Case-by-case assessment and ‘significance’ of the difference
According to the general provisions of Article 6 UCPD, marketing of goods with different composition or characteristics as being identical in different Member States is misleading and, therefore, unfair and prohibited, if such marketing is likely to affect the transactional decision of the average consumer. This requires a case-by-case assessment of the commercial practices concerned. The transactional decision test is the cornerstone and pre-requisite for the application of all the main UCPD provisions on unfair commercial practices (i.e. Articles 5 to 9). In this respect, it should be noted that, in the Single Market, consumers have a general understanding that free circulation of goods and equal access to goods is ensured. Especially, brands act in the mind of consumers as a certificate for a controlled and constant quality. Brand advertising and image building efforts contribute to such consumer perception. Moreover, claims such as ‘original’, ‘unique’ and ‘the founder's recipe’ that are frequent on, for example, food packaging further reinforce the brand owner’s message about the good’s uniform characteristics across all the markets. Therefore, consumers do not, a priori, expect branded goods sold in different countries to have different composition or characteristics. Consequently, they could refrain from purchasing the good, had they known that the good offered for sale in their country is different in terms of characteristics or composition from the good offered to consumers in other countries. However, as regards foods, a JRC study of 2020 showed that the differentiation of versions had heterogeneous impact on consumers’ purchase decisions across the studied food products and Member States. Namely, informing consumers about the differentiation of the food products resulted in some cases in their preference for the ‘domestic’ versions, and in some others for the ‘foreign’ versions of the food products (180). The JRC’s report also found that the consumer’s behaviour when confronted with differentiation of goods would also depend on the scale of the difference. The average consumers’ transactional decision is more likely to be affected if they knew that one or a number of key ingredient(s) or their content in, for example, food differs substantially (181). Larger compositional differences are more likely to lead to different sensory characteristics, which are one of the important determinants of food quality for consumers. However, this being said, it is also important to stress that the sensory perception of foods is only one of the elements that may affect consumers’ choices. For example, consumers may also want to avoid certain types of ingredients for various reasons other than those linked to their health (e.g. allergens). In particular, consumers increasingly attach importance to the environmental impact of certain good or their ingredients, their geographical origin, mode of manufacturing, chemical composition, etc. (182) The classification of ‘significant’ and ‘non-significant’ differences cannot be determined in advance as regards, for example, specific ingredients in food. Instead, the ‘significance’ of the difference is an inherent element of the case-by-case assessment of the impact of the ‘dual quality’ marketing practice on the average consumer. It is in this sense – of the impact on the average consumer – that this notion is used in Article 6(2)(c) of the UCPD.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.