European Commission


EC Guidance contents

  1. 1. The scope of application of the directive
    1. 1.1. : After-sales practices are covered by the definition of commercial practices
    2. 1.2. : Online commercial practices occurring on social media or comparison websites are covered by the definition
    3. 1.3. : Does the concept of the commercial practices cover situations of traders buying products from consumers?
    4. 1.4. : Sales promotions fall within the scope of the Directive
    5. 1.5. : Commercial practices occurring in the financial sector fall within the scope of the Directive
    6. 1.6. : Commercial practices which do not affect the consumer's economic interests do not fall within the Directive's Scope
    7. 1.7. : Commercial practices which harm only competitors' economic interests or which relate to a transaction between traders do not fall within the scope of the Directive
    8. 1.8. : The concept of trader
    9. 1.9. : The Relationship between the Directive and national law and other provisions of Community law
    10. 1.10. : The Relationship between the Directive and self regulation
  2. 2. The general provisions of the directive
    1. 2.1. : The concept of "transactional decision"
    2. 2.2. : The average consumer
    3. 2.3. : Vulnerable consumers
    4. 2.4. : Misleading actions
    5. 2.5. : Misleading environmental claims
    6. 2.6. : Invitation to purchase
  3. 3. The Black List (Annex I Practices)
    1. 3.1. : The "black list" general considerations
    2. 3.2. : Annex I, N. 9 - Products which cannot legally be sold
    3. 3.3. : Annex I, N. 17 - Products which cure illnesses, dysfunctions and malformations
    4. 3.4. : Annex I, N. 20 - Use of the word "FREE"
    5. 3.5. : Annex I, N. 31 - Prizes

EC Guidance

1. The scope of application of the directive

Article 2(c) defines product as "any good or service including immovable property, rights and obligations". This definition corresponds with the definition of a product in the Directive on Misleading and Comparative Advertising[3] and in the proposal for a Directive on Consumer Rights.[4]

[3] Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning Misleading and Comparative Advertising (codified version), OJ L 376, 27/12/2006.

[4] COM(2008) 614 final

1.1. After-sales practices are covered by the definition of commercial practices

The definition of commercial practices should be read in conjunction with Article 3 which concerns the scope of the Directive.

Commercial practices not only occur during the marketing and the sale or supply stages but also after the sale (see Article 3(1)). Recital 13 of the Directive also refers to "unfair commercial practices which occur outside any contractual relationship between a trader and a consumer or following the conclusion of a contract and during its execution".

This is also highlighted in the explanatory memorandum of the Commission's proposal for the Directive[5] (point 59):

"As explained above, rather than impose a specific unfairness category in relation to after-sale practices, this proposal applies the provisions of the Directive to commercial practices both before and after sale. The trader will consequently need to ensure that commercial practices after sale meet the same fairness standards as commercial practices before sale. However, the absence of after-sale services would not in itself be considered unfair unless the trader's conduct would lead the average consumer to have materially different expectations about the after-sale service available."


  • Debt collection activities should be regarded as after-sales commercial practices regulated by the Directive. Indeed, when a consumer owes a trader a certain amount of money (as a consumer debt), the collection of this debt (in-house or by a third party) is directly connected with the sale or supply of products;
  • After-sales services should reflect what the trader has promised (for instance, where a computer is sold with a guaranteed free hotline, the trader is not allowed to charge for its use);
  • Onerous or disproportionate switching barriers should also be regarded as after-sales practices. For example, the Italian enforcement authority fined a telecoms company for delaying and preventing its customers from switching to another service provider[6].

[5] COM (2003) 356 final

[6]PS1268 - TELE2-ostruzionismo migrazione, Provv. n. 20266 del 03/09/2009 - Pubblicazione Bollettino n. 36/2009 PS1700 - Tiscali-ostruzionismo passaggio a TELECOM, Provv. n. 20349 del 01/10/2009 - Pubblicazione Bollettino n. 40/2009.

1.2. Online commercial practices occurring on social media or comparison websites are covered by the definition

Social media, which include blogs, social networking sites, have become important avenues for commercial practices, especially hidden ones. They are sometimes used by traders to promote and advertise their products.

For example, several Member States have reported that cosmetic companies have paid bloggers to promote and advertise their products on a blog aimed at teenagers, unbeknownst to other users. In such cases, the authorities considered that the bloggers concerned were engaging in hidden commercial practices.

