Consumer market study to support the fitness check of EU consumer and marketing law : executive summary.
Date: 2017-10-02
Institutions: Directorate-General for Justice and Consumers
Subjects: European Union, application of EU law, common commercial policy, consumer policy, consumer protection, contract, directive (EU), harmonisation law, marketing, price index, report, sale, simplification of legislation, single market, unfair terms of contract

CONSUMER MARKET STUDY TO SUPPORT THE FITNESS 

CHECK OF EU CONSUMER AND MARKETING LAW 

EXECUTIVE SUMMARY 
May 2017 

Background and purpose of the study 

In January 2016, the European Commission launched a Fitness Check of six main consumer and marketing law directives1 
and  a  parallel  evaluation  of  the  Consumer  Rights  Directive  2011/83/EU.  This  evaluation  seeks  to  establish  the 
effectiveness, efficiency, coherence, relevance and EU added value of these instruments and whether they are still fit for 
purpose. The evaluation is evidence-based. The Commission therefore called for a specific external study into consumer 
awareness, perception and experience with the realisation of consumer rights.  

This study  was assigned  to  and  implemented by GfK  Belgium. It  covers four out of 6 Directives  undergoing the Fitness 
Check: the Unfair Contract Terms Directive (UCTD), the Unfair Commercial Practices Directive (UCPD), the Consumer Sales 
Directive  (CSD),  and  the  Price  Indication  Directive  (PID).  Some  tasks  performed  within  this  study  also  covered  the 
Consumer Rights Directive (CRD). The objective of the study was to provide DG Justice and Consumers with information 
on: 

 the extent to which consumers are aware of their rights and are willing and able to exercise these rights; 

 the nature and prevalence of problems that consumers encounter when exercising their rights; and 

 the benefits the respective EU legal instruments bring to consumers. 

Special  attention  was  also  to  be  paid  to  the  consumers’  behaviour  in  online  markets  and  consumers’  cross-border 
purchases. 

Methodology  

This project was implemented by means of three main research tasks: an in-depth consumer survey in 28 Member States 
plus Norway and Iceland (EEA countries), two mystery shopping assignments and four behavioural experiments.  

The consumer survey was designed to collect data on consumer experience in a wide range of markets, covering goods as 
well  as  services,  bought  both  offline  and  online  in  both  the  respondents’  own  country  and  in  another  EU  country.  The 
survey  covered  only  the  four  above-mentioned  Directives  undergoing  the  Fitness  Check.  It  was  completed  online  by  a 
representative sample(in terms of age and gender) of 23,501 respondents from the EU28 countries plus Iceland and   

1  

Unfair Contract Terms Directive (UCTD), Unfair Commercial Practices Directive (UCPD), Consumer Sales Directive (CSD), Price 
Indication Directive (PID), Misleading and Comparative Advertising Directive (MCAD) and Injunctions Directive (ID) 

Justice 
and Consumers 

 
 
 
 
 
 
 
 
 
                                                           
 CONSUMER MARKET STUDY TO SUPPORT THE FITNESS CHECK OF EU CONSUMER AND MARKETING LAW 

covering goods as well as services, bought both offline and online in both the respondents’ own country and in another 
EU  country.  The  survey  covered  only  the  four  above-mentioned  Directives  undergoing  the  Fitness  Check.  It  was 
completed online by a representative sample (in terms of age and gender) of 23,501 respondents from the EU28 countries 
plus Iceland and Norway, using the GfK consumer panels. 

The mystery shopping consisted of 2 tasks.  

First,  the  UCPD  mystery  shopping  exercise  studied  the  possibilities  for  consumer  redress  in  the  case  of  misleading 
commercial practices in retail trade. This exercise was conducted in Belgium, Bulgaria, Finland, France, Germany, Greece, 
Ireland, Malta, the Netherlands, Poland, Portugal, and the United Kingdom. It covered 56 completed cases where mystery 
shoppers purchased products based on misleading commercial practices and subsequently tried to claim remedies, such 
as  refunds,  from  the  traders.  The  product  sectors  involved  in  this  mystery  shopping  exercise  were  clothing,  electronic 
goods and information and communication technology (ICT) goods. 

