Material information

Article 7(4) lists a number of information requirements which are considered material. This is to ensure the maximum amount of legal certainty for consumers at this critical point (207). The aim of Article 7(4) is to ensure that, whenever traders make commercial offers, they make available simultaneously, in an intelligible and unambiguous manner, enough information to enable the consumer to take an informed decision to purchase, unless that information is already apparent from the context. Failing to provide consumers with information required by Article 7(4) in the case of an invitation to purchase is a misleading omission, if this failure is likely to cause the average consumer to take a transactional decision they would not have taken otherwise. The Court has clarified that Article 7(4) contains an exhaustive list of the material information that must be included in an invitation to purchase. Nevertheless, the fact that a trader provides all the information listed in Article 7(4) does not preclude that invitation from being regarded as a misleading practice within the meaning of Article 6(1) or Article 7(2) (208). However, in order not to place unnecessary or disproportionate information burdens on traders, the requirements of Article 7(4) are not static and require different pieces of information depending on the situation. This follows, in particular, from the clarifications made both in Articles 7(1), 7(3) and 7(4) that the factual context and limits of the communication medium used should be taken into account, as discussed in the previous section. The Verband Sozialer Wettbewerb case concerned an advertisement made by a platform, showing different products that are not provided by the platform itself but by third party sellers on the platform (209). The marketplace facilitated the conclusion of contracts between traders and buyers, including consumers. The Court clarified that the advertisement can be assessed under Article 7(4), in particular to verify whether all the material information was provided, such as the names of the traders offering specific products, while taking into account the limitations of space and other specific circumstances of the case. The Court also clarified there may be limitations of space within the meaning of Article 7(3) that could justify omitting the geographical address and identity of each trader. Such information must nevertheless be supplied simply and quickly, upon access to the platform (210). Article 7(4)(a) specifically clarifies that, when assessing whether there is an omission of material information as regards the main characteristics of the product, account should be taken of ‘the medium and the product’. Establishing what constitutes a product’s main characteristics therefore depends on the product concerned and on what can be considered ‘appropriate’given the ‘medium’ used by the trader to make the commercial communication. Information about the main charactectristics for goods may already be available from their appearance, packaging or labelling that the consumer can consult at the time of sale. More complex goods may require the communication of additional information – on the product description tags in the shop or on online pages – to establish their main characteristics. Those latter product’s characteristics and restrictive conditions that the average consumers will not normally expect from the given category or kind of product must in particular be communicated to the consumer as those are especially likely to affect their transactional decisions. Such characteristics could be, for example, the limitation of the duration or of the nature and performance of a service (e.g. whether a ‘fibre’ internet service is ‘fibre-to-the-home’ or another type) or a particular composition or specification of goods (e.g. the synthetic origin of precious stones such as diamonds). Safety warnings may, subject to a case-by-case assessment, constitute a main characteristic of a product within the meaning of Article 7(4). Currently, EU sector-specific legislation on product safety usually requires traders to inform about safety issues on the product itself and/or on its packaging. In the case of online sales, it may therefore be difficult for consumers to take truly informed transactional decisions in case the relevant online website does not provide a legible picture of the product/package labelling. An important exception to this approach is contained in Article 11(2 of the Toys Safety Directive 2009/48/EC of the European Parliament and of the Council (211), which explicitly requires that safety warnings for toys, such as those specifying the minimum/maximum age of the user, must be clearly visible before the purchase, including where the purchase is made online. For most other products, the UCPD can be used as a legal basis to require traders, especially when promoting products online, to inform consumers about those safety aspects that can, taking into account the nature of the product, be considered as main characteristics within the meaning of Article 7(4). Under Article 7(4)(b), failure to inform consumers of the trader’s geographical address and identity can constitute a misleading omission. For example: In a case relating to an online dating service, a national court ordered a trader to post information about its name, address, registration number and email address in a direct and permanent manner when marketing the services it provided on the Internet. The court held that the trader’s not posting its correct address or any email address on its website constituted a misleading omission likely to cause the consumer to take a transactional decision they would not have taken otherwise (212). On the other hand, omitting to provide information about the identity of the trader could sometimes be considered as ‘apparent from the context’ within the meaning of Article 7(4). For example: — The address of a shop or restaurant which the consumer is already in. — For online shops, Article 5 of the e-Commerce Directive requires traders to make their name, address and other details including their electronic mail address easily, directly and permanently accessible. Furthermore, under Article 10 of the e-Commerce Directive, certain information (e.g. on the various technical steps necessary before the formal conclusion of a contract) must also be provided before the order is placed. Based on a case-by-case assessment, stating the commercial name of a trader could be enough to comply with the requirement in Article 7(4)(b) on the trader’s identity. The legal name must be stated in the terms and conditions of sale, but it may not necessarily be considered material information within the meaning of Article 7(4). For example: In its advertising material, a