Unfair commercial practices may also occur on price comparison websites. An obvious case is when an online price comparison service belongs or is linked to a trader and is used to advertise its products. For example, the site "" (literally ""), a grocery price comparison service created by a French major supermarket company, was considered by French courts to be a trader's website and a tool for comparative advertising[7].

In the case of professional but independent price comparison websites, the trader's activity consists of sourcing prices from retailers and passing this information on to consumer. Such service providers should therefore also be considered as traders and they would therefore be bound by the Directive's provisions. In such cases the criteria and methodology used by the services providers and any contractual links with certain traders would have to be disclosed to the sites' users.

However, where individuals provide price comparison information purely on a non-professional basis, they are not considered as engaging in commercial practices. Again, it is for national enforcers to assess whether such sites fall inside the Directive's scope on a case-by-case basis.

[7] Tribunal de commerce de Paris - 29 mars 2007 - Carrefour c/Galaec (la coopérative groupement d'achat des centres Leclerc).

1.3. Does the concept of the commercial practices cover situations of traders buying products from consumers?

Certain traders may, in the course of their professional activity, purchase products from consumers. This is the case for example of car dealers, antique shops and retailers of second-hand goods.

According to the definition provided in the Directive, commercial practices only cover practices "directly connected with the promotion, sale or supply of a product to consumers". The reverse situation where traders purchase products from consumers does not fall within the scope of the Directive.

However, there are cases where the link between the purchase of a product by the trader from consumers and the promotion, sale or supply of a (different) product to consumers can be established. For instance, in the motor vehicle trade, it is common for consumers to enter trade-in agreements which see the trader purchasing a used vehicle from the consumer who in turn buys a vehicle from the trader. In such cases, the commercial practice is a two-step action: the purchase of the vehicle by the trader would not occur independently of the sale of a car to the consumer and the practice as a whole falls therefore within the scope of the Directive.

In relation to those cases where such a link cannot be established Member States remain free, in any event, to extend the scope of the Directive through national law or jurisprudence to cover consumer-to-business transactions, as long as this complies with EU law.

For example, the UK guidelines on the UK Regulations implementing the Directive[8] provide the following example: "a trader who is an expert on Chinese pottery tells a consumer that a Ming vase she wants to sell to him is a fake. If it is not the case, the statement would be likely to amount to a misleading action".

[8] Consumer protection from unfair trading - Guidance on the UK Regulations (May 2008) implementing the Unfair Commercial Practices Directive - Office of Fair Trading/ Department for Business Enterprise and Regulatory Reform.

1.4. Sales promotions fall within the scope of the Directive

Commercial practices such as combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers fall within the scope of the Directive and are, thus, regulated by its provisions.

Indeed, the definition of commercial practices ("directly connected with the promotion, sale or supply of a product to consumers") clearly refers to promotions. As such, the Directive includes several provisions relating to promotional practices (e.g. Article 6(d) on misleading actions as regards the existence of a specific price advantage; Annex I point 5 (bait advertising), point 7 (special offers), point 19 and 31 (prizes promotion, competition), and point 20 (free offers)).

The Court of Justice has clarified this point in the "Total Belgium" case[9]:

"[...]combined offers constitute commercial acts which clearly form part of an operator's commercial strategy and relate directly to the promotion thereof and its sales development. It follows that they do indeed constitute commercial practices within the meaning of Article 2(d) of the Directive and, consequently, fall within its scope." (point 50).

According to paragraph 69 of the Advocate General's Opinion in this case, "combined offers are based on the linking together of at least two different offers of products into a single of sale...from a business management perspective, combined offers constitute a measure of pricing and communication policy, two of the most important policies in marketing".

The Court of Justice will shed further light on the Directive's scope in its upcoming judgments, namely:

  • C-304/08 "Plus Warenhandelsgesellschaft" (Preliminary ruling - Germany). This case concerns a national ban on making consumers' participation in prize competitions or lotteries conditional on the purchase of goods or services. In her Opinion, the Advocate General argued that this type of joint offers constitute commercial practices and fall within the scope of the Directive[10].
  • C-540/08 "Mediaprint Zeitungs" (Preliminary ruling - Austria). This case concerns a national ban on offering free prizes with newspapers or other periodicals, or with other goods and services;
  • C-522/08 "Telekomunikacja Polska" (Preliminary Ruling - Poland). This case concerns a national ban, in the telecoms sector, on making the sale of telecom services dependent on the purchase of another service or piece of equipment.

