§1.2.1 Relationship with other EU legislation

Article 3(4) and Recital 10 are key features of the UCPD. They clarify that the UCPD complements other EU legislation (‘Community rules’) that regulate specific aspects of unfair commercial practices. Consequently, the UCPD works as a ‘safety net’ ensuring that a high common level of consumer protection against unfair commercial practices can be maintained in all sectors, including by complementing and filling gaps in other EU law. Where EU law, sector-specific or other, is in place and its provisions overlap with the provisions of the UCPD, the corresponding provisions of the lex specialis will prevail. Article 3(4) of the Directive clarifies indeed that ‘in case of conflict between the provisions of this Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects’. Article 3(4) read in conjunction with Recital 10 implies that a provision of EU law will prevail over the UCPD if all of the following three conditions are fulfilled: — it has the status of EU law, — it regulates a specific aspect of commercial practices, and — there is a conflict between the two provisions or the content of the other EU law provision overlaps with the content of the relevant UCPD provision, for instance by regulating the conduct at stake in a more detailed manner and/or by being applicable to a specific sector (20). For example: Article 12 of the Mortgage Credit Directive (21) prohibits, in principle, tying practices whereby a credit agreement for a mortgage is sold with another financial product and is not made available separately. This per se prohibition conflicts with the UCPD because tying practices would be unfair and thus prohibited under the UCPD only following a case-by-case assessment. Its Article 12 prevails over the general rules of the UCPD. Thus, tying practices within the meaning of Article 12 of the Mortgage Credit Directive are prohibited as such. Where all three conditions set out above are fulfilled, the UCPD will not apply to the specific aspect of the commercial practice regulated, for example, by a sector-specific rule. The UCPD continues nonetheless to remain relevant to assess other possible aspects of the commercial practice not covered by the sector-specific provisions, such as, for example, aggressive behaviour by a trader. For example: In order to switch to a different telecom provider, a consumer is required by his or her current provider to fill in a form. However, the form is not accessible online and the provider is not replying to the consumer's emails/phone-calls. Article 106 of the European Electronic Communications Code (EECC) (22) provides that, when switching, subscribers may retain their phone number, that the porting of numbers shall be carried out within the shortest possible time and that no direct charges are applied to end-users. The EECC also provides in Article 106(6) that providers must cooperate in good faith and must not delay or abuse the process. National regulatory authorities are responsible for ensuring the efficiency and simplicity of the switching process for the end-user. Furthermore, traders’ practices regarding the switching can be assessed under Articles 8 and 9(d) UCPD, which prohibit disproportionate non-contractual barriers to switching as an aggressive commercial practice. It follows from the above that, in general, the application of the UCPD is not per se excluded just because other EU legislation is in place which regulates specific aspects of unfair commercial practices. In the Abcur case (23), the Court noted: ‘(…) the referring court asks, in essence, whether, if medicinal products for human use […] fall within the scope of Directive 2001/83, advertising practices relating to those medicinal products […] can also fall within the scope of Directive 2005/29.(…) As the Court has already held, Directive 2005/29 is characterised by a particularly wide scope ratione materiae which extends to any commercial practice directly connected with the promotion, sale or supply of a product to consumers. (…) the answer (…) is that even where medicinal products for human use, such as those at issue in the main proceedings, fall within the scope of Directive 2001/83, advertising practices relating to those medicinal products […] can also fall within the scope of Directive 2005/29 provided that the conditions for application of that directive are satisfied.’ Therefore the UCPD can usually be applied together with sector-specific EU rules in a complementary manner because the more specific requirements laid down under other EU rules usually add to the general requirements set out in the UCPD. Typically, the UCPD can be used to prevent traders from providing the information required by the sector specific legislation in a misleading or aggressive manner, unless this aspect is specifically regulated by the sector-specific rules. The interplay with the information obligations in sector-specific EU instruments was highlighted in the Dyson v BSH case (24). The case concerned the labelling of vacuum cleaners and whether the lack of specific information about testing conditions, which is not required under the sector-specific rules at hand (25), could constitute a misleading omission. The Court confirmed that, in case of conflict between the UCPD and sector-specific legislation, the latter will prevail, which in this case meant that information that is not required by the EU energy label cannot be considered as ‘material information’ and that other information cannot be displayed. The interplay with sector-specific rules was also addressed in the Mezina case (26). The case concerned health claims that were made in relation to natural food supplements. Regulation (EC) No 1924/2006 of the European Parliament and of the Council (27) on nutrition and health claims made on foods applies to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods to be delivered as such to the final consumer. In case of conflict between the provisions of Regulation (EC) No 1924/2006 and the UCPD, the former will take precedence in relation to health claims.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07