Unfair commercial practices under Dutch law: what is prohibited?

Dutch law bans traders from using unfair commercial practices against consumers. Under Article 6:193b of the Dutch Civil Code (BW), a practice is unfair if it goes against professional diligence and is likely to materially distort the average consumer’s economic behaviour; misleading and aggressive practices are always unfair, and two blacklists name practices that are unfair in every case, with no further assessment needed.

What makes a practice misleading?

Under Article 6:193c BW, a practice is misleading if it contains false information, or if correct information is presented in a way that deceives, or is likely to deceive, the average consumer. This covers claims about a product’s nature and main characteristics, the price or how it is calculated, and the trader’s identity.

Leaving information out counts too. Under Article 6:193d BW, failing to give consumers the information they need to decide, hiding it or providing it unclearly or too late is a misleading omission. For an invitation to purchase, the law lists what must be stated, including the total price and the arrangements for payment and delivery.

What makes a practice aggressive?

Under Article 6:193h BW, 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, or an existing customer about similar products, and must stop when the consumer objects. Sales scripts that keep the consumer on the line after a clear “no” are a typical target of enforcement by the Authority for Consumers and Markets (ACM).

Which practices are always unfair?

Two blacklists, in Articles 6:193g (misleading) and 6:193i (aggressive) BW, 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 is available only 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?

In court, the burden of proof often shifts to the trader. Under Article 6:193j(1) BW, the trader must prove the factual accuracy and completeness of the information it provided, where that seems appropriate in the circumstances of the case. The court weighs the legitimate interests of both parties, but in practice a trader must be able to substantiate its claims.

What can you do if you have been misled?

A contract concluded as a result of an unfair commercial practice is voidable (vernietigbaar) under Article 6:193j(3) BW, so you can have it annulled. The trader is also liable for the damage it caused, unless it proves the practice is not attributable to it (Article 6:193j(2) BW).

You can complain to the ACM, which supervises compliance and can impose fines and order a practice to stop. The ACM does not resolve individual claims or award you money, so a civil claim before the subdistrict court (kantonrechter) is the route to compensation; consumer organisations can also bring a collective action.

What should you check as a consumer?

• Whether the price you were shown was the total price, including unavoidable costs.
• Whether a scarcity or discount claim (“only today”, “was €99”) was true.
• Whether you gave consent before a sales call, and whether the caller stopped when you said no.
• Whether you kept screenshots of the advertisement or offer.
• When you want to annul the contract: send the trader a written notice of annulment.

What should you check as a trader?

Three issues account for most enforcement action by the ACM: 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.

• Whether every displayed price is the total price, including VAT and unavoidable costs.
• Whether you can document each “from” price, discount and scarcity claim.
• Whether you have recorded consent for every telemarketing call.
• Whether your scripts end the call when the consumer objects.
• Whether your website contains any practice from the blacklists in Articles 6:193g and 6:193i BW.

What can we do for you with unfair commercial practices?

Through our corporate lawyer practice we can help you, for example:

• We review your advertising, price displays and sales scripts against Articles 6:193a-6:193j BW.
• We draft a notice of annulment and a claim for damages against a trader.
• We respond on your behalf to an information request or enforcement letter from the ACM.
• We assess whether a claim in your marketing can be substantiated before you publish it.
• We represent you before the subdistrict court or the district court.

Summary

• A commercial practice is unfair if it is contrary to professional diligence and likely to distort the average consumer’s economic behaviour (Article 6:193b BW).
• 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.
• A contract concluded through an unfair practice is voidable, and the court can require the trader to prove its claims (Article 6:193j BW).

Frequently asked questions