[9] Joined cases C-261/07 (VTB-VAB NV v Total Belgium NV) and C-299/07 (Galatea BVBA v Sanoma Magazines Belgium NV), 23 April 2009.

[10] Opinion in case C-304/08 - 3 September 2009

1.5. Commercial practices occurring in the financial sector fall within the scope of the Directive

Directive 2002/65/EC[11] defines financial services as "any service of a banking, credit, insurance, personal pension, investment or payment nature".

Examples of unfair commercial practices in the financial sector

Financial services fall within the scope of the Directive and are subject to its provisions, including Annex I (the "black list"). As mentioned in Recital 10, the Directive "provides protection for consumers where there is no specific sectoral legislation at Community level and prohibits traders from creating a false impression of the nature of products. This is particularly important for complex products with high levels of risk to consumers, such as certain financial services products".

National authorities have already applied the provisions of the Directive in this field. Thus, the Greek[12] and Belgian authorities have already taken legal action against certain banks for providing misleading information on the risks inherent in certain financial products, namely Lehman Brothers' bonds.

When determining whether such practices were misleading, the Greek authorities took into account the fact that the consumers targeted by the banks for the sale of these bonds were ordinary current account holders rather than professional investors familiar with these types of financial products.

The Commission Staff Working Paper on Retail Financial Services[13] of 22 September 2009 identified other problematic commercial practices occurring in the financial sector, e.g.:

  • non-transparent bank fees which make it almost impossible for consumers to systematically compare all the offers presented in the market[14];
  • insufficient and unintelligible pre-contractual information (complex language, important information hidden in small print, long pages of information provided only shortly before the signature of the contract). As a consequence, consumers are not adequately informed about the features (e.g. the interest rate, the expected return and the costs involved) of the financial product;
  • for current bank accounts, possible obstacles to switching.

Under the Directive, such practices could be considered misleading: information to consumers should not be false or deceptive particularly with regards to the benefits, expected results and the risks contained in a financial product or service. Further, the presentation and calculation of fees and charges should be clear (e.g. in relation to overdraft charges). Under the Directive, information, even if factually correct, should not be presented in a deceptive manner. Finally, the Directive sets out criteria to assess aggressive practices, including using onerous or disproportionate non-contractual barriers where consumers wish to terminate the contract or to switch to another trader. Obstacles to switching may therefore be considered aggressive practices[15].

With regard to payment services (defined as services enabling cash to be placed on a payment account as well as all the operations required for operating a payment account), consumers are also protected against unintelligible information under the Payment Services Directive[16] which provides that "the information and conditions shall be given in easily understandable words and in a clear and comprehensible form, in an official language of the Member State where the payment service is offered or in any other language agreed between the parties" (Article 41).

The Commission services will collaborate with national authorities on the Directive's enforcement in the financial sector and may supplement the guidance in light of the additional cases and examples collected.

The minimum harmonisation clause

Article 3(9) specifies that Member States are allowed to regulate in a more prescriptive manner unfair commercial practices occurring in this sector - meaning that the Directive does not fully harmonise national rules regulating unfair commercial practices in the field of financial services. Recital 9 further explains that "financial services and immovable property, by reason of their complexity and inherent serious risks, necessitate detailed requirements, including positive obligations on traders. For this reason, in the field of financial services and immovable property, this Directive is without prejudice to the right of Member States to go beyond its provisions to protect the economic interests of consumers".

For example:

  • Member States can retain national rules prohibiting combined offers of financial services[17] as long as these rules otherwise comply with EU law;
  • Member States can retain more detailed information requirements for financial products or standard used forms.

The relationship with specific Directives

Where other directives provide for more specific rules for commercial practices in the financial sector, the Directive complements this existing legislation.

For example, the Consumer Credit Directive[18] contains specific provisions on advertising concerning credit agreements (such advertising shall specify for example the borrowing rate, the total amount of credit, the annual percentage rate of charge and if applicable the duration of the credit agreement) as well as a list of standardised pre-contractual information to be provided to consumers to enable them, in particular, to compare different offers. The UCP Directive complements these specific requirements. It will come into play if, for example, the information is advertised in a misleading way or if the service provider uses aggressive commercial practices.

