E

D E E L
2.

Preventing unfair commercial practices (UCPD)

Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer

commercial practices in the internal market

unfair + misleading + aggressive B2C commercial practices

see www.isitfair.eu; European Commission goes outof-the-box to help consumers,
http://www.youtube.com/watch?v=SCYoKLQnIGk

Directive 2006/114/EC of 12 December 2006 concerning misleading and comparative

advertising

misleading B2B advertising + unlawful B2C/B2B comparative advertising

2.1 Wat is UCPD?

1984: Richtlijn ivm misleidende reclame (B2C, B2B)

later werd dit afgezwakt naar B2B
2006: Opnieuw herbekeken: Misleidende en vergelijkende reclame

Maximum harmonisatie: minimum is gelijk aan maximum, overal gelijke

bescherming van de consument. De lidstaten kunnen dus geen eigen nationale
wetten meer formuleren.

Minimale harmonisatie: Nationale wetten mogen de consument wel mr

beschermen.

Doel:

De Europeanen meer vertrouwen gevel om overal te consumeren. De consument

wordt immers beter beschermd.

Framework directive
compare sector-specific directives, see art. 3(4)

Maximum harmonisation
uniform law about unfair commercial practices; unification of the law in the books
compare minimum harmonisation

Purpose (art. 1)
making it easier for traders based in one Member State to market and sell their
products to consumers in other Member States
giving consumers greater confidence to shop across borders, by providing a high
common standard of consumer protection

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Legal basis (Art. 114 TFEU !)

Broad scope of application (art. 3(1)):

commercial practice: art. 2(d)
before, during and after a commercial transaction (= contract) but limitation in two
important respects:
business-to-consumer (recital 6 and 8): art. 2(a) and (b)
matters of taste and decency (recital 7)

Difficult implementation process in the Member States: e.g.

UK: correct but untimely: CPRs and BPRs
NL: correct but untimely: Civil Code provisions
DE: incorrect and untimely: UWG provisions
FR: incorrect and untimely: Consumer Code provisions
BE: incorrect but in time: WHPC provisions (new WMPC in the pipeline)

Een nationale RB kan aan de ECJ vragen of een wet kan of niet. De nationale rechtbank
is niet verplicht om deze vraag te stellen, maar de uitspraak van de Europese rechter is
wel bindend. Dit is een belangrijk initiatief om meer harmonisatie te bereiken.

Role of the ECJ: preliminary rulings (e.g. VTB-VAB) + infringement proceedings (role
of the Commission)

Some remedial tools for incorrect and/or untimely transposition

Various new concepts, rules and principles with an open texture

leads, in a system of decentralised enforcement, to limited harmonisation of the law in
action
how to deal with this?

hands-on approach by the ECJ

active role of national courts

authoritative Commission guidelines + more cooperation within the Consumer

Protection Cooperation Network (CPCN)

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2.2 Unfair practices (art. 5(2))

A commercial practice is unfair:
if it is contrary to requirements of professional diligence

professional diligence: art. 2(h)

AND
if 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

to materially distort the economic behaviour: art. 2(e); transactional decision:

art. 2(k)

product includes both goods and services: art. 2(c)

see also art. 5(3): vulnerable consumer benchmark

Als het onder unfair valt, dan moet het niet worden getoetst aan de voorwaarden. De
eerste voorwaarde is de consument die een beslissing neemt die hij anders niet zou
hebben genomen, de tweede is het criterium van zorgvuldigheid/toewijding.

2.3 Misleading practices (art. 6 - actions)

A.

Actions
Art. 6(1): A commercial practice is misleading:
if it contains false information or, in any way, deceives or is likely to deceive the
average consumer, even if the information is factually correct, in relation to one or
more essential elements
AND
if it causes or is likely to cause him to take a transactional decision that he would not
have taken otherwise

B.

