§3 INTERPLAY WITH THE UNFAIR COMMERCIAL PRACTIVES DIRECTIVE

The Unfair Commercial Practices Directive 2005/29/EC of the European Parliament and of the Council (18) (‘UCPD’) prohibits unfair commercial practices in business-to-consumer transactions (19). It applies to all commercial practices that occur before, during and after a business-to-consumer transaction has taken place. Article 2(d) of the UCPD defines commercial practices as being ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. An unfair commercial practice could be a misleading or an aggressive practice (Articles 6 to 9) or an infringement of professional diligence requirements (Article 5(2)) likely to distort the transactional decision of an average consumer. Article 3(4) of the UCPD provides that, in the case of a conflict between the provisions of the UCPD and other rules of EU law regulating specific aspects of unfair commercial practices, the latter prevail and apply to those specific aspects. Therefore, insofar as Article 6a of the PID introduces a specific set of rules regarding the definition and indication of the ‘prior’ price when announcing a price reduction, it prevails over the UCPD regarding those aspects of price reduction that are governed by those specific rules (20). Accordingly, the correctness of the ‘prior’ price indicated by the seller and of the corresponding price reduction has to be assessed against the specific requirements of Article 6a of the PID. However, this does not preclude the national enforcement authorities from also applying the UCPD to the practices of traders that infringe Article 6a of the PID when they also constitute unfair practices prohibited by the UCPD, in particular misleading actions in relation to the existence of specific price advantage within the meaning of Article 6(1)(d). Moreover, as mentioned in Section 1.2.5 of the Guidance on the UCPD, the UCPD and in particular Article 6(1)(d) on the misleading claims about the existence of price advantage remains applicable to other aspects of price reductions. The UCPD could apply to different misleading aspects of price reduction practices, such as: — excessively long periods during which price reductions apply compared to the period during which the goods are sold at a price without price reduction; — advertising a reduction of, for example, ‘up to 70 % off’ when only a few of the items are reduced by 70 % and the rest are reduced at a significantly lower percentage. In that regard, it has to be noted that, apart from price reductions, a seller may use other types of practices promoting price advantages, such as: — comparisons with other prices, e.g. prices of other traders (21) or the manufacturer’s recommended retail price; — combined or tied conditional offers (e.g. ‘buy one, get two’ or ‘30 % off when buying three’. Such promotional practices are outside the scope of Article 6a of the PID but remain fully subject to the UCPD. The UCPD also covers any price reduction announcements or other types of practices promoting price advantages regarding digital content (22) and all kinds of services, as the PID applies only to movable goods (see section 1.1). A seller may also combine price comparison with a price reduction announcement regulated by Article 6a of the PID. As stated in section 2.8.2 of the UCPD guidance, a seller presenting a price comparison must pay utmost attention to ensure that the average consumer does not perceive the comparison with, e.g. the recommended retail price, as a price reduction. Where, due to its misleading presentation, the price comparison is actually perceived by an average consumer as a price reduction, such practice can amount to the breach of both the UCPD and Article 6a of the PID due to the incorrect presentation of the ‘prior’ price.

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