Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 5 Misleading and Comparative Advertising Directive, Article 8 Misleading and Comparative Advertising Directive, Article 8 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7

The misleading practices prohibited by Article VI.106.2 CEL must not be interpreted restrictively. The legislator’s reference in the explanatory memorandum to B2B practices in relation to advertising guides serves only as an illustration of the misleading omissions that the provision seeks to prohibit. Hence Article VI.106.2 CEL has a broad application and encompasses all forms of B2B misleading omissions about the commercial nature of a transaction and/or the consequences of contracting.

The case dealt with unlawful commercial practices of representatives of competing companies who applied tricks (‘ruses and artifices’, such as about the capacity in which they act) to induce undertakings into contracting.

The question arose as to whether Article VI. 106.2 CEL included other forms of misleading omissions than those referred to in the explanatory memorandum of that provision.

The Supreme Court decided that the provision is not solely focused on persons who seek to entrap undertakings into enlisting in a costly (Internet) advertising guide without prior notice of the commercial purpose of the transaction, as specified in the explanatory memorandum. The Court held that the misleading practices prohibited by that provision should not be interpreted restrictively. The reference by the legislator to B2B practices in relation to advertising guides serves only as an illustration of the misleading omissions that the provision seeks to prohibit. The said provision also prohibits in B2C relationships all forms of advertising wherein essential information about the consequences of contracting and/or the commercial purpose of the transaction are omitted.

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The Supreme Court reforms the judgement of the Court of Appeal in Brussels and concludes that the misleading practices prohibited by Article VI.106.2 CEL must not be interpreted restrictively and that the legislator’s reference to B2B practices in relation to advertising guides serves only as an illustration of the misleading omissions that the provision seeks to prohibit.