§2.4 Transactional decision test

Article 2(k) ‘transactional decision’ means any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting. The UCPD’s general provisions (Articles 5 to 9) cover unfair, misleading and aggressive commercial practices which are capable of distorting consumers’ economic behaviour, thereby causing or being likely to cause them to take a transactional decision that they would not have taken otherwise. The wording used in Article 2(k) suggests that the definition should be interpreted in a broad manner and that the concept of transactional decision should cover a wide range of decisions made by the consumer in relation to a product. The Court held that ‘transactional decision’ covers not only the decision whether or not to purchase a product, but also decisions directly related to that decision, in particular the decision to enter the shop: ‘Since the commercial practice at issue in the main proceedings concerns information relating to the availability of a product at an attractive price during a certain period, it must be determined whether the acts preparatory to the purchase of a product, such as the consumer’s trip to the shop or the act of entering the shop, may be regarded as constituting transactional decisions for the purposes of the directive. […] “any decision taken by a consumer concerning whether, how and on what terms to purchase” is a transactional decision. That concept therefore covers not only the decision whether or not to purchase a product, but also the decision directly related to that decision, in particular the decision to enter the shop. […] Article 2(k) of the directive must be interpreted as meaning that any decision directly related to the decision whether or not to purchase a product is covered by the concept of “transactional decision”’ (132). In that sense, the notion of transactional decision also encompasses pre-purchase and post–purchase decisions. There is a wide spectrum of transactional decisions a consumer may take in relation to a product or a service other than the decision whether to purchase. These transactional decisions may result in actions which have no legal consequences under national contract law and may be taken at any time between the moment the consumer is initially exposed to the marketing and the end of a product’s life or the final use of a service. Many pre-purchase decisions could be considered transactional decisions. For example: — A decision to travel to a sales outlet or shop as a result of a commercial offer. — A decision to agree to a sales presentation by a trader. — A decision to click through a website as a result of a commercial offer. Many post-purchase decisions made after having purchased a product or subscribed to a service can qualify as transactional decisions. For example: — A decision to withdraw from or terminate a service contract. — A decision to switch to another service provider. In addition, an unfair commercial practice directed at one consumer could lead to a transactional decision by another consumer, which the latter would not have taken otherwise. For example: Commercial practices by a trader offering online user reviews in which the trader screens negative reviews could be a misleading action or omission even though the relevant transactional decision relates to a decision by a different consumer than the one pressured into removing or not posting a negative review. In this situation, the trader’s creation of a false or misleading overall impression about the nature of the review site, or how it operates, could cause the average consumer reading the online reviews to take a decision to contact a listed trader (and subsequently contract with them) which they would not have taken, had they known that negative reviews had been withheld. The UCPD’s general provisions (Articles 5 to 9) cover unfair, misleading and aggressive commercial practices which are capable of distorting consumers’ economic behaviour. These provisions use a slightly different wording to express these requirements. Under Article 5(2) UCPD, a commercial practice is unfair if it is contrary to the requirements of professional diligence and ‘ materially distorts or is likely to materially distort ’ the economic behaviour of the average consumer. However, Articles 6, 7 and 8 prohibit a misleading or aggressive commercial practice if it causes or is likely to cause the average consumer to ‘ take a transactional decision that he would not have taken otherwise ’. The requirement that a commercial practice must be capable of distorting the consumer’s economic behaviour in order to be unfair is worded differently in Article 5(2) than in Articles 6, 7 and 8. At first sight, this apparent contradiction could pose problems of interpretation. However, Article 5(2) should be read in conjunction with Article 2(e), which states: Article 2(e) ‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise. Consequently, on the basis of Article 5(2), what determines whether a commercial practice ‘ materially distorts or is likely to materially distort ’ the consumer’s economic behaviour is whether the commercial practice causes or is likely to cause the consumer to ‘ take a transactional decision that he would not have taken otherwise ’. This is the same assessment that is to be made on the basis of Articles 6, 7 and 8. It follows that although the wording of Article 5(2) is different from the wording of the latter Articles, the requirement in relation to the material distortion of the consumer’s behaviour is the same. The broad concept of transactional decision developed by the Court (133) allows for the UCPD to apply to a variety of cases where a trader’s unfair behaviour is not limited to causing the consumer to enter into a sales or service contract. A commercial practice may be considered unfair not only if it is likely to cause the average consumer to purchase or not to purchase a product, but also if it is likely to cause the consumer to, for example: — enter a shop; — spend more time on the internet engaged in a booking process; — decide not to switch to another service provider or product; — click on a link or advertisement online; — continue using the service by browsing or scrolling. The UCPD does not require to demonstrate whether the consumer’s economic behaviour (i.e. its transactional decision) has actually been distorted. It allows an assessment as to whether a commercial practice is ‘likely’ (i.e. capable) to have such an impact on the average consumer. National enforcement authorities should therefore investigate the facts and circumstances of the individual case (i.e. in concreto), but assess also the ‘likelihood’ of the impact of that practice on the transactional decision of the average consumer (i.e. in abstracto). For example: A commercial announcement claimed that a new model of a car was ‘the safest car in the world’. In deciding whether the claim had affected any consumer in regard to making a well-founded transactional decision, a national court held that to qualify as a transactional decision, it was sufficient that the marketing was likely to raise an interest among the average consumer and trigger the consumer’s decision to take any further action (e.g. visit a store or website to obtain additional information on the product) (134).

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