Second, the  CRD  mystery shopping exercise investigated the level of  compliance of traders  with  specific rules from the 
Consumer  Rights  Directive  related  to  the  provision  of  pre-contractual  information,  requirements  for  the  conclusion  of 
contracts, the ban on extra fees, the ban on the use of pre-ticked boxes and consumers’ right of withdrawal. This mystery 
shopping  was  conducted  in    Bulgaria,  Finland,  France,  Germany,  Greece,  the  Netherlands,  Poland  and  Portugal  and 
covered purchases of ICT goods (i.e., computer mice and memory sticks) and digital content (i.e., antivirus software and 
music  downloads).  Mystery  shoppers  evaluated  the  traders'  compliance  with  the  CRD  requirements  such  as  their 
experience with the exercise of the right of withdrawal. 

Lastly,  four  experiments  were  conducted  online  in  Bulgaria,  Finland,  France,  Germany,  Greece,  the  Netherlands,  Poland 
and Portugal, to test consumers’ use of and reaction to information.  

Experiment 1 about the Price Indication Directive tested respondents' choices and willingness to pay for two products (i.e., 
cookies  and  laundry  detergent)  depending  on  the  availability  of  unit  price  information.  It  tested  different  price-unit 
relationships (i.e., situations where larger packages had both lower and higher unit price than smaller package sizes).The 
respondents' awareness of the unit price information, their ability to determine the item with the lowest unit price (unit 
price comprehension) and the effect on their product choices were assessed.  

Experiment  2  was  conducted  to  examine  respondents’  responses  to  the  use  of  fair  vs.  unfair  standard  contract  terms 
(T&Cs)  and  whether  respondents  were  influenced  by  different  presentations  of  the  T&Cs.  Respondents  were  presented 
with the T&Cs for a consumer credit and for an ADSL internet subscription. The presentation of the T&Cs and the fairness 
of  the  T&Cs  were  manipulated  between  respondents.  More  specifically,  respondents  had  to  make  their  purchasing 
decision on the basis of either the traditional (long) version of the T&Cs, a summarized version of T&Cs or a summarized 
version of T&Cs accompanied with graphical icons; each of these types of T&Cs were either fair or included unfair clauses. 
The experiment assessed the respondents' intention to buy depending on the type of T&Cs they were presented with as 
well  as  the  respondents’  readership  of  T&Cs,  perceived  fairness  of  the  T&Cs  and  comprehension  of  the  fairness  of  the 
T&Cs. 

Experiment  3  investigated  whether  consumers  take  durability  and  reparability  information  into  consideration  if  such 
information  is  provided.  Respondents  were  given  a  decision-making  task  for  three  different  products  (large  consumer 
good: washing machine, medium consumer good: TV and small consumer good: smartphone) with each having 6 product 
options that varied by brand, price and product characteristics, in particular as regards durability and reparability aspects. 
The durability information was manipulated between-subjects, i.e. the information was either absent, presented by years 
or presented by usage units (e.g., washing cycles).  The reparability information  was also manipulated between  subjects, 
i.e. it was either absent or presented in terms of availability of spare parts or costs of replacing key parts. The effect of the 
presence  of  durability  and  reparability  information  was  measured  by  assessing  respondents’  product  choice  and 
willingness to pay. 

Experiment  4  focused  on  whether  the  information  required  by  the  Consumer  Rights  Directive  (CRD)  is  comprehensible 
and perceived as relevant by consumers. It also measured if consumers consider any of the information requirements in 

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 CONSUMER MARKET STUDY TO SUPPORT THE FITNESS CHECK OF EU CONSUMER AND MARKETING LAW 

the Unfair Commercial Practices Directive (UCPD) as redundant at the advertising stage, in view of the fact that the same 
and  more  information  is  also  required  under  the  CRD  in  the  pre-contractual  stage.  In  Experiment  4a  on  the  CRD, 
respondents saw one of three conditions. First, respondents were randomly divided over two products: streaming content 
and a smartphone. For the streaming content, the presentation of icons was manipulated (i.e., for each CRD information 
item an icon was present or absent), while the smartphone condition was only presented with icons. For each of the CRD 
information items represented, respondents were asked if they understood the information (comprehension) and whether 
they  thought  the  information  was  important  (importance/relevance).  Their  use  of  the  CRD  information  in  hypothetical 
scenarios  was  also  tested.  In  Experiment  4b  on  the  UCPD,  the  respondents  were  first  presented  with  an  online 
advertisement  containing  information  required  by  the  UCPD  (Article  7(4)).  Next,  they  were  presented  with  the  pre-
contractual  information  required  by  the  CRD.  Subsequently,  respondents  were  asked  to  answer  questions  on  any 
(perceived) redundancy of the information they saw in the advertisement. 

