Unfair commercial practices under Dutch law

Dutch law bans traders from using unfair commercial practices against consumers. A practice is unfair if it goes against professional diligence and is likely to materially distort the average consumer’s economic behaviour. Within that general rule sit two specific categories – misleading practices and aggressive practices – and within those, two blacklists of practices that count as unfair in every case, with no further assessment needed.

What makes a practice misleading?

A practice is misleading if it contains false information, or if information that is factually correct is presented in a way that deceives, or is likely to deceive, the average consumer. This covers claims about a product’s nature, its main characteristics, the price or how it is calculated, and the trader’s identity.

Leaving information out counts too. If you fail to give consumers the information they need to decide, hide it, or provide it unclearly or too late, that is a misleading omission. For an invitation to purchase, the law sets out what must be stated, including the total price and the arrangements for payment and delivery.

What makes a practice aggressive?

A practice is aggressive if harassment, coercion or undue influence significantly limits the consumer’s freedom of choice. This includes persistent unwanted approaches, exploiting a specific misfortune, and creating the impression that the consumer cannot leave until a contract is signed.

Telephone selling is the recurring example. A trader may in principle only call a consumer who has given prior consent, and telephone sales of certain subscription services – energy, telecoms, water – require written confirmation before the consumer is bound. That removes much of the pressure that once made the channel effective.

Which practices are always unfair?

Two blacklists set out practices that are unfair regardless of circumstances. They include falsely claiming to be a signatory to a code of conduct, bait advertising, falsely stating that a product will only be available for a very limited time, describing a product as free when it is not, and creating the impression that the consumer has won a prize when claiming it requires a payment.

Who has to prove the claim is true?

Here the law favours consumers. If a trader has made a factual claim in a commercial practice, the burden of proving that the claim is accurate rests on the trader. You do not have to disprove the advertisement as a consumer; the trader has to substantiate it.

What can you do if you have been misled?

An unfair commercial practice is an unlawful act. A contract concluded as a result of it can be annulled, and you can claim damages. You can also complain to the Authority for Consumers and Markets (Autoriteit Consument en Markt, ACM), which supervises compliance and can impose substantial fines and order a practice to stop. The ACM does not resolve individual claims or award you money, so a civil claim is still the route to compensation.

What should traders check first?

Three issues account for most enforcement action: prices that are not the total price at the point they are displayed, scarcity or discount claims that cannot be substantiated, and sales scripts that leave the consumer feeling unable to end the call. Each is fixable within a day and expensive to defend once a complaint is filed.

In summary

• A commercial practice is unfair if it is contrary to professional diligence and is likely to distort the average consumer’s economic behaviour.
• Misleading practices involve false or deceptive information, or important information that is left out, unclear or given too late.
• Aggressive practices involve harassment, coercion or undue influence, with telephone selling as the most common example.
• Two blacklists make certain practices unfair automatically, without any need to assess the circumstances.
• The trader, not the consumer, carries the burden of proving that a factual claim is accurate.

FAQ

Can I cancel a contract if I was misled? Yes. A contract entered into because of an unfair commercial practice can be annulled, and you can claim damages on top of that.

Will a complaint to the ACM get me my money back? No. The ACM can fine a trader or order a practice to stop, but it does not award compensation to individual consumers; you need a civil claim for that.

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