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
The Black List:
practices that are ALWAYS prohibited
Fortunately, the Unfair Commercial Practices Directive simplifies the answer to this question. First of all, certain commercial practices are always prohibited under the Directive. To ensure that traders, marketing professionals and customers are clear about what is banned, a Black List of 31 unfair practices has been drawn up. The same list applies in all 28 Member States of the EU.
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Determining the legality of a commercial practice
The legality of a commercial practice that is not banned outright can be assessed by evaluating it against specific legal criteria. Two main categories of unfair commercial practices - "misleading" and "aggressive" - are described in detail in the Directive. The vast majority of practices which would be considered unfair fall under these provisions.
The average consumer test
The fairness or unfairness of a commercial practice is then assessed against the "average consumer" benchmark. The average consumer, as interpreted by the European Court of Justice, is "reasonably well-informed and reasonably observant and circumspect", taking into account social, cultural and linguistic factors. If a commercial practice is directed at a particular group of consumers (such as vulnerable categories of consumers, then an average member of that group is the benchmark.