Key findings 

Relevance of consumer rights: Consumer awareness, attitude and use of consumer rights 

Previous research2 has  shown that consumers  are barely  aware of their rights. In the  consumer  survey, consumer rights 
awareness was measured by asking respondents to answer specific questions concerning the four Directives subject to the 
Fitness Check (i.e. UCTD, UCPD, CSD and PID). The results show that awareness varies depending on the right in question. 
The rate of correct replies ranges from 38% for the question about the rights regarding the choice of remedies in case of 
defective  goods,  40%  for  the  question  about  the  non-binding  nature  of  unfair  terms  and  conditions  and  47%  for  the 
question  about  the  duration  of  the  legal  guarantee,  to  67%  for  the  question  about  the  rights  about  the  unit  price 
indication, 71% for the question about the rights to have unclear contract terms interpreted in the consumer’s favour and 
73%  for  the  question  about  the  prohibition  of  persistent  unsolicited  marketing  (as  an  example  of  unfair  commercial 
practices).  As  regards  consumer  rights  in  relation  to  defective  goods,  respondents  in  general  had  significantly  lower 
awareness about specific national rights going beyond the EU minimum requirements.  

Survey respondents attached great importance to most consumer rights. When looking at the perceived importance of 
various decision-making factors, only the price of products or services (87%) was seen as more important than the ‘legal 
guarantee' for goods (85%), clear and fair T&C’s (85%), and remedies if something goes wrong (84%). Two thirds of the 
respondents also perceived unit price indication as important (68%). 

As regards the actual benefits, i.e. the practical use of consumer rights, the survey respondents reported benefiting most 
from  the  rights  to  a  'legal  guarantee'  for  goods  and  rights  for  unit  price  indication  (respectively  72%  and  69%  of 
respondents  reported  they  benefit  at  least  'slightly'  from  these  rights).  Relatively  fewer  respondents  considered  as 
beneficial  the other investigated rights, i.e. the rights  not to be bound by unfair terms and conditions (47%), the rights to 
complain  against  misleading  and  aggressive  practices  (47%)  and  the  rights  to  interpret  unclear  or  ambiguous  contract 
terms in consumer's favour (45%)’. The number of respondents who indicated they had not drawn any benefit from these 
rights  ranged  from  34%  to  15%  (depending  on  the  right),  which  shows  that  these  consumer  rights  continue  to  be 
important for a large majority of consumers. 

Behavioural experiments provided insights into respondents’ use of various information, in particular information required 
by the relevant directives. Thus, the experimental results show that  unit price indication was effective as it enabled the 
respondents  to  identify  the  product  options  that  represented  the  best  value  for  money,  especially  in  situations  when 
larger packages were more expensive per unit than smaller packages. 

2  

Eg, European Commission DG Justice and Consumers. (2015). Consumer Conditions Scoreboard: Consumer at home in the 
Single Market – 2015 edition. – Retrieved from 
http://ec.europa.eu/consumers/consumer_evidence/consumer_scoreboards/11_edition/index_en.htm 

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The  experimental  findings  also  indicate  that  consumers  benefit  from  pre-contractual  information  required  under  the 
Consumer  Rights  Directive  (CRD),  as  they  find  this  information  both  easy  to  understand  and  important  for  their 
purchase decisions. Trying to further improve the ease of understanding the pre-contractual information by using icons 
did, however, not lead to the desired results. Moreover, majority of respondents found it important to be presented with 
most information elements about the offer required by the UCPD already at the advertisement stage.  

Another  experiment  showed  that  the  provision  of  specific  durability  and  reparability  information  can  lead  the 
consumer  towards  choosing  more  durable  or  more  easily  reparable  products.  It  also  showed  the  different  impacts  of 
different  ways  of  presenting  such  information.  The  presentation  of  durability  information  always  led  consumers  to 
choosing more durable product irrespective of whether it was presented in in years or by usage units. On the other hand, 
while information on the availability of spare parts increased choices and willingness-to-pay for more reparable products, 
information  on  the  average  costs  of  spare  parts  increased  choices  of  such  products  significantly  less  and  even  had  a 
negative effect on respondents’ willingness-to-pay for products with high as well as low costs of spare parts. 

