§4.2.8 Pricing practices

Drip pricing covers situations where traders add costs along the purchase process, for example, by adding charges which are unavoidable and should have been included in the price from the outset or otherwise arbitrarily increasing the final price. This can lead consumers to take transactional decisions they would not have taken, had the full price been provided in the first ‘invitation to purchase’. Such practice may hence amount to a misleading action or omission in breach of the UCPD. Dynamic pricing (also called real-time pricing) means changing the price for a product in a highly flexible and quick manner in response to market demands. Under the UCPD, traders can freely determine the prices they charge for their products as long as they adequately inform consumers about total costs and how they are calculated if the nature of the product means that the price cannot reasonably be calculated in advance (Articles 6(1)(d) and 7(4)(c) UCPD). However, in some circumstances, dynamic pricing practices could meet the definition of ‘unfair’ under the UCPD. For example: A dynamic pricing practice where a trader raises the price for a product during the booking process, in particular after the consumer has put it in his digital shopping cart or proceeds to payment, without giving the consumer reasonable time to complete the transaction, could be considered contrary to professional diligence or as aggressive practice under Articles 8 and 9 of the UCPD. Price discrimination is where a trader applies different prices to different consumers or groups of consumers for the same goods or services. The UCPD does not, as such, prohibit traders from price discrimination as long as they adequately inform the consumer about the total price or how it is calculated. However, price discrimination may be prohibited by other rules. In particular, the Services Directive (370) includes a general prohibition on price discrimination based on nationality and place of residence. Article 20 of the Services Directive stipulates that ‘the general conditions of access to a service, which are made available to the public at large by the provider’ may not ‘contain discriminatory provisions relating to the nationality or place of residence of the recipient’. However, Article 20 does not preclude ‘the possibility of providing for differences in the conditions of access where those differences are directly justified by objective criteria’. In addition, direct or indirect price discrimination based on the nationality of the final customer or its residence or on the place of establishment of carriers or ticket vendors within the Union is explicitly prohibited by several sector-specific pieces of EU legislation. This applies to air transport (371), maritime transport (372), rail transport (373) and bus and coach transport (374). Price discrimination can take the form of personalised pricing based on online tracking and profiling the consumer’s behaviour (375). For example: A consumer categorised as having ‘higher purchasing power’ could be recognised either by the computer’s IP address or other means when the consumer visits the trader’s website from its home computer. Prices proposed to this consumer could be, for example, on average 10 % higher than for a new customer or a consumer categorised as having ‘lower purchasing power’. The UCPD does not prevent traders from personalising their prices based on online tracking and profiling. Article 6(1)(ea) CRD, which was added by Directive (EU) 2019/2161, requires traders to inform consumers about the fact that the price was personalised on the basis of automated decision-making in case of distance and off-premises contracts. Furthermore, personalised pricing and offers may be combined with different unfair commercial practices, for example if in the context of the data-driven personalisation traders take advantage of ‘undue influence’ over the consumer under Articles 8 and 9 UCPD. Traders that personalise prices by using consumers’ personal data must also comply with the GDPR and e-Privacy Directive. This includes the requirement to only use automatic calling machines, facsimile machines (fax) or electronic mail for direct marketing if the subscriber or users have given their prior consent (Article 13 of the ePrivacy Directive), and the requirement that the data controller must stop sending direct marketing if the individual receiving it objects to its personal data being processed for that purpose, as stipulated in Article 21 GDPR. Furthermore, Articles 12-14 GDPR include information obligations regarding the processing of personal data, including the right to meaningful information on the existence of automated decision-making, and Article 22 GDPR grants the right not to be subject to a decision which produces legal effects concerning them or significantly affects them and which is based solely on automated processing of data, including profiling.

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