§2.9.4 The factual context and limits of the communication medium used

Article 7(1) underlines that to assess whether a commercial practice is misleading, it needs to be considered ‘in its factual context, taking account of all its features and circumstances and the limitations of the communication medium ’. Article 7(3) should be read in conjunction with Article 7(1). Under Article 7(3), when assessing whether material information has been omitted, account should be taken of: — the limits of space and time of the communication medium used; — any measures taken by the trader to make the information available to consumers by other means. The above provisions apply to all sections of Article 7. In addition, under the introductory part of Article 7(4), traders do not need to provide information in invitations to purchase that is already apparent from the context. The Court has clarified that the assessment of a misleading omission in Article 7(1) and (3) UCPD must take into account the above-mentioned factors, even if this is not expressly referred to in the wording of the national legislation in question but instead can be found, for example, in preparatory works (199). In the same case, the Court also found that the limits of time and space of the communication medium used must be weighed against the nature and characteristics of a given product. It is required to assess whether the trader found it impossible to include or clearly communicate the information. Where it is impossible to include all material information concerning a product, the trader may refer on the product to its website. However, the website must contain information on the main characteristics of the product, the price and other conditions as required by Article 7 (200). According to Article 7(2), providing material information ‘in an unclear, unintelligible, ambiguous or untimely manner’ is a misleading omission, if this is likely to cause the average consumer to take a transactional decision they would not have taken otherwise. For example: A telephone operator advertised on TV a mobile phone subscription by highlighting the specific price benefits, whilst the restrictions and conditions of the offer were only presented in small print which appeared on the screen for a very short time. A national court held that, despite the limits of space and time of the medium used (TV), nothing prevented the trader to more clearly indicate such central facts. Hence, to the extent that material information had been omitted, the advertising was found to be misleading (201). Article 7(4)(a) also states that, in invitations to purchase, account should be taken of ‘the medium and the product’ when clarifying whether the main characteristics of the product is one of the elements to be regarded as material information. In the Ving Sverige case, the Court found that ‘it may be sufficient for only certain of a product’s main characteristics to be given and for the trader to refer in addition to its website, on the condition that on that site there is essential information on the product’s main characteristics, price and other terms in accordance with the requirements in Article 7 of that directive.’ (202) Given their importance for the consumer’s purchasing decision, information about a product’s full price and main characteristics should be prominently displayed. For example: A national court considered as misleading a leaflet claiming that 3 % savings on purchases could have been made by consumers using the promoted credit card. The court considered that the general statement in the leaflet led consumers to believe that savings would apply to any kind of purchase made with the credit card, whereas in reality important limitations applied. Such limitations were only specified in the contract terms: this was not deemed to be sufficient, as material information about the characteristics of the advertised product was omitted (203). The overall extent of the required information on a product’s main characteristics must be assessed based on the context of the invitation to purchase, the typology of product and the communication medium used.

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