The Payment Services Directive (Directive 2007/64/EC) contains pre-contractual information requirements in the field of payment services offered to consumers (Articles 37-39, 42) as well as requirements on how this information should be conveyed (Articles 36 and 41). The area where the Directive and the Payment Services Directive overlap is limited since the scope of the Payment Service Directive is circumscribed to payment services (whereas the Directive applies to a broader array of business-to-consumers (B2C) financial services). In this limited area, the Payment Services Directive contains more specific provisions on pre-contractual information to be provided to consumers in cases of an invitation to purchase and on the modalities for delivering pre-contractual information and is therefore lex specialis to the Directive. Outside this area, the Directive continues to apply and is therefore complementary to the Payment Services Directive (cf. Recital 22 of the Payment Services Directive). The Directive is applicable, for example, when it comes to advertising of payment services or aggressive selling of payment services.

[11] Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, OJ 271/16 of 9 October 2002.

[12] Ministry of Development, Directorate General for Consumers, Directorate for Consumer Protection, fine of 1.000.000. € imposed on 27 March 2009 to the company Citibank PLC, Athens.

[14] See the in-depth bank fees study under:

[15] In relation to bank switching, the European Banking Industry Committee has adopted common principles facilitating bank account switching which were due to be implemented as of 1st November 2009. See:

[16] Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, OJ L 319 , 05/12/2007 P. 0001 - 0036.

[17] The Court of Justice's case law on joint offers does not apply to the financial sector by virtue of Article 3(9).

[18] Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC - OJ L 133/66 of 22 May 2008

1.6. Commercial practices which do not affect the consumer's economic interests do not fall within the Directive's Scope

Article 1 of the Directive explicitly provides for the harmonisation of those practices "harming consumers' economic interests."

Where national rules aim at protecting interests which are not of an economic nature, such rules will not fall within the scope of the Directive. Therefore, the Directive does not affect the possibility for Member States to have additional and more restrictive rules regulating commercial practices for reasons of protection of the health and safety of consumers (see Article 3(3) of the Directive) or the protection of the environment.

In the same vein, national rules regulating commercial practices, including marketing and advertising, based on "taste and decency" grounds are not covered by the Directive. According to Recital 7, "[this Directive] does not address legal requirements related to taste and decency which vary widely among the Member States. Commercial practices such as, for example, commercial solicitations in the streets, may be undesirable in Member States for cultural reasons. Member States should accordingly be able to continue to ban commercial practices in their territory, in conformity with Community law, for reasons of taste and decency even where such practices do not limit consumers' freedom choice. Full account should be taken of the context of the individual case concerned in applying this Directive, in particular the general clauses thereof."

Therefore, national rules on commercial practices, including marketing and advertising, regulating the protection of human dignity, the prevention of sexual, racial and religious discrimination, or the depiction of nudity, violence, anti-social behaviour are not covered by the Directive.

In light of the above, the following examples fall outside the scope of the Directive:

  • national prohibitions or stricter rules regulating the marketing of violent online videogames;
  • national rules prohibiting advertisements for toys with a military theme directed at children.

1.7. Commercial practices which harm only competitors' economic interests or which relate to a transaction between traders do not fall within the scope of the Directive

Business-to-business transactions

Business-to-business ("B2B") commercial practices do not fall within the scope of the Directive. They are partly regulated under the Misleading and Comparative Advertising Directive[19].

Member States may decide to extend the protection granted under the Directive to B2B commercial practices (or to consumer-to-consumer). For example, Germany, Austria and Sweden have extended all of the provisions of the Directive to B2B commercial practices, while France has done the same for certain provisions only.

National rules protecting competitors' interests

Recital 6 clarifies that the Directive "neither covers nor affects the national laws on unfair commercial practices which harm only competitors' economic interests or which relate to a transaction between traders; taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices in conformity with Community law, if they choose to do so".

Thus, national rules regulating commercial practices such as below-cost selling/selling at a loss, for which the sole rationale is to ensure fair competition in the market space, do not fall within the scope of the Directive.

However, only measures which protect exclusively competitors' interests fall outside the scope of the Directive. Where consumers' and competitors' interests coincide and national measures regulate a practice with the dual aim of protecting consumers and competitors, such national measures are covered by the Directive.

For example, national measures regulating the dates of seasonal sales in order to protect SMEs from intensive sales all year long from big chain stores have as their purpose to ensure fair competition. Consequently, they do not fall within the scope of the Directive. On the other hand, national measures providing for more prescriptive rules on the way discount prices must be presented to consumers during seasonal sales or regulating the transparency of the information on sales fall within the Directive's scope.

