.3 

Issues specific to financial services 

Since  a  robust  set  of  EU  sector-specific  legislation  exists  in  this  sector,  the  ‘safety  net’ 
character of the UCPD is particularly apparent here. 349 

Financial services are defined by Directive 2002/65/EC as  ‘any service of a banking, credit, 
insurance,  personal  pension,  investment  or  payment  nature’.350  Several  types  of  sector-

348  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/319820/Lettings_guidance_CMA31.PDF 
349  Article  12  of  the  Mortgage  Credit  Directive  prohibits  tying  practices  (see  page  17  of  the  Guidance).  Moreover,  recent  pieces  of  EU 
legislation contain specific provisions on cross-selling practices concerning payment accounts (see Article 8 of Directive 2014/92/EU the 
comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features, OJ L 
257, p. 216, 28.8.2014) and investment services (see Article 24 (11) of the Directive 2014/65/EU on markets in financial instruments, OJ 
L 173, p.349, 12.6.2014). In addition, the new Insurance Distribution Directive (EU) 2016/97 (OJ L 26, p. 19, 02.02.2016) contains rules 
on distance selling – see also http://europa.eu/rapid/press-release_IP-15-5293_en.htm. 

149 

 
   
 
 
 
 
 
 
 
 
                                                            
specific  EU  legislation  are  of  relevance  for  consumer  protection  in  relation  to  financial 
services. Examples would be: 

  Directive 2014/65/EU on markets in financial instruments; 
  Directive (EU) 2015/2366 on payment services;351 
  Directive 2008/48/EC on credit agreements for consumers; 
  Directive  2014/17/EU  on  credit  agreements  for  consumers  relating  to  residential 

immovable property; 

  Directive  2014/92/EU  on  the  comparability  of  fees  related  to  payment  accounts, 
payment account switching and access to payment accounts with basic features;352  

  Directive on insurance sales;353  
  Regulation (EU) 2015/751 on interchange fees for card-based payment transactions, 
  Regulation  (EU)  1286/2014  on  key  information  documents  for  packaged  retail  and 

insurance-based investment products (PRIIPs)354 

The interplay between sector-specific legislation and the UCPD is discussed in Chapter 1.4 
‘Interplay between the Directive and other EU law’.     

Financial  service  products  are  often  difficult  to  understand  and  can  involve  significant 
economic risks, so traders should take particular care to act with the standard of skill and care 
which can reasonably be expected from a professional within this field of commercial activity 
cf. Article 5(2)(a) UCPD.355 

For example: 

  Under  Article  5(6)  of  the  Consumer  Credit  Directive,  creditors  and,  where 

applicable  credit  intermediaries  should  provide  adequate  explanations  to  consumers  in 
order  to  place  the  consumer  in  a  position  enabling  him  to  assess  whether  the  proposed 
credit agreement is adapted to his needs and to his financial situation, where appropriate 
by explaining the pre-contractual information to be provided in accordance with Article 
5(1)  of  the  Consumer  Credit  Directive,  the  essential  characteristics  of  the  products 
proposed  and  the  specific  effects  they  may  have  on  the  consumer,  including  the 
consequences of default in payment by the consumer. 

Here are some of the misleading practices as set out in Articles 6 and 7 UCPD, reported in 
the  Commission’s  Study  on  how  the  UCPD  applies  to  financial  services  and  immovable 
property:  

350  Article 2(b) of Directive 2002/65/EC concerning the distance marketing of consumer financial services. 
351  Directive (EU) 2015/2366 on payment services in the internal market, OJ L 337, 23.12.2015, p. 35. 
352  Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment 

accounts, payment account switching and access to payment accounts with basic features. 

353  The Directive has been adopted by the legislator end of 2015 and is expected to be published in 2016. A press release from the European 
Commission  on  this  agreement  is  available  at:  http://europa.eu/rapid/press-release_IP-15-5293_en.htm.  The  Insurance  Distribution 
Directive has introduced a standardised ‘insurance product information document’ for non-life insurance products, which aims at giving 
clear, non-misleading pre-contractual information to consumers about the non-life insurance product and its characteristics. The revised 
Directive  will  cover  the  entire  distribution  chain  and  will  be  referred  to  as  the  Insurance  Distribution  Directive,  replacing  the  2002 
Insurance Mediation Directive. 

354  Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for 

packaged retail and insurance-based investment products (PRIIPs), OJ L 352, 9.12.2014, p. 1. 

355  According  to  the  study  on  consumer  vulnerability  across  key  markets  in  the  European  Union,  the  incidence  of  vulnerability  is 

particularly high in the financial sector. 

