European UnionUnfair Commercial Practices Directive
Officially Unfair Commercial Practices Directive, Persistent and Unwanted Solicitations
Also known as UCPD.
Directive 2005/29/EC, Annex I, point 26 and Art. 5(5)
In force since .
A commercial messages rule binding public and private bodies.
- Private right of action
- Yes
- Obligation class
- Prohibition
As of .
What it requires
- This Directive is addressed to the Member States (Article 21), which had to adopt and publish the measures necessary to comply with it by and apply them by (Article 19), so a trader meets this rule through each Member State's transposing law.
- It reaches you if you are a trader, meaning a natural or legal person acting for purposes relating to your trade, business, craft or profession, or anyone acting in the name of or on behalf of a trader (Article 2, point (b)), in a commercial practice directed at consumers (Article 3(1)): do not make persistent and unwanted solicitations by telephone, fax, e-mail or other remote media, except in circumstances and to the extent justified under national law to enforce a contractual obligation; the practice is in all circumstances regarded as unfair (Annex I, point 26, and Article 5(5)).
Who enforces it
Enforcement body
Each Member State's courts or administrative authorities, before which persons or organizations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may take action (Article 11(1)).
What this law does
Annex I, point 26, lists making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media, except in circumstances and to the extent justified under national law to enforce a contractual obligation. Article 5(5) provides that Annex I contains the list of commercial practices which shall in all circumstances be regarded as unfair, and that the same single list applies in all Member States.
Point 26 states that it is without prejudice to Article 10 of Directive 97/7/EC and to Directives 95/46/EC and 2002/58/EC. Article 3(1) applies the Directive to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product.
Article 2, point (b), defines a trader as any natural or legal person acting for purposes relating to a trade, business, craft or profession in commercial practices covered by the Directive, and anyone acting in the name of or on behalf of a trader. Article 3(4) provides that, in the case of conflict between the Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter prevail and apply to those specific aspects.
Article 13(1), as replaced by Directive (EU) 2019/2161, requires Member States to lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to the Directive, and the penalties must be effective, proportionate and dissuasive.
Article 13(3), as replaced by Directive (EU) 2019/2161, requires Member States to ensure that penalties imposed in accordance with Article 21 of Regulation (EU) 2017/2394 include the possibility of fines whose maximum amount is at least 4 % of the trader's annual turnover in the Member State or Member States concerned.
Article 11a(1), inserted by Directive (EU) 2019/2161, provides that consumers harmed by unfair commercial practices have access to proportionate and effective remedies, including compensation for damage suffered by the consumer and, where relevant, a price reduction or the termination of the contract.
When LexLint raises it
When your app profile says your app sends automated outreach.