§2.10 Articles 8 and 9 - aggressive commercial practices

Article 8 – Aggressive commercial practices A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken. Article 9 – Use of harassment, coercion and undue influence In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account shall be taken of: (a) its timing, location, nature or persistence; (b) the use of threatening or abusive language or behaviour; (c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgement, of which the trader is aware, to influence the consumer’s decision with regard to the product; (d) any onerous or disproportionate non-contractual barriers imposed by the trader 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; (e) any threat to take any action that cannot legally be taken. The UCPD provides a single definition of aggressive commercial practices that can be applied across the EU. The Directive prevents traders from adopting selling techniques which limit the consumer’s freedom of choice or conduct with regard to the product, thereby distorting their economic behaviour. Aggressive commercial practices are those which make use of harassment, coercion, physical force or undue influence. They can involve behaviour at the marketing stage but also practices which occur during or after a transaction has taken place. As clarified by the Court, unless assessing prohibited practices in Annex I, a commercial practice cannot be classified as aggressive ‘until a factual and case-specific assessment of its features has been carried out in the light of the criteria set out in Articles 8 and 9 of that directive’ (224). For example: A national court ruled that in order to qualify as aggressive and unfair, a commercial practice should not only influence the consumer’s transactional decision, but also be carried out using specific methods. This implies that an aggressive practice should entail active conduct by the trader (‘harassment, coercion including the use of physical force, or undue influence’) which limits the consumer’s freedom of choice (225). Aggressive practices can involve conduct already covered by other national legislation, including contract and criminal law. The UCPD adds an additional layer of protection which can be activated by public enforcement means without necessarily having to start criminal or civil law proceedings. Article 9(c) outlaws practices which exert undue influence on consumers, such as where a trader exploits a specific misfortune or circumstance of which it is aware to influence a consumer’s decision on a product. For additional explanations on the relevance of this legal basis in the digital environment, see section 4.2.7. Article 9(d) prevents traders from imposing disproportionate non-contractual barriers that are detrimental to consumers who wish to exercise their rights under a contract, including the right to terminate the contract or switch to another product or trader. This provision is important in particular to prevent non-contractual barriers to switching in telecoms (226) and energy utilities contracts. For additional explanations regarding the issue of ‘consumer lock-in’, see section 4.2.11. For example: A national court found that the practice where a trader made it particularly burdensome for its customers to terminate their service contracts with it to the point that they were often trapped in de facto automatic renewals amounted to an aggressive commercial practice (227). Article 9(e) covers any threat to take any action that cannot legally be taken. Aggressive practices often occur in doorstep sales or other off-premises sales of consumer goods and in the timeshare sector. Aggressive practices can also occur in debt recovery, where third parties are mandated to collect debts. Onerous or disproportionate switching barriers should also be regarded as aggressive practices. For example: A consumer authority ruled that sending a notice to a consumer to appear before a judge who had no jurisdiction and who had not received any application from the trader was an aggressive practice. The purpose of the practice was to intimidate consumers through undue influence (228). The Court has provided further guidance on the assessment of aggressive practices in specific cases. In the Wind Tre case, the Court held that the sale of SIM cards with pre-loaded and pre-activated services without adequately informing the consumers of these services and their costs, could be a prohibited aggressive practice of inertia selling under point 29 of Annex I (229). For the purposes of the assessment, it is not relevant whether the use of the services required conscious action by the consumer or whether the consumer could have deactivated the services, since without sufficient information, such action cannot be deemed as exercising free choice in relation to the services (230). The Court clarified in the Waternet case that point 29 of Annex I does not cover a practice of maintaining the connection to the public water supply network when a consumer moves into a previously occupied dwelling, since that consumer does not have the choice of the supplier of that service, that supplier charges cost-covering, transparent and non-discriminatory rates that are proportionate to the water consumption, and the consumer knows that that dwelling is connected to the public water supply network and that water is supplied against payment (231). The Court distinguished this scenario from the Wind Tre case and noted that the use of water requires a conscious act by the consumer and that an average consumer would likely know that a dwelling is connected to the public drinking water supply network against payment (232). In the Orange Polska case, the Court held that the signing a contract in the presence of a courier cannot be considered in all circumstances as an aggressive practice using undue influence under Articles 8-9 (233). Account must be taken of the conduct of the trader in the specific case, the effect of which is to put pressure on the consumer so that his freedom of choice is significantly impaired, and that makes the consumer feel uncomfortable or confuses his thinking concerning the transactional decision to be taken. There must therefore be an assessment of the ‘significance’ of the impairment of the average consumer’s freedom of choice or conduct with regard to a product. The fact that the consumer was not given the opportunity to read the standard contract terms beforehand is not by itself sufficient to classify that model for concluding contracts as an aggressive practice (para. 43). However, the Court gave examples of scenarios which may be deemed aggressive in para. 48: ‘By way of example, the announcement that any delay in signing the contract or amendment would mean that the subsequent conclusion thereof would be possible only under less favourable conditions, or the fact that the consumer would risk having to pay contractual penalties or, in the event of the contract being amended, would risk the trader suspending the service, may fall within that category. The fact of the courier informing the consumer that, if he refuses to sign or delays in signing the contract or amendment that has been delivered to him, he could receive an unfavourable assessment from his employer could also fall within that same category.’

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