150 

 
 
 
 
                                                                                                                                                                                          
- 

lack of information in advertising on the annual percentage rate of charge (APR) and 
the cost of credit;  

-  offers of misleading bargains for credit contracts with a low interest rate;  

- 

lack  of  proper  information  on  the  legal  obligations  related  to  the  signing  of 
contracts.356 

For example: 

  Traders should not exaggerate economic benefits, not omit information about 

financial  risks  to  consumer  and  not  over-rely  on  past  performance  on  the  financial 
product.    

  The  main  characteristics  of  a  financial  product  under  Articles  6(1)(b)  and  7(4)(a) 
could  include  information  that  a  financial  product  will  be  calculated  in  a  currency 
which is not that of the country where the contract is concluded.     

  Under  Article  6(1)(d)  and  7(4)(c),  the  presentation  and  calculation  of  fees  and 
charges should include all costs incurred by the consumers, for example by including 
costs  of  the  service  related  to  fees  for  agents  or  intermediaries,  or  in  relation  to 
overdraft charges. The presentation and calculation of  fees and charges should also 
clearly  state  that  a  specific  low  interest  rate  and/or  charge  is  only  applicable  for  a 
limited period of time. 

Articles 8 and 9 set out criteria for assessing aggressive commercial practices. 

Point No 27 of Annex I to the Directive refers to an aggressive commercial practice in the 
field of financial services which is considered unfair in all circumstances: 

No 27 of ANNEX I 

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

 For example: 

 

In  some  circumstances,  obstacles  to  switching357  may  be  considered  an 
aggressive commercial practice and therefore unfair on the basis of Article 9(d). 358 

356  See Study on the application of the Unfair Commercial Practices Directive to financial services and immovable property conducted on 

behalf of the European Commission, DG Justice 2012, available at: http://ec.europa.eu/justice/consumer-marketing/document.  

357  Directive  2014/92/EU  on  the  comparability  of  fees  related  to  payment  accounts,  switching  from  and  access  to  payment  accounts 
introduces a specific procedure to be followed by payment account providers (Article 10) and requires them to inform consumers about 
their switching service (Article 14). 

151 

 
 
 
 
 
 
  
 
 
 
 
                                                            
 

In  the  insurance  sector,  point  No  27  Annex  I  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 those cases, 
the  traders  systematically  failed  to  respond  to  pertinent  correspondence  in  order  to 
dissuade consumers from exercising their contractual rights.359 

National authorities have applied the UCPD in the field of financial services. 

For example: 

  The Greek authorities took legal action against certain banks for providing 

misleading  information  on  the  risks  inherent  in  certain  financial  products,  namely 
Lehman  Brothers’  bonds.360  When  determining  whether  such  practices  were 
misleading,  the  Greek  authorities  took  into  account  the  fact  that  the  consumers 
targeted  by  the  banks  for  the  sale  of  these  bonds  were  ordinary  current  account 
holders not being familiar with these types of financial products. 

358 

In relation to bank switching, the European Banking Industry Committee adopted common principles facilitating bank account switching 
due 
http://ec.europa.eu/internal_market/finservices-
of 
retail/docs/baeg/switching_principles_en.pdf. 

implemented 

November 

2009. 

See: 

be 

as 

to 

1 

359  Reported in Portugal, see study on the application of the UCPD to financial services and immovable property in the EU, 2012. 
360  Ministry  of  Development,  Directorate  General  for  Consumers,  Directorate  for  Consumer  Protection,  fine  of  €  1 000 000  imposed  on 

Citibank PLC, Athens on 27 March 2009. 

152 

 
 
 
 
 
 
                                                                                                                                                                                          
ANNEX I: CASE-LAW FROM THE CJEU ON THE UCPD (ORDERED BY YEAR) 

Case 

Year   Topic  discussed 
UCPD guidance 

in  draft 

C-261/07 Total Belgium  

2009    Full harmonisation effects 

of 

Section 
UCPD guidance 
  1.3 

draft 

full 

harmonisation 
character      

  1.3.1  Application 
sales 
and 

to 
promotions 
price reductions 
  1.3.1  Application 
sales 
and 

to 
promotions 
price reductions                                                               

  1.2.2  Commercial 
practices  which 
relate 
a 
to 
business-to-
business 
transaction 
or 
which  harm  only 
competitors' 
economic interests 
  1.2.1  Commercial 
practices which do 
not 
the 
affect 
consumer's 
economic interests                          
 1.3.1  Application 
sales 
to 
promotions 
and 
price reductions 
  1.3.1  Application 
sales 
and 

to 
promotions 
price reductions 

 