The distinction between consumers' and traders' interest is expected to be clarified by the Court of Justice in rulings on cases currently pending before it. For example, in the Opinion delivered in the Plus Warenhandelsgesellschaft[20] case, the Advocate General considers that the Directive is applicable despite the fact that the national regulation (the UWG) protects a broader array of interests (consumers' as well as competitors' interests) (EN version not available yet):

65. À la différence du gouvernement tchèque, je n'ai aucun doute que l'article 4, point 6, de l'UWG a pour sens et pour objet de protéger le consommateur.

66. Premièrement, d'après son article 1er, l'UWG sert à protéger les concurrents et autres opérateurs, mais également les consommateurs contre la concurrence déloyale. Deuxièmement, la genèse ainsi que le sens et l'objet de l'article 4, point 6, de l'UWG plaident en faveur d'une telle interprétation. Cette disposition codifie en effet la jurisprudence du Bundesgerichtshof relative à l'ancienne version de l'article 1er de l'UWG, selon laquelle il était contraire au droit de la concurrence de subordonner la participation à des concours ou à des jeux promotionnels à l'achat d'une marchandise ou à la commande d'une prestation. D'après les travaux préparatoires, l'objectif du texte est de protéger le consommateur contre toute atteinte excessive portée à sa liberté de décision au moyen de l'exploitation de la passion du jeu. L'idée de départ est que l'offre combinant participation à un jeu promotionnel et vente de marchandises peut faire basculer la décision d'achat même d'un consommateur moyen raisonnable de telle façon que cette décision ne sera plus fondée sur des considérations rationnelles, mais sur le désir d'emporte le lot mis en jeu. Cela reflète d'ailleurs le sentiment unanime de la doctrine.

67. Partant, cette disposition nationale relève également du champ d'application personnel de la directive 2005/29.

In the Opinion, the Advocate General suggests a number of criteria to assess whether such "mixed" national measures (i.e. protecting both consumers' and competitors' interests) fall within the scope of the Directive. Thus, the general purpose of the law, the background and genesis of the measures in question, the preparatory works and academic comments can be taken into account in order to establish whether a provision aims at protecting consumers.

[19] Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version), OJ L 376, 27/12/2006.

[20] Opinion in case C-304/08 - 3 September 2009

1.8. The concept of trader

This definition covers not only traders who act on their own account but also intermediaries acting on behalf of the trader. For example, agents paid by the trader to market or advertise their products will be traders in the understanding of the Directive.

Since the Directive regulates commercial practices in a broad sense and covers the particular situation of "hidden" traders (see below), it is important that national enforcers assess on a case-by-case basis which persons can be defined as traders in given circumstances.

For example, there may be situations where individuals who appear to be consumers selling products to other consumers could be in fact traders ("hidden B2C" sales). National enforcers should make an assessment taking the following into account: whether the seller has a profit-seeking motive; the number, amount and frequency of transactions; the seller's sales turnover; whether the seller purchases products in order to re-sell them. Persons whose main activity is to sell products from their homes on the internet using auction websites on a very frequent basis, seeking profit and/or purchasing products with the aim of reselling them at a higher price, could for example fall within the definition of trader.

Organisations which pursue charitable or other ethical goals will qualify as traders under the Directive depending on whether they engage in commercial activities (e.g. the sale of ethical products). When they act as traders they should thus comply with the provisions of the Directive as far as their commercial activities are concerned (for instance, information about the origin of the product or its ethical aspects should not be misleading). Several Member States have reported the case of a disabled painters' association offering postcards made by its members for free, but inviting people to make a contribution. National enforcers have considered that the association was acting as a trader and have assessed the practice under the provisions of the Directive.

The fact that an organisation is structured as "non-profit" or "not-for-profit" is immaterial to the assessment of whether such an organisation is a trader or not under the Directive. For example, if a private health insurance company describes itself as a "not-for-profit" organisation on the grounds that it has no shareholders and reinvests its trading surplus in the business this does not put in doubt that such a company is a trader under the Directive.

Public authorities can also be traders when carrying out commercial activities. For example, a municipality marketing discounted prices for tickets to an art exhibition which they organize will fall under the definition of trader for the purposes of the Directive.

