A commercial practice is unfair, if it is contrary to the requirements of professional diligence, it materially distorts or is likely to materially distort the economic behaviour with regard to the product or service of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

In particular, commercial practices are unfair which:

• are misleading actions and misleading omissions and
• are aggressive commercial practices.

The list of commercial practices considered unfair under all circumstances is provided in Annex 1 to Act No 250/2007 on customer protection.

3. Misleading actions and misleading omissions

A commercial practice is regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause them to take a transactional decision that they would not have taken otherwise:

• the existence or nature of the product;
• the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
• the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
• the price or the manner in which the price is calculated, or the existence of a specific price advantage;
• the need for a service, part, replacement or repair;
• the nature, attributes and rights of the trader or their agent, such as their identity and assets, qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or their awards and distinctions; or
• the consumer's rights, including the right to replacement or reimbursement under a special legislation, or the risks they may face.

A commercial practice is also regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise, and it involves:

• any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
• non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound.

A commercial practice is regarded as misleading, if it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

It is also regarded as a misleading omission if a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to above or fails to identify the commercial intent of the commercial practice, if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise.

4. Aggressive commercial practice

In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account is to be taken of:

• its timing, location, nature or persistence;
• the use of threatening or abusive language or behaviour;
• the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the product;
• any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader;
• any threat to take any action that cannot be done legally.

5. Sanctions

Any person who violates consumer rights by an unfair commercial practice is deemed to have committed a criminal offence. Unfair commercial practices are forbidden. Any person who violates consumer rights by breaching those obligations is deemed to have committed an offence. A fine up to EUR 332 may be imposed for an offence.

For breach of obligations stipulated by law, supervisory authorities will impose a fine of up to EUR 66 388 on the producer, trader, importer or supplier. for a repeated breaches of obligations over a period of 12 months, the fine will be up to EUR 165 969.50. Penalty in the form of a fine may be imposed within 1 year from the date when the supervisory authority identified the breach of obligation, at the latest within 3 years from when the breach of the obligation occurred.