§4.2.1 Online platforms and their commercial practices

Online platforms generally provide infrastructure and enable interactions between suppliers and users for the provision of goods, services, digital content and information online. Online platforms’ business models range from merely allowing users to look for information supplied by third parties to directly enabling contractual transactions between third party traders and consumers. Platforms can also advertise and sell, in their own name, different kinds of products. The UCPD applies to the commercial practices of the platform and of the traders using the platform to promote their products to the consumers. Given that the UCPD only applies in B2C situations, the first step in assessing its application to an online platform provider should be to evaluate whether it qualifies as a ‘trader’ or ‘acting in the name of or on behalf of a trader’ under Article 2(b) UCPD. According to a case-by-case assessment, a platform provider may be acting for purposes relating to its business whenever, for example, it charges a commission on the transactions between suppliers and users, provides additional paid services or draws revenues from targeted advertising. For example: — A grocery price comparison service was considered by a national court to be a trader’s website and a tool for comparative advertising (338). — A consumer organisation running a comparison tool offering information to consumers against payment of a subscription would, in principle, have to comply with the requirements of the UCPD. This service could be part of the organisation’s strategy to gain commercial profit from its services to consumers, making it a ‘trader’ within the meaning of Article 2(b) of the Directive. The second step in assessing whether the UCPD is applicable should be to evaluate whether the platform provider engages in ‘business-to-consumer commercial practices’ within the meaning of Article 2(d), towards users (suppliers and recipients) who qualify as ‘consumers’ within the meaning of Article 2(a) UCPD. A platform qualifying as a trader must always comply with EU consumer law as far as its own commercial practices are concerned, regardless of the fact that these practices may concern products supplied by third parties and not the platforms themselves. This is possible due to the very broad definition of ‘commercial practice’ in Article 3(1) UCPD as a ‘practice directly connected with the promotion, sale or supply of a product to consumers’, without setting additional requirements as to the origin of the product. In Verband Sozialer Wettbewerb case the Court confirmed this large scope of ‘commercial practice’ in a case concerning advertising by an online platform in a printed medium: ‘31. Lastly, it must be stated that the obligation to include in an invitation to purchase [products] the information referred to in Article 7(4)(b) of Directive 2005/29 does not depend on the issue of whether the supplier of the products concerned is the author of that invitation [i.e. the online platform] or a third party. Consequently, where an advertisement [by an online platform] in a print medium promotes products from different suppliers, the information required by that provision remains necessary, subject to the limitations of space mentioned in paragraph 29 above.’ (339) Transparency obligations In particular, platforms are subject to the transparency requirements of Articles 6 and 7 UCPD, which requires them to refrain from misleading actions and omissions whenever engaging in the promotion, sale or supply of a product to consumers. For instance, online platforms should be transparent about the main characteristics of their services under Article 7 UCPD. Depending on the specific business model of the platform, different elements could be relevant for the consumer, such as the coverage of the platform’s offer (e.g. sectors and types of and number of suppliers), the frequency of updates of the information (in particular on the price and availability of products), how it selects the suppliers operating through it and whether and, if so, what checks it performs in relation to their reliability. Such information may enable consumers to understand that the availability of products and suppliers on the platform is not exhaustive and that they may find other offers using a different information channel. It will also help to avoid the risk of consumers being misled by listings marked as a ‘best deal’ or ‘recommended choice’. Promoting prices or products where the platform is reasonably aware of the fact that they are not actually available could be in breach of Articles 6 and 7 UCPD and, according to the circumstances, several provisions of the black list in Annex I to the UCPD, which prohibit, in all circumstances, bait advertising (point No 5), bait and switch (point No 6) and passing on materially inaccurate information on market conditions with the intention of inducing the consumer to acquire that product at conditions less favourable than normal market conditions (point No 18). Misleading statements about limited availability of a product may be in breach of Article 6(1)(b) of the UCPD. Where a platform allows consumers to purchase products together at a more favourable price (‘collective buying’ platforms), they should clearly inform the consumers about the characteristics and price of the offer and its supplier. In particular, the characteristics of the product/service obtained following a group purchase should not be inferior to those available at the regular price, unless consumers are clearly informed that this is the case. The conditions under which consumers can benefit from the product (e.g. minimum number of buyers, duration of the offer) should be clearly spelled out. For example: — An offer for a specific treatment in a wellness centre is advertised at a 50 % reduction if bought from a group buying platform. Such an offer is likely to fall under Article 6(1)(b) and (d) (as a misleading indication of a price advantage) if the treatment offered lasts only 30 minutes whereas at full, ordinary price it lasts 60 minutes, unless consumers were clearly informed otherwise. — In the case of package offers, i.e. a combination of several products or services, when the price may vary depending on the number/volume of products or services acquired, the total package price must be indicated to avoid any impression that a larger number of products or services may be acquired at a lower price when they may not (340). Professional diligence Furthermore, under Article 5(2) UCPD, no platform qualifying as a trader should act contrary to the requirements of professional diligence in its commercial practices towards consumers. Under Article 2(h) UCPD, ‘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. The professional diligence duties of these traders vis-à-vis consumers under the UCPD is different from, whilst complementary to, the regime on exemptions from liability established under Article 14 of the e-Commerce Directive for illegal information hosted by service providers at the request of third parties. Furthermore, Article 15(1) of the e-Commerce Directive prevents Member States from imposing on such hosting service providers a general obligation to monitor the stored information or to actively engage in fact-finding. In this respect, Article 1(3) of the e-Commerce Directive makes it clear that the e-Commerce Directive ‘complements Community law applicable to information society services without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts and national legislation implementing them in so far as this does not restrict the freedom to provide information society services’. This means that the e-Commerce Directive and relevant EU consumer acquis apply in principle in a complementary manner (341). As a result of their professional diligence obligations under the UCPD, platforms should take appropriate measures which – without amounting to a general obligation to monitor or carry out fact-finding – enable relevant third party traders to comply with EU consumer and marketing law requirements. For example, such measures could imply that platforms design their interfaces in a way that enables third party traders to present information to platform users in compliance with EU marketing and consumer law – especially information required by Article 7(4) UCPD in the case of invitations to purchase and Article 6 of the CRD. For example, online marketplaces must enable the third party suppliers to inform consumers about their identity, contact details, the price of the product and any additional costs that the consumer may face such as via in-app purchases. If online platforms falling within the scope of the UCPD fail to comply with such professional diligence requirements or otherwise promote, sell or supply a product to users in an unfair manner, they can be found in breach of EU consumer law. They cannot invoke the intermediary liability exemption under the e-Commerce Directive as far as their own commercial practices are concerned as that exemption relates only to illegal information stored at the request of third parties.

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