§2.3 The concept of commercial practice

Article 2(d) business-to-consumer commercial practices means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers; The Court held that the sole criterion in Article 2(d) of the UCPD is that the trader’s practice must be directly connected with the promotion, sale or supply of a product or service to consumers (121). A commercial practice can be ‘directly connected’ to the promotion of a product for example by providing ‘information relating to the availability of a product at an attractive price during a certain period’ (122). Based on the case-law currently available, it is difficult to define a limit for when a commercial practice would no longer be ‘directly connected’ to the promotion of a product. However, as an example, where a trader sells a street map not containing any promotional messages, and the consumer subsequently uses that street map to find his way to a given shop, it would seem unreasonable to qualify the selling of that street map as a commercial practice ‘directly connected’ to the promotion of a product in that given shop. The Court stated that the UCPD covers activities of a professional following on from a commercial transaction relating to any good or service and following the conclusion of a contract or during the performance of that contract (123). On this basis, the Court concluded that: ‘[…] the fact that the action of the professional concerned took place on only one occasion and affected only one single consumer is immaterial in this context. Neither the definitions set out in Articles 2(c) and (d), 3(1) and 6(1) of the Unfair Commercial Practices Directive nor the latter, considered as a whole, contain any indication that the act or omission on the part of the professional must be recurrent or must concern more than one consumer.’ ‘[…] the communication, by a professional to a consumer, of erroneous information, such as that at issue in the main proceedings, must be classified as a ‘misleading commercial practice’, within the meaning of that directive, even though that information concerned only one single consumer.’ (124) The Court has provided guidance on the limits of the scope of the UCPD in relation to the concept of commercial practices in the Kirschstein case. It held that there is a difference between the trader’s ‘commercial practices’ that are closely linked to the promotion and sale or supply of products to consumers, hence caught by the Directive, and rules to which those practices refer, that relate to the ‘product’ itself (e.g. authorisation of service providers that can issue university degrees) and which therefore do fall outside the UCPD’ scope of application. ‘It follows from the above that a national rule which aims to determine the operator who is authorised to provide a service in a commercial transaction, without directly regulating the practices which that operator may subsequently implement to promote or dispose of the sales of that service, cannot be considered to relate to a commercial practice in direct connection with the provision of that service, within the meaning of Directive 2005/29.’ (125) Concerning the area of print media advertisements, while the Court acknowledged the particularly broad definition of ‘commercial practices’ and that the UCPD may apply in a situation where an operator’s commercial practices are put to use by another undertaking, it ruled in the RLvS case that the UCPD, and in particular point 11 of Annex I concerning advertorials, cannot be relied upon against newspaper publishers (126). The Court referred to the lack of EU secondary legislation for the written press and explained that this provision was not intended as such to require newspaper publishers to prevent possible unfair commercial practices by advertisers (127). Traders must also be cautious when making ethical and corporate social responsibility claims, which can cover various aspects of the traders operating methods, for example concerning working conditions, animal welfare, charity contributions etc. Corporate social responsibility refers to companies taking responsibility for their impact on society by having in place a process to integrate social, environmental, ethical and consumer concerns into their business operations and core strategy. Claims regarding such aspects have become a marketing tool used to meet the growing concern of consumers that traders comply with ethical and social standards. Such claims may have an impact on the transactional decision of a consumer who has to choose between two competing products of similar quality and price. For this reason, they can be deemed to be ‘directly connected with the promotion, sale or supply of a product’ and therefore qualify as a commercial practice within the meaning of the UCPD. Due to the significant similarities between ethical/corporate social responsibility claims and environmental claims, the key principles applying to environmental claims may also apply to ethical and corporate social responsibility claims (see section 4.1).

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