§2.7 Article 5 - professional diligence

Article 5 – Prohibition of unfair commercial practices (150) 1. Unfair commercial practices shall be prohibited. 2. A commercial practice shall be unfair if: (a) it is contrary to the requirements of professional diligence, and (b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. Article 2 (h) ‘professional diligence’ means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader’s field of activity; Article 5(2) provides a general clause setting two cumulative criteria for assessing whether commercial practices should be deemed unfair. It functions as a ‘safety net’ to make sure that any unfair practice which is not caught by other provisions of the UCPD (i.e. that is neither misleading, aggressive or listed in Annex I) can still be penalised. The provision is also future proof as it allows for emerging unfair practices to be tackled. Article 5(2) prohibits commercial practices that are contrary to the requirements of professional diligence if they are likely to materially distort the economic behaviour of the average consumer. This is a self-standing criterion – it is not an additional cumulative test that needs to be met for a practice to be found in breach of any of the specific categories of unfair practices in Articles 6 to 9 or Annex I to the UCPD. This is illustrated by the UCPD flowchart. This was confirmed by the Court: ‘45 […] having regard both to the wording and to the structure of Articles 5 and 6(1) of that directive, and to its general scheme, a commercial practice must be regarded as ‘misleading’ within the meaning of the second of those provisions if the criteria set out there are satisfied, and it is not necessary to determine whether the condition of that practice’s being contrary to the requirements of professional diligence, laid down in Article 5(2)(a) of that directive, is also met. 46 The interpretation above is the only one capable of preserving the effectiveness of the specific rules laid down in Articles 6 to 9 of the Unfair Commercial Practices Directive. Indeed, if the conditions for the application of those articles were identical to those set out in Article 5(2) of the directive, those provisions would have no practical significance, even though they are intended to protect the consumer from the most common unfair commercial practices […]’ (151) The notion of ‘professional diligence’ encompasses principles which were already well-established in the laws of the Member States before the adoption of the UCPD, such as ‘honest market practice’, ‘good faith’ and ‘good market practice’. These principles emphasise normative values that apply in the specific field of business activity. It may include principles derived from national and international standards and codes of conduct (see also section 2.8.4 on non-compliance with codes of conduct). For example: — An enforcement authority acted against a trader providing satellite television services on the grounds that it had not shown professional diligence. Although contracts were limited in time, if the consumer did not take steps to prevent renewal at the time of expiry, the trader would automatically consider the contract renewed (152). — A national court held that, in an action brought by an enforcement authority, a debt collection agency that exerted pressure on consumers to pay bills for agreements that were legally invalid and refused to answer their questions, violated professional diligence. Consumers have the right to know what bill the debt collection agency is collecting, and whether or not that claim is correct. The authority based the interpretation of the requirements of professional diligence on the code of conduct of an association of debt collection agencies and a national court confirmed this interpretation. It also ruled that even for companies that are not a member of the association, this code of conduct can be used as a reference for determining what constitutes professional conduct (153). It follows from Article 5(2)(b) that in order to be found contrary to the requirements of professional diligence, a commercial practice must also be considered likely to ‘materially distort the economic behaviour’ of consumers. This concept is discussed in section 2.4 above. For example: An enforcement authority took action against a debt collector. The authority found that the trader applied undue pressure and repeated aggressive practices against consumers, concluding that such behaviour was contrary to the requirements of professional diligence and impaired the freedom of choice of the average consumer, thus causing them to take a transactional decision that they would not have taken otherwise (154).

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