Is it unfair?
How to tell when a commercial practice is unfair
The burning question for consumers will undoubtedly be: "How can I tell when a particular commercial practice is unfair?"
- The Black List: practices that are ALWAYS prohibited
- Misleading with false information
- Misleading by leaving out information
- Aggressive marketing
- Other cases
Aggressive marketing
Marketing is considered aggressive if the average consumer's freedom of choice or conduct is significantly impaired. The Directive contains a list of criteria to help determine whether a commercial practice uses harassment, coercion, including physical force, or undue influence.
"Undue influence" means "exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force". The result of such undue influence is that it significantly limits the consumer's ability to take an informed decision.
Undue influence?
YES: If a consumer is already indebted to a trader and behind with payments, the trader would be using undue influence if he said he would reschedule the debt on condition that the consumer bought another product.
NO: Offering an incentive to a consumer, such as a free bus to an out-of-town store, or refreshments while shopping, is not undue influence. The consumer's ability to make an informed transactional decision would not be impaired. In the same way, it would be acceptable to offer a sales promotion.
A lot of gas but no energy
Filip decides to do his part to combat global warming by switching to a local cooperative that supplies 100% green energy. When he calls his gas and electricity supplier they tell him that he has to fill out a form in triplicate, send one copy to them and one copy to the network operator. They are unable (or unwilling) to tell him who the network operator is in his region or how to contact them. The lady on the phone also mentions that it will take 3 months to process the change.
Filip gives up in frustration. So much for good intentions.
Obstacles to switch
Traders cannot impose any onerous or disproportionate non-contractual barriers where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader.