Unfair commercial practices

·         What does unfair commercial practices mean?

According to the Directive 2005/29/EC of 11  May 2005, is to be considered un fair any practice that aimed at distorting consumers’ economic behavior with regard to a specific product.

In particular, unfair commercial practices can be either misleading or aggressive:

-        a commercial practice shall be regarded as misleading (by actions or omissions) if it contains false information or omits compulsory information, leading consumers to take a transactional decision that they would not have taken otherwise;

-        A commercial practice shall be regarded as aggressive if it significantly impairs the average consumers’ freedom of choice, by harassment, coercion or the use of physical force, causing them to take a transactional decision that he would not have taken otherwise.

·         How can I recognize an does unfair commercial practice?

First of all, you should verify if, before signing the contract, the seller has provided you with all compulsory information in order to make an informed decision.

According to the Directive 2005/29/EC, the consumer must be informed about the nature of the product, its main characteristics, such as availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling. Moreover, he seller is obliged to communicate information about his identity and assets, his qualifications, status and ownership of industrial, commercial or intellectual property rights.

The information above must be provided in a clear and transparent way: an ambiguous provision is equals to an omission.

Furthermore, please think over the seller’s behavior throughout the commercial transaction, asking yourself if, somehow, the seller used a threatening or abusive language or behaviour, threatened you to take any action that cannot legally be taken or, even without using physical force, exploited his position of power to apply on you not only a commercial but also a psychological pressure, for example playing on a specific misfortune or circumstance.

 ·         I’m afraid I’ve been a victim o fan unfair commercial behaviour.. how can I defend myself?

If you feel you have been the victim of an unfair commercial practice, the first step is to a consumer association – for national disputes - or the European Consumer Centre – for cross border ones – and get their advice: lawyer and legal advisors, specialized in consumers affairs, will  confirm that your complaint is valid and that you have been a victim of an unfair commercial practice, according to the Directive 2005/29/EC.

In order to get easier for Member States to recognize if a commercial practice is unfair and avoid misinterpretations, the Directive 2005/29/EC set up a list of 31 practices that are to be considered prohibited under all circumstances.

Having solve any doubts, the second step is to lodge a complaint. Turn to your national consumer association in order to receive assistance and be informed about the possibility to take the extrajudicial procedure for the settlement of the claim, which is cheapest and quicker that the legal one. In case of unsatisfactory solution, you can always take legal proceedings.

Finally, it is important to report your dispute to the Italian Competition Authority to allow them to evaluate the case and, if relevant, to start an investigation.

·         Unfair commercial practices: the black list

According to the Directive 2005/29/EC, article 5 – annex I and II – the following practices are to be considered as unfair in all circumstances:

- Misleading commercial practices:

1) claiming to be a signatory to a code of conduct when the trader is not;

2) displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;

3) claiming that a code of conduct has an endorsement from a public or other body which it does not have;

4) claiming that a trader 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;

5) making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising);

6) making an invitation to purchase products at a specified price and then:

a)     refusing to show the advertised item to consumers; or

b)     refusing to take orders for it or deliver it within a reasonable time; or

c)     demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch);

7) falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice;

8) undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction;

9) stating or otherwise creating the impression that a product can legally be sold when it cannot;

10) presenting rights given to consumers in law as a distinctive feature of the trader's offer;

11) using 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);

12) making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product;

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

14) 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;

15) claiming that the trader is about to cease trading or move premises when he is not;

16) claiming that products are able to facilitate winning in games of chance;

17) falsely claiming that a product is able to cure illnesses, dysfunction or malformations;

18) passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions;

19) claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent;

20) 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;

21) 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;

22) 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;

23) creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold.

- Aggressive commercial practices:

1) creating the impression that the consumer cannot leave the premises until a contract is formed;

2) 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;

3) making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation;

4) 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;

5) 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;

6) demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer (inertia selling);

7) explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy;

8) 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:

a)     there is no prize or other equivalent benefit, or

b)     taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.