Dutch law prohibits traders from using unfair commercial practices towards consumers, and it does so in a structure worth understanding before assessing any particular complaint. A practice is unfair if it is contrary to professional diligence and materially distorts the economic behaviour of the average consumer. Within that general prohibition sit two specific categories – misleading practices and aggressive practices – and within those, two blacklists of practices that are unfair in all circumstances.
Misleading practices
A practice is misleading where it contains false information, or where information that is factually correct is presented in a way that deceives or is likely to deceive the average consumer about matters such as the nature of the product, its main characteristics, the price or the way it is calculated, or the trader’s identity.
Omission counts as well. Failing to give the consumer information they need to make an informed decision, hiding it, or providing it in an unclear or untimely way is a misleading omission. In an invitation to purchase the law lists what must be stated, including the total price and the arrangements for payment and delivery.
Aggressive practices
A practice is aggressive where harassment, coercion or undue influence significantly impairs the consumer’s freedom of choice. Persistent unwanted approaches, exploiting a specific misfortune, and creating the impression that the consumer cannot leave until a contract is signed all fall here.
Telephone selling is the recurring example. Since the rules on unsolicited calls were tightened, a trader may in principle only call a consumer who has given prior consent, and telephone sales of certain services require written confirmation before the consumer is bound – which removes much of the pressure that made the channel effective in the first place.
The blacklists
Two lists set out practices that are always unfair, with no assessment of circumstances required. 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 what
This is where the law is most favourable to consumers. Where a trader has made a factual claim in a commercial practice, the burden of proving the accuracy of that claim rests on the trader. The consumer does not have to disprove the advertisement; the trader has to substantiate it.
What a consumer can do
An unfair commercial practice is an unlawful act. A contract concluded as a result of it can be annulled, and damages can be claimed. Complaints can also be made to the Authority for Consumers and Markets, which supervises compliance and can impose substantial fines and order practices to stop; it does not, however, resolve individual claims or award you money.
What traders should check
Three things account for most enforcement: prices that are not the total price at the point they are displayed, scarcity and discount claims that cannot be substantiated, and sales scripts that leave the consumer feeling unable to end the call. Each is fixable in an afternoon and expensive to defend.
Advice
We advise consumers on annulment and damages after an unfair practice, and businesses on advertising, sales scripts and regulatory correspondence. Please contact Law & More.
