Unfair commercial practices in a non-appearance case

Since June 2008, the Unfair Commercial Practices Directive (UCP Directive) has been implemented in the Dutch Civil Code. The UCP Directive covers all transactions by companies using an unfair commercial practice.

The directive determines when a commercial practice is regarded as unfair, and distinguishes misleading commercial practices from aggressive commercial practices. A Black List enumerates a list of commercial practices that are unfair in any case.

A commercial practice is regarded to be unfair if it can influence the decision of a consumer to buy (or not) a product or service, if it limits the consumer’s freedom of choice or contractual rights. The scope of the directive is limited to transactions between a company and consumers (B2C), and not between companies (B2B).

The directive aims to protect consumers across the European Union. Since the directive is aimed at consumers, the new and implemented articles in the Dutch Civil Code can only be invoked by a consumer.

Next to consumers, it is possible for foundations and other organisations that aim to protect consumers, such as the Dutch Consumers Association, to invoke these articles, since a consumer is not likely to act on its own against a company that has committed an unfair commercial practice.

A consequence of this narrow scope is that businesses that notice that their competitors act unfairly against consumers, though not necessarily against the company itself, cannot invoke these specified articles.

Those parties have to rely on the articles in the Dutch Civil Code regarding misleading and comparative advertisements. However, actions of consumers or the Dutch Consumers Association based on the UCP articles are rare. Therefore, in practice, most companies hardly notice the influence of the new articles. In that respect, the UCP Directive barely seems to influence most attorneys’ normal practices.

Nevertheless, some companies have tried to base their claims on the UCP articles. Van Wijk & Broersma Pompen trades industrial pumps and is the exclusive distributor and importer of several pump marks in the Netherlands. Van Wijke discovered that the defendant had launched the website www.pompengids.net (pumpguide).

On this website, companies that run a pump business can register what type of brand they trade and/ or the brand under which they offer services such as maintenance and reparations. Van Wijk noticed that when it searched for the brands it exclusively distributes, not only its company name appeared, but also 11 other distributors.

Van Wijk started interlocutory proceedings claiming that the website www.pompengids.net gave the misleading impression that these 11 distributors are official sales or service channels of Van Wijk. Further, it alleged that the defendant gave the companies the opportunity to provide misleading information.

Van Wijk claimed that the misleading names needed to be removed from the website and his company be mentioned as the exclusive distributor. Van Wijk based its claims on the UCP articles and misleading advertisement articles.

The defendant did not appear in the first instance. In non-appearance cases, the court has to reject a claim when it finds that the claim appears to be unjustified or unfounded. On the whole, claims in cases when the defendant does not appear are sustained. In this case, the judge rejected the claims. Nevertheless, Van Wijk appealed.

On appeal, the defendant did not appear either. In its ruling of May 3, 2011, the court of appeal at The Hague also dismissed the claims. Firstly, the court held that the grounds cannot be based on the UCP articles since it concerns consumer affairs. The misleading advertisement articles were also not applicable since Van Wijk didn’t argue convincingly that the information on the website was misleading.

The only ground left was the act of tort. This ground was also dismissed; the website did not contain misleading information, but only announcements from third parties. It follows from this decision that companies must be careful to select the ground of their claims correctly. Mistakenly choosing grounds that are available for consumers alone leads to a rejection straightaway, even if the defendant is not there to notify the court.