The  experiment  concerning  the  standard  Terms  &  Conditions  showed  that  respondents  were  more  likely  to  buy  from 
traders that offer fair  T&Cs especially where  those were presented in a  summarized way that was easier to understand. 
When the T&Cs were presented in the standard (long) format, respondents hardly distinguished between fair and unfair 
T&Cs  in  their  intention  to  buy  the  product.  When  the  T&Cs  were  summarised,  respondents  distinguished  much  more 
between fair and unfair T&Cs. After  having been presented with summarised  T&Cs, respondents were less likely to  buy 
from a seller with unfair T&Cs and, depending on the product, were also more likely to buy from a seller with fair T&Cs. In 
contrast, adding icons to the summary T&Cs seems to have no additional beneficial effects.  

Lastly,  the  relevance  of  consumer  rights  was  examined  by  testing  consumer  reactions  to  consumer  rights 
infringements under the CRD. Two of these infringements were tested by means of mystery shopping:  charging fees 
for  a  certain  payment  method  and  using  pre-ticked  boxes  associated  with  the  purchase  of  extra  options.  These 
practices  had  negative  effects  on  mystery  shoppers’  trust  of  and  satisfaction  with  the  retailer  and  their  perceived 
willingness to purchase goods from the same retailer in the future. 

Consumer perception and experience of traders’ compliance with consumer rights 

The findings of the consumer survey show that while between 45% and 63% of the respondents (depending on the type 
of  trader)  perceived  traders  to  be  compliant  with  consumer  rights  (i.e.,  they  evaluated  traders  as  very  or  completely 
compliant) and only between 9% and 11% thought that traders were only slightly compliant or not compliant, a relatively 
high  proportion  of  respondents  still  reported  having  encountered  problems  in  the  last  year.  The  most  common 
problems were related to misleading or aggressive commercial practices (33%), defective goods (32%), a lack of unit price 
indication (30%), unclear or ambiguous standard contract terms (28%) and unfair standard contract terms (23%). The CRD 
mystery  shopping  provided  further  insights  into  traders’  compliance  with  consumer  rights,  including  the  CRD 
information  requirements.  The  findings  show  that  in  most  of  the  mystery  shopping  cases,  the  traders  complied  with 
CRD  pre-contractual  requirements,  including  information  on  digital  content  functionality  and  interoperability,  and  with 
CRD  information  requirements  regarding  the  conclusion  of  a  distance  contract.  A  potential  problem  area  is  the 
procedure  related  to  withdrawal  from  contracts.  Fewer  than  half  of  the  investigated  retailers  informed  consumers 
about their right to withdraw (nevertheless, most mystery shoppers found the overall withdrawal procedure satisfactory). 

Consumer problem resolution 

Findings from both the consumer survey and UCPD mystery shopping provide insights into respondents’ efforts to resolve 
problems. First, when trying to resolve problems, most respondents dealt directly with the seller or service provider 
and  most  problems  were  also  resolved  in  this  way.  Public  organisations,  such  as  consumer  associations  and  public 
authorities, had to be involved for solving problems in much fewer cases. Respondents were also largely satisfied with the 
way that their complaint was dealt with by the seller, service provider or manufacturer. 

Notwithstanding  this,  a  significant  share  of  problems  (14%)  was  reported  as  unsolved  or  still  pending  Moreover,  more 
than one-fifth of respondents did nothing to resolve their problem.  Most respondents who did not take action did 

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not  because  the  sums  involved  were  too  small  (37%)  or  because  they  did  not  believe  they  would  get  a  satisfactory 
solution for the problems they had encountered (28%).  

As  regards  misleading  commercial  practices,  the  UCPD  mystery  shopping  exercise  findings  suggest  that  there  is  very 
small  chance  that  traders  would  voluntarily  offer  any  remedy  to  consumers  who  have  suffered  economic  loss  due  to 
misleading commercial practices. The exercise of the right to withdrawal, which is regulated under EU consumer law (as 
opposed  to  remedies  in  the  case  of  unfair  commercial  practices),  was  relatively  more  effective,  as  more  of  the  mystery 
shoppers received a refund of their purchases. 

