Unfair commercial practices are forbidden in marketing and customer relationships. Unfair practices include misleading the consumer, failing to provide material information and the use of aggressive practices.
A practice is considered unfair, if it
- is contrary to generally accepted, appropriate practices in business or trade (incl. legislation, case law, supervisory authorities' instructions, the Consolidated ICC Code of Advertising and Marketing Communication Practice and the code of conduct in the sector in question)
- is likely to clearly impair the consumer's ability to make an informed purchasing decision or another decision related to consumer goods and services, and cause the consumer to make a decision that he or she would not otherwise have made.
For a practice to be considered unfair, it is not necessary for the consumer to have decided to purchase the goods or services in question, or that the practice could be proven to have caused concrete harm or damage to a consumer.
A purchasing decision involves factors other than the issue of whether or not the consumer purchases the product or service. The price and other terms on which the product or service is acquired are included within the scope of the purchasing decision. Other decisions related to the consumer product or service may include whether the consumer exercises the rights to which he or she is entitled during the contract relationship, by law or under the agreement.
- If marketing is targeted at a specific consumer group, its possible unfairness is assessed from the viewpoint of the consumer group in question
- If a practice is conducive to impairing the decision-making of consumers who are particularly susceptible to influence due to their age, physical or mental infirmity or credulity, and the trader should in all fairness have realised this, the unfairness of the practice is assessed from the viewpoint of such a consumer group.