Unfair commercial practices

Unfair business-to-consumer commercial practices, according to art. 2) of the Directive 2005/29/EC, involve “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 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”.

In other words, all commercial practices that materially distort the economic behaviour of consumers, inducing them to take decisions that they would not have taken without an intentionally malicious contribution by the trader, are to be considered as unfair and misleading.

A commercial practice can be unfair by either act or omission.

It is misleading by omission if it does not provide material information on the product such as the main characteristics of the product, the geographical address and the identity of the trader, the price inclusive of taxes, and, for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

On the other side, it is misleading by act if it contains false information and is therefore untruthful or in any way deceives or is likely to deceive the average consumer.

The European Directive regulating unfair business-to-consumer commercial practices is 2005/29/EC of 11 May 2005. It has amended previous directives 84/450/CEE concerning misleading and comparative advertising, 97/7/CE on the protection of consumers in respect of distance contracts, 98/27/CE on injunctions for the protection of consumers' interests, and 2002/65/CE concerning the distance marketing of consumer financial services.

The aim of this Directive is to harmonise the laws of the Member States relating to unfair commercial practices since they show marked differences that can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. The EU intends to grant the same level of protection to all consumers, regardless of the country in which the good/service is bought or sold.