The effect of national regulatory differences on cross-border trade 

As  national  consumer  protection  rules  in  some  areas  go  beyond  the  minimum  EU  requirements,  regulatory  differences 
may  affect  cross-border  trade.  The  consumer  survey  findings  show  that  significantly  fewer  respondents  are  buying 
products and services from offline and online stores in an EU country other than their own. When buying in (online 
and offline) shops in another EU country, respondents considered the ‘legal guarantee' for goods, clear and fair terms and 
conditions  and  the  availability  of  means  to  obtain  remedy  or  redress  if  something  goes  wrong  as  the  three  most 
important consumer rights-related factors. Only the price of the good mattered more for respondents in these cases. In 
contrast,  other  factors  such  as  delivery  cost  (for  foreign  offline  traders)  and  time,  language  differences  and  after-sales 
services offered by the seller or manufacturer were all reported as less important.  

Policy Options 

The current findings highlight the need for the EU to further invest in raising awareness about consumer rights.   

Information  helps  consumers  to  make  better  or  more  accurate  decisions  and  presenting  information  in  a  user-
friendly way may further increase this effect. The results show that the mandatory information requirements under the 
CRD, PID and UCPD are considered relevant by consumers. In particular, the requirement to indicate the unit price helps 
them  to  make  better  purchasing  decisions.  A  campaign  or  some  guidance  could  enhance  traders’  awareness  of  the 
information requirements and encourage their more user-friendly presentation, such as T&Cs in a summarised form.  

Retailers themselves seem also somewhat unaware about the laws under which they should be operating. This is 
reflected by the failure of traders to provide information required by the CRD about the withdrawal procedure and about 
digital  content  functionality.  Policy  recommendations  to  enhance  retailer  awareness  might  entail  EU  information 
campaigns directed specifically at traders and their organisations (e.g., information campaigns, seminars, leaflets, etc.) and 
recommendations to Member States to work on awareness standards. As such, the existing trade (commercial) registers 
can be used to inform them about their consumer law obligations.  

Special  attention  should  be  given  to  information  related  to  the  functionality  and  interoperability  of  digital  content 
required by the CRD. Purchases of digital content might be frustrating for the consumer if the digital content cannot be 
used as intended. For instance, attention could be focused on how businesses could better present such information, such 
as  by  developing  specific  labels  for  products  and  websites,  for  example  listing  all  compatibility  requirements  of  the 
content with a specific label or colour.  

The consumer survey findings also show that consumer confidence in public authorities and consumer associations is 
rather  low  despite  the  fact  that  the  actual  satisfaction  with  their  performance  in  concrete  problem-solving  is 
relatively high. To strengthen consumer confidence in consumer protection bodies, Member States may need to support 
these organisations, especially financially. Furthermore, consumer awareness about the role of these organisations should 
be  raised.  Since  consumers’  awareness  about  consumer  rights  in  itself  has  a  positive  effect  on  confidence  in  consumer 
protection bodies, these results further highlight the need to improve consumer awareness of their rights. 

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Retailers that make use of misleading commercial practices are very unlikely to voluntarily offer any redress to the 
affected  consumers.  Remedies  in  the  case  of  purchases  made  as  a  result  of  misleading  commercial  practices  are  not 
currently regulated by EU law. While consumers could address this issue through national civil law (e.g. a contract could 
be declared null and void because of fraud) and EU consumer sales rules would be applicable in certain situations (e.g. if 
the  purchased  good  is  not  in  conformity  with  the  contract),  the  findings  highlight  a  need  for  action  to  ensure  that 
consumers have clear remedies for UCPD breaches that are also well known to traders. 

Differences in national regulations potentially affect cross-border commerce. The findings show that consumers may 
not actually be aware of differences in national consumer laws, but suspect that there might be differences. This in turn 
affects their willingness to  engage in cross-border sales. Two policy recommendations are relevant in this context. First, 
more  information  campaigns  funded  by  the  European  Union  to  promote  and  enhance  consumer  awareness  could  help 
close  the  awareness  gap  in  regard  to  the  harmonisation  of  consumer  rights  in  Europe.  Second,  the  enforcement  of  EU 
consumer protection regulations could be improved by enhancing the cross-border enforcement systems. 

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