C-304/08 
Warenhandelsgesellshcaft 

Plus 

C-540/08 Mediaprint 

of the Directive      
of 

  Application 
Directive 
promotions 

to 

the 
sales 

2010    Application 

of 

Directive 
promotions                   

to 

the 
sales 

  Distinction 
consumers' 
competitors' interests  

between 
and 

2010    Directive 

precludes 

a 
general  national  ban  on 
bonuses 
with 
sales 
designed 
achieve 
to 
consumer  protection  as 
well as other  

C-522/08 Telekom. Polska 

2010 

153 

 
 
 
C-122/10 Ving Sverige 

2011    For 

a 

as 

commercial 
be 
to 
communication 
being 
capable 
of 
categorised 
an 
invitation  to  purchase,  it 
is  not  necessary  for  it  to 
include 
actual 
an 
opportunity  to  purchase 
or  for  it  to  appear  in 
proximity  to  and  at  the 
same  time  as  such  an 
opportunity 
• 
"entry-level 
using 
prices"  is  not  contrary  to 
the  UCPD,  provided  that 
the 
final  price  cannot 
"reasonably  be  calculated 
in advance" 

  Extent  of  the  information 
the  main 
to 
relating 
characteristics 
a 
of 
product  which  has  to  be 
an 
in 
communicated 
invitation 
to  purchase 
must  be  assessed  on  the 
basis  of  the  context  of 
that  invitation,  the  nature 
and  characteristics  of  the 
product  and  the  medium 
of communication used 

2011    National  rules  prohibiting 
price  reductions  during 
not 
periods 
pre-sales 
compatible  with 
the 
Directive  in  so  far  as  it 
the 
to  protect 
seeks 
of 
interests 
economic 
consumers 

2011    National  provision  does 
not  fall  within  the  scope 
of the Directive "if it aims 
solely,  as  argued  by  the 
at 
referring 
regulating 
relations 
between  competitors  and 
does not aim at protecting 
consumers 

court, 

C-288/10 Wamo 

C-126/11 Inno 

C-428/11 Purely Creative 

2012    Notion of 'cost' in relation 

to No 31 of Annex I   

154 

  2.6.1  concept  of 
to 

"invitation 
purchase" 

  2.6.2 

Material 
information  in  the 
an 
case 
of 
invitation 
to 
purchase 

  3.3.3 Limits of the 
communication 
medium used 

  1.2.2  Commercial 
practices  which 
a 
to 
relate 
business-to-
business 
transaction 
or 
which  harm  only 
competitors' 
economic interests 
  1.2.2  Commercial 
practices  which 
relate 
a 
to 
business-to-
business 
transaction 
or 
which  harm  only 
competitors' 
economic interests 
  4.7 Prizes – No 31 
of annex I (prizes) 

 
C-559/11 
Turnhout 

Pelckmans 

Case  C-453/10  Pereničová 
and Perenič  

C-206/11 Köck 

C-435/11 
Services 

CHS 

Tour 

C-59/12 BKK Mobil Oil 

  1.2.1  Commercial 
practices which do 
not 
the 
affect 
consumer's 
economic interests 

  1.4.5 
with 
Contract 
Directive 

Interplay 
the  Unfair 
Terms 

  1.2.1  Commercial 
practices which do 
not 
the 
affect 
consumer's 
economic interests 

– 

  3.1  The  general 
the 
of 

clause 
requirements 
professional 
diligence 

  2.1  The  notion  of 

trader 

is 

to 

of 

cause, 

2012    National  prohibition 

to 
open  shops  seven  days  a 
week found to only aim to 
protect  the  interests  of 
workers and employees in 
the distribution sector and 
not 
to  protect 
intend 
consumers. 
2012    Erroneous 

information 
provided  in  the  contract 
terms 
‘misleading’ 
within the meaning of the 
UCPD  if  it  causes,  or  is 
likely 
the 
average  consumer  to  take 
a 
transactional  decision 
that  he  would  not  have 
taken otherwise. 
2013    National law allowing the 
a 
announcement 
only 
clearance 
the 
subject 
authorization 
the 
competent  administrative 
authority considered to be 
aimed at the protection of 
consumers, and not solely 
the  protection  of 
at 
competitors 
and  other 
operators in the market 
If  a  commercial  practice 
satisfies  all  the  criteria  in 
Article  6(1)  for  being 
a 
categorised 
misleading  practice 
in 
relation  to  the  consumer, 
to 
is  not  necessary 
it 
determine  whether  such  a 
practice is also contrary to 
of 
requirements 
the 
professional  diligence  as 
referred 
in  Article 
(5)(2)(a) 