Omissions
Art. 7(1)-(2): A commercial practice is misleading
if it omits, hides or provides in an unclear, unintelligible, ambiguous or untimely
manner material information that the average consumer needs to take an informed
transactional decision, or fails to identify the commercial intent of the commercial
practice
AND
where this causes or is likely to cause the average consumer to take a transactional
decision that he would not have taken otherwise

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Artikel zes en zeven overlappen vaak omdat er weinig verschil is tussen omissie en actie.
Art. 7(4): in the case of an invitation to purchase
(art. 2(i)), the following information must be provided, if not already apparent from the
context:

(a) the main characteristics of the product;

(b) the address and identity of the trader;

(c) the total price;

(d) the arrangements for payment, delivery, performance and the complaint
handling policy;

(e) the existence of a right of withdrawal

Art. 7(5): violation of EU information requirements in relation to commercial

communication (non-exhaustive list in Annex II) constitutes a misleading omission

Het is eerder een verplichting dan een verbod. Men is verplicht om informatie te verstrekken

2.4 Aggressive practices (transactional decision test)

Art. 8: A commercial practice shall be regarded as aggressive

if, by harassment, coercion or undue influence,

it significantly impairs or is likely to significantly impair the average consumers

freedom of choice or conduct with regard to the product and thereby causes him
or is likely to cause him to take a transactional decision that he would not have
taken otherwise

Art. 9: factors to be taken into account in determining whether a practice is aggressive:

(a) its timing, location, nature or persistence;

(b) the use of threatening or abusive language or behaviour;

(c) the exploitation of any specific misfortune or circumstance;

(d) any onerous or disproportionate non-contractual barriers...;

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

2.5 Blacklist

De transactionele beslissingstest wordt niet uitgevoerd als de zaak op de blacklist staat.

Het probleem van de blacklist is dat vele zaken moeilijk te bewijzen zijn of door de
consument nooit als nadelig worden ervaring. (mening Keirsbilck)

Article 5(5) juncto Annex I

31 per se prohibited practices

list of those commercial practices which are in all circumstances unfair, that is,
without a case-by-case assessment against the general clauses

full list; same single list applicable in all MS, can only be modified by revision of the
UCPD

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 Trust marks and codes (1-4)

Bait and switch (6)
Language of after-sales service (8)
Misleading impression of consumers rights (10)
Security as marketing argument (12)
Pyramid schemes (14)
Facilitation of winning chances (16)
Market information (18)
Falsely creating the impression of free offers (20)
Professional trader disguised as consumer (22)
Pressure selling (24)
Persistent and unwanted solicitations (26)
Direct exhortations to children (28)
Emotional pressure (30)

3.

Bait advertising (5)

Limited offers (7)
Advertising products which cannot be legally sold (9)
Advertorials (11)
Passing-off (13)
False claims regarding moving premises or cessation of
business (15)
False claims about curative capacity (17)
Prizes (19)
Products not ordered (21)
After sales services (23)
Aggressive doorstep selling (25)
Insurance claims (27)
Inertia Selling (29)
Prize Winning (31)

Misleading and Comparative Advertising Directive (MCAD

Previously: Directive 84/450/EEC, as amended by Directive 97/5/EC (see art. 10)

minimum harmonisation of misleading B2C/B2B advertising
maximum harmonisation of unlawful B2C/B2B comparative advertising

Now: Directive 2006/114/EC

framework directive (horizontal); compare sector-specific (vertical)
directives (art. 8(2))
minimum harmonisation of national rules relating to misleading B2B advertising (art.
8(1), first sentence)
maximum harmonisation of national rules relating to unlawful B2C/B2B comparative
advertising (art. 8(1), second sentence)

Purpose (art. 1)

Legal basis (Art. 114 TFEU !)

Broad scope of application:

advertising: art. 2(a) + comparative advertising: art. 2(c)
before the conclusion of a contract but limitation in two important respects:
business-to-business (at least in relation to misleading advertising)
matters of taste and decency (focus on economic interests)

3.1 Misleading advertising

Article 2(b) and 3: Advertising is misleading if:

in any way, including its presentation, it deceives or is likely to deceive the persons to
whom it is addressed or whom it reaches (the average trader) taking into account
all its features, and in particular any information it contains concerning essential
elements such as
AND
by reason of its deceptive nature, it is likely to affect their economic behaviour or,

ECJ, Nissan !

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 for those reasons, is likely to injure a competitor

for example, where an advertiser misleads a trader into using their services when
the trader actually intended to use the service of company X (a competitor),
perhaps by confusing the trader into believing they were actually dealing with
company X, which is likely to injure company X as it loses out on business

Unlawful comparative advertising

Art. 4: Comparative advertising is allowed if the

Voldoen aan de acht voorwaarden

3.2 Enforcement in the EU (verantwoordelijkheid van de lidstaat)

Enforcement = responsibility of the MS

Private enforcement (national courts) and public enforcement (national consumer
protectionauthorities, which are part of the CPC Network - Regulation (EC) No
2006/2004)
Collective enforcement (role of consumer and business associations) and individual
enforcement (individual consumers or traders)
Criminal enforcement?

