2.1.3. The meaning of transactional decision

The Directive stipulates in very plain language that it applies "...to unfair business-to-consumer commercial practices...before, during and after a commercial transaction in relation to a product" (Article 3).

There is a wide spectrum of transactional decisions which may be taken by the consumer in relation to a product or a service other than a decision to purchase (or not to do so). These transactional decisions may result in actions which have no legal consequences under national contract law and may be taken at any time between the moment the consumer is initially exposed to the marketing and the end of the a product's life or the final use of a service.

Pre-Purchase decisions

As shown in the example above, most common activities which consumers carry out in a "pre-purchase" stage are to be considered transactional decisions. These include, for instance, a decision to travel to a sales outlet or shop, the decision to enter a shop (e.g. after reading a poster on the shop window or a billboard in the street), the decision to agree to a sales presentation by a trader or his or her representatives and the decision to continue with a web booking process. Further examples include a consumer's decision to agree to a "free security survey" of his home, which is genuinely free, but whose sole purpose is to allow the trader to persuade the consumer to buy an alarm system.

Post-Purchase decisions

Decisions which consumers take after having purchased a product or contracted/subscribed for a service can also qualify as transactional decisions. The main category of post-purchase transactional decisions are those which relate to the exercise of consumers' contractual rights, such as the right of withdrawal, cancellation, the right to terminate a service contract or the right to change the product or switch to another trader.

For example, a consumer purchases a product and the trader makes him believe that he must purchase a warranty to have rights in case of defects.

The implications of having this broad concept of transactional decision are significant. It allows an extensive application of the Directive to a variety of cases where the impact of the unfairness of the trader's behaviour does not cause the consumer to enter a transaction or a service contract. Following this approach, a commercial practice may be considered unfair not only if it is likely to cause the average consumer to purchase or not to purchase a product but also if it is likely to cause the consumer to enter a shop, spend more time on the Internet engaged in a booking process or decide to not switch to another trader or product.

As such, the Directive does not limit the transactional decision test to the evaluation as to whether the consumer's economic behaviour (i.e. its transactional decisions) has actually been distorted. It requires an assessment of whether that commercial practice is capable (i.e. "likely") to have such an impact on the average consumer.

National enforcers should therefore investigate the facts and circumstances of an individual case (i.e. in concreto), but assess only the "likelihood" of the impact of the practice on the transactional decision of the average consumer (i.e. in abstracto)[32].

For example, the fact that there is no evidence that a misleading commercial communication has actually induced consumers to make a further click to proceed with an online booking does not prevent a national authorities from considering the transactional decision test as fulfilled if the likelihood of that happening (i.e. the risk) is real.

Footnotes

[32] See also moreover 2.2. The Average Consumer.

Links to articles of the Directive

Keywords