Unfair commercial practices

According to the definition laid down in the Consumer Protection Act, the commercial practices of a trader in respect of a consumer are deemed to be unfair if they are contrary to the requirements of professional diligence and are capable of appreciably affecting the consumer’s decision-making, thereby causing him to take a transactional decision that he would not have taken otherwise. Such practices are prohibited.

Professional diligence means the standard of special skill and care which a trader or his employee may be expected to exercise, commensurate with honest market practice. It covers both special skills and honest behaviour.

A consumer should be viewed as an “average consumer” who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors.

Before signing a contract, therefore, it is vital for consumers to properly familiarise themselves with all the information provided by the trader, to read the contractual conditions, price lists and suchlike, and not to rely solely on oral information which cannot subsequently be verified.

Where a commercial practice is specifically aimed at “vulnerable persons” (such as children, senior citizens, disabled persons and others who are particularly vulnerable because of their mental or physical infirmity or age), unfairness is assessed from the perspective of the average member of that group, i.e. more strictly. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements, which is therefore allowed in respect of such groups.

An example of a general unfair commercial practice: After a long bus ride with nothing to eat or drink, a group of consumers is invited to a restaurant, where they are offered food and drinks for free. At the same time they are presented with information about a financial product in a truthful and comprehensible manner. As they are having their lunch, they pay insufficient attention to this information. However, the lunch is followed by only a brief summary and the consumers are then offered an insurance contract to sign. This is a general unfair commercial practice rather than a misleading or aggressive one.

In particular, unfair commercial practices include misleading commercial practices and aggressive commercial practices.