European Consumer Centres Network (ECC-Net),

providing consumers with information on crossborder shopping and assisting in the
resolution of cross-border complaints and disputes:
http://ec.europa.eu/consumers/ecc/index_en.htm

3.3 International cooperation

International Consumer Protection and Enforcement Network, Fraud prevention

month (March 2010)

http://www.icpen.org/activities.htm
http://economie.fgov.be/nl/fod/Organigram/Algemene_directies/Controle_bemiddeling/Vert
egenwoordigingen/Internationale_samenwerking/ICPEN/fraud_prevention_2010/index.js
www.radio1.be/programmas/schokkendstebedrog/schokkendste-bedrog

unfair/misleading/aggressive commercial practice/advertising see further below

contractual malpractice
mixed practice

EXAMPLE FRAUD
Summer 2009: at least 381 Dutch and 150 Belgian people book and pre-pay a holiday
villa via www.villaspanjehuren.nl. Upon arrival, the villas do not seem to exist.
This is consumer fraud which can be qualified as a misleading B2C commercial
practice and/or contractual Malpractice

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 see proceedings in the NL

EXAMPLE FRAUD
SMEs receive a form and are kindly requested to check and correct their address, email, website, phone number, etc., with a view to include correct information
concerning your firm in an internet guide. But if you do so, you actually sign an
expensive long-term contract (Verbeter je gegevensbeter niet).
This is business fraud which can be qualified as a misleading B2B commercial
practice and/or contractual malpractice.
see e.g. Corr. Brussels: 8 March 2007: fine of 275.000

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O E F E N I N G E N
1.

EXTRA, zie noties

Badkamer
Company X sells and installs bathroom suites. To explain their higher than average prices, a routine
line in their sales pitch is to point out that competing companies Y and Z provide poor quality
installation services, using inexperienced staff.

2.

Q:

Are the competing companies victims of an unfair commercial practice?

A:

Yes. According to Article 4 MCAD, comparative advertising is unlawful, if it discredits the

products of a competitor or denigrates a competitor.

Lidl
Consumers receive an advertisement from Lidl in their postbox early in the morning. Lidl advertises
cleaning products, meat, sports shoes and some other products. During breakfast, the following ad
catches Toms attention:
Adidas sports shoes, only 35.00! He decides to go to the Lidl market in the neigbourhood, but
discovers that there are no more sports shoes in stock.

3.

Q:

Is Tom the victim of an unfair commercial practice?

Yes. [3 March 2010] Current investigation by public prosecutor in Gent, on the basis of No 5
UCPD blacklist (as implemented in Belgium), following various complaints

Loodgieter
Johnny, a plumber, falsely tells Imelda that her boiler cannot be repaired and that she will need a new
one.

4.

Q:

Is Imelda the victim of an unfair commercial practice?

A:

Yes. Article 6(1) sub e UCPD: a practice containing false information concerning the need for
a repair is prohibited, if it is likely to cause the average consumer to take a transactional
decision that he/she would not have taken otherwise.

Telefoon
A trader advertises mobile phones for sale and does not state explicitly that the phones are second
hand and/or have been reconditioned.
Q:

Are consumers the victim of an unfair commercial practice?

A:

Yes. Article 7(1) UCPD: omitting material information that the average consumer needs to take
an informed transactional decision is prohibited, if it is likely to cause the average consumer to
take a transactional decision that he would not have taken otherwise.

TV
Giselle receives an ad from a big electronics store in her postbox. It advertises computers, analogue
TVs, stereos, MP3 players, printers and faxes. The following ad catches Giselles attention: Taniba
42 Wide-screen TV, only 695.00! When she goes into the electronics store, she discovers that
there are no more wide-screen TVs in stock and that only a handful of products are actually on sale.
Q:

Is Giselle the victim of an unfair commercial practice?

A:

Yes. Giselle is the victim of No 5 UCPD blacklist. Giselle should contact one of her national
consumer associations and ask them for advice on how to lodge a complaint against the
electronics retailer.

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5.

