Misleading actions vs. misleading omissions under Unfair Commercial Practices Directive. National approach in context

Abstract

Unfair Commercial Practices Directive remains one of the most ambitious acts of secondary legislation adopted in the field of consumer protection over the past decade. This legal instrument seeks to establish a common European understanding of “unfairness” in business-to-consumer legal relations. Hereby Directive introduced a comprehensive regulatory regime applied to all types of commercial activities that can influence the economic behavior of consumers, covering any business-to-consumer commercial practice before, during and after a transaction, thus including marketing, negotiation, sales practices and after-sales conduct. Unfair Commercial Practices Directive into Lithuanian legal system was transposed by adopting a completely new legal act – Law on Prohibition of Unfair Business-to-Consumer Commercial Practices of the Republic of Lithuania. The implementation of the Unfair Commercial Practices Directive in Lithuania led to a split-up between misleading business-to-consumer commercial practices and misleading business-to-business advertising regulation regimes. Implementing act among other rules introduced into the national legal system provisions on the prohibition of misleading commercial practices, ensuring that consumers are not misled, thus enabling them to make informed and reasonable choices. The purpose of this article is to examine the norms of national act, implementing the prohibition of misleading commercial practices into the national legal system in the context of implementing provisions of the other Member States and to reveal core national regulation and application problems. Also, having in mind that in the text of the Directive a distinction between misleading actions and misleading omissions is made, it is analyzed whether the clear line between the application of these rules is made in legal practice. In conclusion authors formulate key recommendations for consumer protection institutions and courts, applying the rules on misleading commercial practices.