Unfair commercial practices
A commercial practice is considered unfair if the following conditions are met:
it is contrary to the requirements of professional diligence;
it materially distorts or is likely to materially distort the economic behavior 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.
The average consumer represents the average member of the group to which the analyzed practice is addressed. For example: the practice is addressed to all the women or to all the men.
The evaluation of the average consumer can be done by referral to the jurisprudence of the European Court of Justice who, is several cases, defined it as a person with a reasonable information level, reasonably attentive and cautious, taking in consideration all the social, cultural and language factors.
The unfair commercial practices can be: misleading or aggressive.
Misleading commercial practices
The misleading commercial practices may be: misleading actions or misleading omissions.
A commercial practice shall be regarded as a misleading action 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 either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise.
In each of the two situations, the essential element for the practice to be regarded as misleading is that it causes or is likely to cause the consumer to take a transactional decision that he would not have taken otherwise.
The conditions are objective, so it is not necessary to prove that the consumer has been actually deceived. Also, there is no need to prove a financial loss.
To make a choice which is suited to its needs and requirements, the consumer must get clear, comprehensive and complete information regarding the goods or services he wishes to buy. The professional must give all this information the average consumer needs.
A commercial practice shall be regarded as misleading omission if:
it omits material information that the average consumer needs, according to the context, to take an informed transactional decision;
a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner material information
a trader fails to identify the commercial intent of the commercial practice if not already apparent from the context.
In either of these cases, in order to be regarded as misleading, the omission mustcause or is likely to cause the consumer to take a transactional decision that he would not have taken otherwise.
Aggressive commercial practices
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 otherwise.
Level 1 – There is no special section on unfair commercial practices in the topic Ask the expert.
Level 2 – For an in depth description regarding your rights, please see the Infosheet – Unfair commercial practices.
Level 3 – For specialized information please see the Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market.