§2.8.1 General misleading information

Article 6(1)(a) to (g) prohibit misleading actions which are capable of deceiving the average consumer on a wide range of elements, including: — the existence of the product; — its main characteristics (e.g. its composition, method of manufacture, geographical or commercial origin, the risks and results to be expected from its use); — the price or the manner in which it is calculated or the existence of a specific price advantage; — the nature, attributes and rights of the trader. Article 6 clearly covers any commercial practice which ‘ contains false information and is therefore untruthful’. Information about the product’s ‘main characteristics’ must be provided in an invitation to purchase in accordance with Article 7(4) UCPD and before the conclusion of the contract in accordance with the Consumer Rights Directive. Article 6(1)(b) UCPD prohibits providing incorrect information about the main characteristics of a product if it is likely to cause the average consumer to take a transactional decision they would not have taken otherwise. For example: — A consumer authority acted against a trader who falsely claimed that its loans to consumers had the lowest interest rates on the market. In addition, the trader included incorrect information in advertisements by indicating that consumers would be granted loans regardless of their credit history (155). — For IT products such as external hard disks, USB sticks, mobile phones and tablets, the storage capacity or memory is major element of their main characteristics. A consumer authority has taken action against a trader who promoted storage capacities of IT products that differed significantly from the actual storage capacity of the products (156). Similarly, a consumer association launched a class action on the basis of investigations among different brands of IT devices that revealed a difference on average of one third between advertised and actual memory. — A flight agency communicated with consumers in a national language prior to the transaction. However, the after sales customer assistance was only provided in the English language, which consumers were not informed of prior to the transaction. This commercial practice was considered to be a violation of Article 6(1)(b) UCPD in conjunction with point 8 of Annex I (157). — A national court found that the fact that a ticket has been resold qualifies as a main characteristic of the ticket because the buyer of a resold ticket might be denied entry by the original seller (158). Articles 6(1)(c) and 6(1)(f) cover various information regarding the trader and the nature of the sales process. This may also include commercial practices where a trader falsely claims or implies that it is authorised to sell a product when the product is subject to a selective distribution network. A commercial practice, often referred to as ‘up to claims’, implies traders putting forward, as a marketing argument, the maximum benefit consumers can expect from the use of a product. An ‘up to claim’ may be found misleading within the meaning of Articles 6 if it does not reflect the reality of the offer made by the trader and if it is likely to cause the consumer to take a transactional decision they would not have taken otherwise. ‘Up to’ claims could be misleading if traders are not in a position to substantiate that consumers are likely to achieve the maximum results promised under normal circumstances. See also section 2.8.2 on price advantages. Whether an ‘up to’ claim is misleading must be assessed on a case-by-case basis. Different criteria could be relevant, such as: — Whether they clearly disclose results and benefits that the average consumer can reasonably expect to achieve, including any applicable condition or limitation. Not doing so could qualify as misleading in relation to the product’s ‘main characteristics’: — by omitting material information within the meaning of Article 7(4)(a) (in the case of an invitation to purchase); — as a misleading action within the meaning of Article 6(1)(b) of the UCPD; — Whether the trader has adequate evidence readily available to substantiate the claim within the meaning of Article 12 of the UCPD. Information provided to consumers should also not deceive or be likely to deceive the consumer in any way, including in the overall presentation, even if the information is factually correct. For example: — A financial institution promoted an investment product as a low risk 5-year deposit with privileged interest and guaranteed capital return on its expiry date. In fact, investors lost the interest on the capital and an important part of the capital initially invested. A consumer authority found this commercial practice misleading, as investors had received inadequate and misleading information about the financial product offered (159). — A national tribunal considered as misleading the advertising by a mobile phone operator since the trader, while claiming 30 % cheaper mobile rates than its competitors, failed to indicate in an unambiguous manner that the first minute of phone conversation was not on a per second basis. The tribunal considered that, due to the ambiguous presentation of the offer, the consumer was not in in a position to take an informed decision (160). The UCPD does not provide for any formal requirement to indicate the geographical (or commercial) origin of a product or its composition (161). However, such requirements may exist in sector-specific legislation (162). Furthermore, under the UCPD, misleading the consumer on such elements could fall under the ban laid down in Article 6(1)(b) of the UCPD if such false or deceiving information is likely to make the consumer take a purchase decision they would not have taken otherwise. Some decisions by national courts specifically relate to the application of the UCPD to misleading origin claims. For example: A company from the Dominican Republic was marketing its production of rum in the Union by making several references to Cuba on the bottles and in commercial materials. A national court held that mentioning a famous geographical location on a product whereas the product does not originate from that location constitutes a misleading commercial practice (163). Questions have been raised also regarding the information about the composition of products, such as goods containing non-animal components labelled or marked with the term ‘leather’. For example: National courts have decided that it is misleading to market furniture that does not include any leather with claims that parts of the furniture are made of ‘textile leather’. The courts stressed that the average consumer would presume a presence of leather in such furniture (164). Under Article 6(1)(g), traders should not mislead consumers over their consumer rights. For example: — A national court ruled against an appeal by a trader who was fined by an enforcement authority for misleading consumers over their right of withdrawal. Rather than making explicit reference to the fact that consumers had 14 days to withdraw from the contract, the contracts only included a reference to the relevant provisions of the national legislation, in unclear and misleading language (165). — A trader was prominently advertising a 1-year free commercial guarantee in order to promote a payable extension of this commercial guarantee for up to three or 5 years. The company did not properly inform consumers about the existence of the legal guarantee of conformity to which they are entitled under the Consumer Sales and Guarantees Directive within 2 years of delivery of the product. A consumer authority found this commercial practice misleading, in particular on the basis of Article 6(1)(g) of the UCPD (166). That decision was subsequently upheld by a national court (167).

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