On 15 October 2008 the Unfair Commercial Practices Act (Wet oneerlijke handelspraktijken) entered into force. The act prohibits unfair commercial practices and is enforced by the Dutch Consumer Authority and the Financial Markets Authority.
The act implements the European Directive concerning unfair business-to-consumer commercial practices from 2005.
The act intends to strengthen and clarify the rights of consumers and is relevant for all parties directly or indirectly offering products and services to consumers.
Ban on unfair commercial practices
The new act provides for a ban on unfair commercial practices. These fall apart into misleading and aggressive commercial practices. Besides a number of general rules against which testing must be performed from case to case, the act contains a black list of commercial practices that are regarded as unfair automatically.
As one of the consequences of the act, undertakings will have to pay particular attention to the way they communicate with (potential) customers and to provide them with correct and sufficient information. For example, the act provides inter alia that any right of withdrawal or cancellation (such as pursuant to the Dutch Distance Selling Act) must be mentioned in an “invitation to purchase”. Omission of such information will be regarded as a misleading commercial practice. Also, an omission to provide certain information or any misinformation of a consumer about his/her right to a guarantee may be regarded as misleading under particular circumstances.
If there is an unlawful commercial practice, the undertaking will be acting unlawfully towards a consumer. In some cases, a court may, furthermore, apply a reversal of the burden of proof. In such cases, the undertaking will be liable for the damage caused by the unfair commercial practice, unless it proves that the damage cannot be attributed to the undertaking, or that it is not accountable for the damage in any other way.
The Dutch Consumer Authority and the Financial Markets Authority will enforce the act. Upon violation, a maximum fine of €450,000 per violation may be imposed.
The rules from the act were already included in the Dutch Advertising Code and the Dutch Advertising Standards Committee has already applied these rules since 1 February of this year.