The Unfair Commercial Practices Directive, which came into force five years ago, has the main objective of boosting consumer confidence and encouraging consumers to cross-border shop within the EU’s Single Market.
The directive prohibits unfair and abusive practices
By shopping across EU borders, consumers can benefit from a wider choice of products and also from lower prices. Since the Unfair Commercial Practices Directive came into force, the number of consumers making cross-border purchases has increased, but there are still 60 per cent of consumers who still do not take advantage of the Single Market.
This directive provides a common set of rules that aim at banning unfair and abusive trading practices across the European market. Furthermore, the directive, by simplifying rules on unfair commercial practices, makes it easier for consumers to know what their rights are, no matter where they’re shopping in the EU.
The directive prohibits unfair and abusive practices. A trading practice is considered unfair if it is likely to impair a consumer’s ability to make an informed choice or else leads consumers to a buying decision the consumer would not have made. These are misleading and aggressive sales practices which are prohibited.
A commercial practice is considered misleading if it either contains false information, or is likely to deceive the average consumer, even if the information presented is correct.
Leaving out important information when promoting products or services is also considered misleading, because consumers need information to make informed choices. Any information provided to consumers has to be clear, intelligible and unambiguous.
Specific misleading commercial practices that are prohibited include: false claims that a particular product or service is free when it is not; prize promotions when, in actual fact, there is no prize or consumers must pay to claim a prize; false claims that a trader is about to cease trading or move premises; false claims that products can cure illnesses or disabilities; giving the impression that after-sales service is available in another EU member state when it is not; and falsely creating the impression that the trader is not acting on behalf of his trade but on behalf of a consumer.
Commercial practices are considered aggressive and are therefore prohibited when a buyer’s freedom of choice is impaired through harassment, coercion, including physical force or undue influence.
Aggressive practices include sales tactics that try to intimidate or coerce consumers; the use of threatening or abusive behaviour; and taking advantage of vulnerable consumers, such as cases of mental or physical infirmity, age or credulity.
The law also lists a number of situations that fall under aggressive commercial practices. These include situations whereby the trader creates the impression that the consumer cannot leave the premises until a contract is formed and signed; or cases where a trader refuses to leave a consumer’s home after being requested to do so; or explicitly claiming that if he does not, the trader’s job is in jeopardy.
It is also prohibited to take a consumer to a remote destination with no apparent return transport unless the consumer signs the contract. Even advertisements directly aimed at getting children to buy products or persuade adults to buy for them is considered an aggressive practice and thus is not allowed.
Unfair commercial practices are banned in any business-to-consumer transaction, irrespective of the product or service, or the circumstance of the transaction, being it face-to-face, via telephone, internet and mail.
Furthermore, this legislation only protects the economic behaviour of consumers. Other interests, such as health, safety, taste and decency are outside the scope of the legislation.
Should we encounter misleading or aggressive trading practices, these may be reported to the Office for Consumer Affairs on 2395 2000 or Freephone 8007 4400.
odette.vella@mccaa.org.mt
Odette Vella is senior information officer, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.