Private Law Theory

INTRODUCTION
The The Unfair Commercial Practices Directive (UCPD), a full-harmonisation directive, is one of the most important sector-wide instruments of EU consumer-protection law. It aims at protecting the freedom of consumers to form a transactional decision. The Directive provides for a general definition of unfairness (Art 5) and special rules on the two most frequent types of unfair practices, namely misleading practices (Arts 6 and 7)and aggressive practices (Arts 8 and 9). It also includes a list of per se misleading and aggressive practices. The main characteristic of an unfair commercial practice is that it creates a risk of distortion of the transactional decision of the ‘average consumer’, ie the consumer who is reasonably well-in-formed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice. In the cases of per se unfair practices such risk is irrebuttably presumed. If the practice is addressed to a specific consumer group, including vulnerable consumers, then the unfairness is evaluated in respect of the average member of that group …

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Michael Chatzipanagiotis, Trying to Fit a Square Peg into a Round Hole: Individual Remedies for Unfair Commercial Practices Under Art 11a UCPD, Journal of European Consumer and Market Law, volume 13, issue 3, pp 113-125 (2024).