3.4.3 Specific liability in tort:• unfair commercial practices rules

Besides the general tort liability provision of section 6:162 DCC, the DCC has sections that contain lex specialis rules with respect to misleading and comparative advertising and unfair commercial practices respectively. The misleading advertising rules are laid down in sections 6:194 and 6:195 DCC. Since the adoption of the unfair commercial practices rules, laid down in sections 6:193a up to and including 193j DCC, the misleading advertising rules only remain relevant for claimants who qualify as professionals. The unfair commercial practices rules are only applicable to consumers.

The first advantage of both sets of rules is the double reversal of the burden of proof laid down in section 6:195 DCC and section 193j DCC, respectively. Section 3.8 elaborates upon the double reversal of proof.

The second advantage of these legi speciali is their protective nature as a consequence of the fact that these rules are the implementation of EU directives. Even though the Misleading Advertising Directive's primary purpose is the improvement of the interaal market,1 article 1 of the Misleading Advertising Directive states clearly that its purpose is the protection of consumers against misleading advertising as well.2 The Unfair Commercial Practices Directive was adopted on the basis of article 95(3) of the Treaty establishing the European Community. Article 95(3) of the Treaty establishing the European Community gives the European legislator a mandate to adopt directives with a twofold objective:

As a consequence of the adoption of the Lisbon Treaty, this article is renumbered and incorporated in article 114(3) of the Treaty on the Functioning of the European Union. Article 114(3) of the Treaty on the Functioning of the European Union gives the European legislator a mandate to adopt directives with the aforementioned twofold objective.

As already mentioned, the primary objective of the misleading advertising rules is the improvement of the interaal market; consumers can only rely subordinately on the protective nature of these rules. European directives adopted on the basis of article 114(3) of the Treaty on the Functioning of the European Union, however, provide the aforementioned objectives an equal status. As a consequence, national courts are required to give due effect to the objective of consumer protection when interpreting the unfair commercial practices rules. The Unfair Commercial Practices Directive is one of the European directives that constitute the EU consumer acquis. The establishment of an interaal market requires the adoption of a EU consumer acquis. If goods and services can move freely across borders on the basis of mutual recognition, consumers need to be provided with the necessary information with respect to these goods and services in order to be able to make an informed decision. The division between professionals and consumers is one of the basic pillars of the consumer acquis. The European legislator is of the opinion that consumers need a high level of protection in the interaal market.

Even though article 114(3) of the Treaty on the Functioning of the European Union cannot be relied upon directly by a claimant as a basis for the obligations which are binding on a Member State, the national courts are required when applying the domestic laws implementing the provisions of the Unfair Commercial Practices Directive, to interpret them in accordance with the purpose of attaining a high level of consumer protection.4 If a national court would not be obliged to effectively apply the consumer acquis, Member States with a lower standard of consumer protection in their legislation would have an unfair competitive advantage. Unfair competition is considered a threat to the establishment of the interaal market.5

Before continuing with the description of the unfair commercial practices rules, it is emphasised that the qualification `professional'6 in the Prospectus Directive and the FSA is not the same as in the DCC/Unfair Commercial Practices Directive. In this contribution, professionals mean `traders' in the definition of the Unfair Commercial Practices Directive.

The Unfair Commercial Practices Directive was implemented in Dutch law with the adoption of the Unfair Commercial Practices Act (Wet oneerlijke handelspraktijken). This act adds a lex specialis to the general tort liability provision in Section 3a of title 3 in book 6 of the DCC.7

A short description of the contents of this lex specialis with respect to unfair commercial practices will be given below.8 According to section 6:193b(1) DCC, a trader acts unlawfully to a consumer, if he commits an unfair commercial practice. A commercial practice is unfair if two conditions are fulfilled: (i) a trader acts contrary to the requirements of professional diligence, and (II) if the practice materially distorts or is likely to materially distort the capability of the average consumer to take an informed decision with respect to the transaction that causes or is likely to cause the average consumer to make a transactional decision that he would not have taken otherwise.9 A commercial practice is specifically unfair if the trader commits a commercial practice that is misleading or aggressive.10

A commercial practice is regarded by law as misleading if it contains false information.11 Furthermore `misleading omissions' qualify as misleading.12,13Sections 6:193g and 6:193i DCC contain an enumeration (the black list) of behaviour that, in all circumstances, qualifies as misleading or aggressive respectively. As a consequence, this behaviour also qualifies as unfair.

The following system can be distinguished. If the commercial practice belongs to one of the categories on the black list, its unfairness is a given. If it does not belong to one of these categories, then the question has to be answered whether sections 6:193e up to and including 193f DCC or section 6:193h DCC are applicable in the circumstances of the case, and whether the commercial practice, on the basis of these articles, qualifies as misleading or aggressive. If the aforementioned articles are applicable, but the court establishes that the commercial practice is not misleading and/or aggressive in the sense of these articles, then it is also established as fact that the commercial practice is not unfair. In that case, application of the general provision of section 6:193b DCC is excluded. If the aforementioned sections are not applicable, the unfairness can be established on the basis of the general norm of section 6:193b DCC: violation of professional diligence or influence on the economie behaviour of the average consumer.

The consumer, allegedly the victim of an unfair commercial practice, can make a motivated claim for compensation of his losses. If the consumer can demonstrate in court that the trader performed an unfair commercial practice against him, then the trader's commission of a tort is established. In order to get compensation, section 6:193j(2) DCC requires the fulfilment of the other elements establishing liability in tort.

The consumer has to demonstrate that he suffered a loss and that this loss was caused by the tort committed. Furthermore, it has to be established that the trader is accountable for the tort committed by law or pursuant to generally accepted principles. The consumer is relieved by the reversal of proof laid down in section 6:193j(2) DCC: if the court establishes that the trader committed a tort, then the trader is liable for all losses caused by this conduct, unless he proves that these losses are not due to his fault, or due to a cause for which he is not accountable by law or pursuant to generally accepted principles.

Section 6:163 DCC states that there is no obligation to repair damage if the standard breached does not serve to protect against damage such as that suffered by the person suffering the loss. If the action is instituted by a consumer to whom the alleged unfair commercial practice was directed, this requirement is not an obstacle. The European legislator made clear that the Unfair Commercial Practices Directive directly seeks to protect the economie interests of the consumer against unfair business-to-consumer commercial practices.14 However, collective action claims instituted by a consumer (organisation) to which the alleged unfair commercial practice was not directed, are not allowable.15