2013   

sale 
to 

as 

of 

to 

2013    A 

law 

public 

body 
charged  with  a  task  of 
public  interest,  such  as 
the  management  of  a 
statutory  health  insurance 
fund,  can  qualify  as  a 
"trader" 

155 

 
  5.4.1 

Financial 
and 

services 
immovable 
property 
horizontal issues 

– 

  2.3 The concept of 
"transactional 
decision" 

  1.2.2  Commercial 
practices  which 
a 
to 
relate 
business-to-
business 
or 
transaction 
which  harm  only 
competitors' 
economic interests 
  1.3.1  Application 
sales 
and 

to 
promotions 
price reductions 
  1.3.1  Application 
sales 
and 

to 
promotions 
price reductions 
  1.4.3  Other  EU 

information 
requirements 
"material 
information"  

as 

C-265/12 Citroën Belux  

C-281/12 Trento Sviluppo 

C-343/12 Euronics 

C-421/12  EC  vs  Kingdom 
of Belgium 

2013    MS  can 

lay  down  a 
general  prohibition  on 
combined  offers  made  to 
consumers  where  at  least 
one  of the components  of 
those  offers  is  a  financial 
service 
2013    Broad 

interpretation 
confirmed:  "transactional 
decision"  covers  not  only 
the  decision  whether  or 
not to purchase a product, 
but also decisions directly 
related to that decision, in 
particular  the  decision  to 
enter the shop 

2013    Directive 

precludes 

a 
national  provision,  which 
aims  at  prohibiting  sales 
at  loss,  only  in  so  far  as 
this  provision 
follows 
also the aim of protecting 
consumers. 

2014    National 

rules  which 
place 
general 
a 
prohibition  on  practices 
not referred to in Annex I, 
without  providing  for  an 
individual  analysis  as  to 
whether  the  practices  are 
'unfair'  in  the  light  of  the 
criteria 
in 
Articles  5  to  9  of  that 
directive, 
not 
permitted  under  Article  4 
thereof and run counter to 
the 
complete 
harmonisation  objective 
pursued by that directive 

laid  down 

are 

promotions 

  Price 
and 
total 
harmonisation 
character  in  light  of  the 
Price Indication Directive  
  Omission  by  a  trader  of 
information  which 
is 
national 
by 
required 
provisions allowed by the 
minimum  clauses  in  the 

156 

 
Case  C-515/12  ‘4finance’ 
UAB  v  Lithanian  Finance 
Ministry  

C-388/13 UPC 

EU 

law 
existing 
instruments  will 
not 
qualify  as  an  omission  of 
material  information  and 
thus  not  constitute  a 
misleading 
omission 
under the Directive 

to 

constitutes 

2014    A  pyramid  promotional 
an 
scheme 
unfair 
commercial 
practice  only  where  such 
the 
a  scheme  requires 
consumer 
give 
financial 
consideration, 
regardless  of  its  amount, 
for 
to 
the  opportunity 
receive compensation that 
is  derived  primarily  from 
the  introduction  of  other 
consumers 
the 
scheme  rather  than  from 
the  sale  or  consumption 
of products. 

into 

  4.2   

Pyramid 
— 

schemes 
banned 
commercial 
practice No 14 

·          2.2  concept  of 
commercial practice 

2015    Neither the definitions set 
out  in  Articles 2(c)  and 
(d),  3(1)  and  6(1)  of  the 
Unfair 
Commercial 
Practices  Directive  nor 
the  latter,  considered  as  a 
whole, 
any 
indication  that  the  act  or 
omission  on  the  part  of 
the  professional  must  be 
recurrent or must concern 
more than one consumer 

contain 

157 

 
C-13/15 Cdiscount 

2015   

is 

national 
for 
It 
authorities  and  courts  to 
decide  whether  a  national 
provision  is  intended  to 
protect consumer interests 

Joined  Cases  C-544/13  and 
C-545/13 

2015    The  application  of 

the 
UCPD  is  not  excluded 
even 
EU 
legislation  also  applies  to 
a given set of facts.  

other 

if 

1.2.2 
·         
Commercial  practices 
which 
to  a 
relate 
business-to-business 
transaction  or  which 
harm 
only 
competitors' economic 
interests 
·         
Relationship 
other EU legislation 

1.4.1 
with 

the 

  Even  where  medicinal 
products  for  human  use, 
such  as  those  at  issue  in 
the main proceedings, fall 
scope  of 
within 
2001/83, 
Directive 
practices 
advertising 
relating 
those 
to 
medicinal  products,  such 
as  those  alleged  in  the 
main  proceedings,  can 
also  fall  within  the  scope 
2005/29 
of  Directive 
provided 
the 
conditions  for  application 
of 
are 
that  directive 
satisfied. 

that 

158