Begrafenis ondernemer
Staff working in a funeral home put pressure on a recently bereaved relative, who is deciding on a
coffin, to buy a more expensive coffin to avoid bringing shame on the family.

6.

Q:

Is the relative the victim of an unfair commercial practice?

A:

Yes. According to Article 8 UCPD, aggressive commercial practices are prohibited. The relative
is the victim of undue influence, which might cause him to take a different transactional
decision than he would have taken otherwise.

Ryanair
In 1999 Ryanair ran an advertising campaign in various newspapers in the UK. First, it placed the socalled Bastard advertisement (with the headline EXPENSIVE BADS!), later the so-called
Expensive advertisement (with the headline EXPENSIVE BA).

7.

Q:

Was British Airways the victim of an unfair commercial practice?

A:

No (Mr Justice Jacob, 8 December 2000). The comparative advertising is not unlawful under
Article 4 MCAD, since (i) it was not likely to mislead the average customer and (ii) it was not
denigrating. The real reason BA does not like the advertising is precisely because it is true

Ryanair
On 24 April 2001 advertisements with the text Welcome Ryanair and its lowest fares. Goodbye
Sabena and its outrageously expensive flights appeared. On the following day, Ryanair
released an ad with a picture of the Brussels landmark Manneke Pis, with the line Pissed off with
Sabenas high fares? Low fares have arrived.

8.

Q:

Was Sabena the victim of an unfair commercial practice?

A:

Yes (Brussels Commercial Court, 10 July 2001). According to Article 4 MCAD, comparative
advertising is unlawful, if (1) it is misleading; (2) it is denigrating.

Computerspelletje
Jakob is a teenage boy who is into shoot em up computer games. He sees the following
advertisement in Mercenary Heroes Magazine: Get your replica of the original AK-47 automatic
rifle designed by Mikhail Kalashnikov in 1944. Each replica is fully-functional and hand-crafted.
Ammunition not included. Jakob orders the AK-47.

9.

Q:

Is Jakob the victim of an unfair commercial practice?

A:

Yes. Jakob is the victim of No 9 UCPD blacklist. Jakob's parents should contact one of the
national consumer associations and ask them for advice on what to do.

GSM NOKIA
Anna sees the following ad:Lowest price on the Nokia SV-4000 She hurries down to the
electronics store but when she gets there the salesman says that the next shipment will only arrive six
months later. He suggests that Anna purchase the Nokia SV-3000 instead, an older model and only
20 cheaper than the Nokia SV-4000.
Q:

Is Anna the victim of an unfair commercial practice?

A:

Yes. Anna is the victim of No 6 UCPD blacklist.

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10. Kelloggs
Kelloggs sells cereal bars. On their wrappers Kelloggs advertises a t-shirt for 1 offer. In fact,
various conditions apply (such as restrictions on the availability of the t-shirts). The outside of the
wrapper is too small to include all of this information.
Q:

Are consumers the victim of an unfair commercial practice?

A:

Maybe. Article 7(1) UCPD: omitting material information that the average consumer needs to
take an informed transactional decision is prohibited, if it is likely to cause the average
consumer to take a different transactional decision. Pursuant to Article 7(3), Kelloggs is less
likely to commit a misleading omission if it makes clear on the wrapper that terms and
conditions apply and provides details of where they can be found (e.g. website).

11. Telefoon
A trader is contacted by a directory business over the phone, who offers the trader an opportunity to
advertise in their business directory for a special offer price of 50. The trader considers this to be a
good price and decides to make the purchase. The trader is then sent an invoice for additional
monthly payments of 100.
Q:

Is the trader the victim of an unfair commercial practice?

A:

Yes. The oral representations over the phone are likely to be a misleading B2B advertisement
relating to the price, or manner in which the price is calculated, within the meaning of Article
2(c) and 3 MCAD.

12. Worst
A stationer sells pens. He advertises on the following basis: Pens for sale. If they dont work Ill
give you your money back or replace them. You wont find this offer elsewhere. Thomas buys a
pen.
Q:

Is Thomas the victim of an unfair commercial practice?

A:

Yes. Thomas is the victim of No 10 UCPD blacklist. If the pen is faulty at the time of purchase
the consumer would be entitled to a refund, repair or replacement under EU consumer contract
law. The traders emphasis on the unique nature of his offer to refund or replace breaches No
10.

+ Tweede vragenreeks !!!

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