fast food company will not need to specify its legal status such as Ltd, SA, SARL, Inc. In addition to the requirement in Article 7(4)(b), the CRD lays down further information requirements on the trader’s contact details, specifically in Article 5(1) (on-premises sales) and Article 6(1) (off-premises and distance sales). Article 5(1)(c) of the e-Commerce Directive requires online service providers to render accessible to recipients of their services and competent authorities information about ‘the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner’. E-commerce traders’ email addresses may therefore be material information under Article 7(5) UCPD. This information should be easy to find (i.e. not only in the general terms and conditions) and directly and permanently accessible. Also, under the GDPR, a data controller must provide to the data subject certain mandatory information, which inter alia includes the identity (and the contact details) of the controller and of his representative, if any (except where the data subject already has that information). Article 7(4)(c) requires traders to state the total (or final) price in an invitation to purchase. This must include all applicable taxes (e.g. VAT) and charges. The final price must include applicable charges and taxes which are unavoidable and foreseeable when the offer is published. When the nature of the product means that the price cannot reasonably be calculated in advance, consumers should be properly informed about the manner in which the price is calculated, as well as, where appropriate, about all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, about the fact that such additional charges may be payable (see also Articles 5(1) and 6(1) CRD). In the Canal Digital Danmark case, the Court established that where a trader states the price for a subscription so that the consumer must pay both a monthly charge and a 6-monthly charge, that practice must be regarded as a misleading omission under Article 7 if the price of the monthly charge is particularly highlighted in the marketing, whilst the 6-monthly charge is omitted entirely or presented only in a less conspicuous manner, if such failure causes the consumer to take a transactional decision that they would not have taken otherwise (213). For example: — A consumer authority took action against a telecom operator who did not inform consumers that they would have to pay an activation fee in order to use the services provided. Consumers were only informed about this fee after the contract had been signed (214). — A consumer authority imposed administrative fines against a telecom operator who applied charges, of which the consumers were not informed, to provide services that the company could not deliver/supply (215). — A national court ruled in favour of a decision by a municipality imposing a fine on an internet provider who had failed to display the full price of its services in its commercial offers, notably by omitting to include network charges and taxes (216). Under Article 7(4)(c) of the UCPD, using ‘entry-level prices’, i.e. indicating the price 'as from' a specific minimum amount, is permitted if the final price cannot ‘reasonably be calculated in advance’ due to the nature of the product. For example: A travel agency indicated prices ‘as from’ for given flights and travel packages. A national court ruled that the UCPD does not rule out the use of entry-level prices, as long as the information provided meets the Directive’s requirements, taking into account the circumstances of a real case. It held that: ‘A reference only to an entry-level price may, therefore, be justified in situations where the price cannot reasonably be calculated in advance, having regard, inter alia, to the nature and characteristics of the product’ (217). The minimum price should, however, be a real price applicable to certain products, in accordance with the advertisement. For example: A company advertised the sale of apartments using statements such as ‘It’s cheaper than you might think. Prices starting from EUR 2 150 per square metre’. However, it turned out that there were no apartments available at the price indicated. Moreover, the price indicated did not include VAT. This commercial practice was found to be misleading by a consumer authority (218). Commercial practices where traders advertise prices that do not exist could also be in breach of points 5 and 6 of Annex I to the UCPD, as they may be considered instances of bait advertising (point 5) or bait and switch (point 6). Under Article 7(4)(d), traders must provide information about arrangements for payment, delivery and performance, if these depart from the requirements of professional diligence. This means that such information only needs to be displayed if such arrangements are to the consumer’s disadvantage compared with the standard of special skill and care a trader may be reasonably expected to exercise towards consumers. The requirement to provide for information about the complaint handling policy was deleted following amendments from Directive (EU) 2019/2161. That information is most relevant at the pre-contractual stage, which is already regulated by the CRD, and therefore the requirement was not needed for invitations to purchase at the advertising stage under the UCPD. Under Article 7(4)(e), the existence of a right of withdrawal or cancellation must be mentioned in invitations to purchase whenever applicable. Under this requirement, traders are only required to inform consumers about the existence of such rights, without detailing the conditions and procedures to exercise them. The CRD lays down more rules on the pre-contractual information to be provided to the consumer before the contract is signed, for example on e-commerce websites, during a seller’s home visit or during a sales call over the telephone (Articles 5(1)(d) and 6(1)(g)). For example, that Directive requires the trader to provide information about ‘the total price’ before the consumer is bound by a contract (Articles 5(1)(c) and 6(1)(e)). In addition, the consumer is entitled to the reimbursement of any extra payment where the consumer has not given express consent for such a payment, but the trader has inferred it by using default options, e.g. by using pre-ticked boxes (Article 22). For distance or off-premises contracts, the trader must provide information about the conditions, time limit and procedures for exercising the right of withdrawal. It must also provide the model withdrawal form set out in Annex I(B) to the Consumer Rights Directive (Article 6(1)(h)). Obligations in Article 7(4)(f), (4a) and (6) concerning online marketplaces, transparency of search results and user reviews are discussed in section 4.2.

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