Finally, the Directive tackles the particular situation of "hidden" traders or traders representing themselves as consumers. Under Annex I of the Directive (the "black list") n. 22, the following practice is prohibited in all circumstances:

Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.

For example, "hidden" traders may be:

  • a hotel website including flattering comments supposedly by consumers which are actually drafted by the hotel owner;
  • a bookshop advertising its "customers' choice" books where customers have never been consulted and the choice is made by the bookseller.

1.9.1. Primacy of EU law

According to the case law of the Court of Justice, directives which have been incorrectly transposed or not transposed at all are capable of having direct vertical effect in national law vis-à-vis state entities, if the Directive's provisions are sufficiently clear, precise and unconditional to be properly enforced in national jurisdictions[21]. However, directives do not have horizontal direct effect[22] (for example, consumers cannot use the provisions of the Directive against a company).

In case of conflict between a national provision and a provision of the Directive or in case of non-transposition of the Directive, national courts and enforcement authorities have an obligation to interpret national law, as far as possible, in the light of the wording and of the purpose of the Directive[23].

For example, in a recent decision[24] given on appeal in a case concerning an outright prohibition on combined offers contained in the French Consumer Code, the Cour d'Appel de Paris acknowledged its obligation to interpret national provisions in a manner which gives full effect to the provisions of the Directive. The Cour d'Appel ruled that, in the light of the light of the judgment of the Court of Justice in the "Total Belgium" case, it had at its disposal all the elements necessary to set aside the national prohibition in question, without having to make recourse to a preliminary ruling procedure before the Court of Justice.

    No related directive article found for this EC Guidance

[21] See Case 441/74 Van Duyn v Home Office [1974] ECR 1337, Case 148/78 Pubblico Ministero v Tullio Ratti [1979] ECR 1629 and Case C-62/00 Marks&Spencer plc v Commissioners of Customs&Excise [2002] ECR I-6325.

[22]CJCE Marshall - Case 152/74; CJCE Paola Facini Dori C 91/92.

[23] See Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 and Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135.

[24] Cour d'Appel de Paris - 14 mai 2009 - France Telecom et Orange c/S.A.S. Free, S.A. Neuf Cegetel et L'Association la Ligue de football professionnel.

1.9.2. The full harmonisation character of the Directive

The Directive is based on the principle of full harmonisation. This means that Member States can no longer implement or apply either less or more restrictive or prescriptive consumer protection measures in the area it harmonises. As the Preamble to the Directive explains, in order to remove internal market barriers caused by regulatory disparities and to increase legal certainty for both consumers and businesses, it was necessary to replace existing national systems with a uniform regulatory framework at Community level (see in particular Recitals 5, 12 and 13).

The full harmonisation effects of the Directive have been spelled out in the "Total Belgium" case[25]. The Court of Justice, while examining the compatibility of a Belgian law prohibition on combined offers with the Directive's provisions, held that "the Directive fully harmonises those rules at the Community level. Accordingly, [...] Member States may not adopt stricter rules than those provided for in the Directive, even in order to achieve a higher level of consumer protection". Thus, the Directive was found to preclude a national prohibition of combined offers[26].

There are currently two types of limitations to the full harmonisation effect of the Directive. First, according to Article 3(9), "in relation to 'financial services' [...] and immovable property, Member States may impose requirements which are more restrictive or prescriptive than this Directive in the field which it approximates". Thus, minimum harmonisation applies to these two sectors. As Recital 9 explains, "financial services and immovable property, by reason of their complexity and inherent serious risks, necessitate detailed requirements, including positive obligations on traders". Consequently, in these sectors, Member States can impose rules which go beyond the provisions of the Directive, as long as they comply with EU law (e.g., in the field of payment services, Directive 2007/64/EC establishes fully harmonised rules).

Second, a temporary derogation from the full harmonisation principle applies to national provisions which implement directives containing minimum harmonisation clauses. According to Article 3(5), for a period of six years from 12 June 2007, Member States shall be able to continue to apply more restrictive or prescriptive national provisions. Thus, Member States may apply existing rules which had been established pursuant to the minimum harmonisation clauses contained in, for example, Directive 98/6/EC on the indication of prices of products offered to consumers[27] or Directive 97/7/EC on distance contracts[28]. However, such measures must be essential and proportionate in attaining the objective of consumer protection envisaged in those measures.

Both limitations will be subject to the Directive's review to be carried out by 12 June 2011 (see Article 18).

[25] Joined Cases C-261/07 and C-299/07 VTB-VAB NV v Total Belgium, and Galatea BVBA v Sanoma Magazines Belgium NV, not yet reported.

[26]See also the Opinion of Advocate General Trstenjak, of 3 September 2009, in Case C-304/08 Zentrale zur Bekampfung unlauteren Wettbewerbs e.V. v Plus Warenhandelsgesellschaft mbH, pending. Also relevant is Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG v 'Osterreich'-Zeitungsverlag GmbH, pending.

[27] OJ L 80, 18.3.1998, p. 27-31.

[28] OJ L 144, 4.6.1997, p. 19-27.

1.9.3. Relationship between the UCP Directive and Community sectoral legislation

The Directive is the general law governing unfair commercial practices in business-to-consumer transactions. It covers all B2C commercial practices, unless the Directive explicitly stipulates otherwise such as in the case of conditions of establishment or of authorisation regimes (see Article 3(5)).

Where sectoral legislation is in place and its provisions overlap with the Directive's general provisions, the corresponding provisions of the lex specialis will prevail. Article 3(4) of the Directive clarifies that "in case of conflict between the provisions of this Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects".

Often, such conflicts arise from the fact that the lex specialis contains more detailed pre-contractual information requirements, or stricter rules on the way the information is presented to consumers (see Recital 10 of the Directive).

For example, the Air Services Regulation[29] contains specific provisions on the price information to be made available to the general public. According to Article 23 of the Regulation, in addition to the final price, which must include all applicable taxes, charges, surcharges and fees, air carriers should also provide a breakdown of the final price. Therefore, in respect of pre-contractual information regarding prices for air fares, these more specific provisions will apply.

However, the Directive complements these sectoral provisions and fills any remaining gaps in the protection against unfair commercial practices. In respect of air fares, for example, the Directive's provisions come into play to prohibit commercial practices which are likely to deceive the average consumer (such as advertising and marketing of air fares), and practices which constitute aggressive conduct (such as onerous and disproportionate non-contractual barriers imposed on consumers who wish to exercise a contractual right to terminate a contract). Furthermore, the Directive's provisions also complement the provisions of the Air Services Regulation in relation to the information on prices, and require, for example, the disclosure of postal charges, where applicable (see Article 7(4)(c) of the Directive).

[29] Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules on the operation of air services in the Community.

1.9.4. Information requirements in the Unfair Commercial Practices Directive and the Services Directive

Contrary to sector-specific legislation, the Services Directive has a broad horizontal scope of application - it applies to services in general as defined in the Treaty on the Functioning of the European Union ("TFEU"), with certain exceptions. It can therefore not be considered as lex specialis in relation to the Unfair Commercial Practices Directive within the meaning of Article 3(4).

As regards information requirements, this means that the provisions in Article 22 of the Services Directive will apply in addition to the information required in the case of an invitation to purchase under Article 7(4) of the Unfair Commercial Practices Directive. However, Member States will be prevented from imposing national information requirements for invitations to purchase over and above those set out in the Unfair Commercial Practices Directive and in the Services Directive.

1.10.2. General considerations on the role of self regulation

The Directive recognises the importance of self regulation mechanisms and clarifies the role that code owners and self regulatory bodies can play in enforcement.

In particular, based on Article 10 of the Directive, Member States may, in addition to ensuring effective enforcement of the Directive (as required by Art 11 of the Directive), encourage the control exercised by code owners on unfair commercial practices.

When the rules included in self regulatory codes are strict and rigorously applied by code owners they may indeed reduce the need for administrative or judicial enforcement action. Moreover, when the standards are high and industry operators largely comply with them, such rules may be a useful term of reference for national authorities and courts in assessing whether, in a concrete case, a commercial practice is unfair.

Specific provisions of the Directive on self regulation

The Directive contains several provisions which aim at preventing traders from unduly exploiting the trust which consumers may have in self regulatory codes. The Directive does not provide for specific rules on the validity of a code of conduct but it relies on the assumption that misleading statements about a trader's affiliation or about the endorsement from a self regulatory body may per se not only distort the economic behaviour of consumers but also undermine the trust that consumers have in self regulatory codes.

In addition to Article 6, obliging a trader to comply with a code of conduct to which he or she has committed in a commercial communication, the Directive contains specific "black-listed" provisions which aim at ensuring that traders make responsible use of codes of conduct in their marketing activities.