Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4. Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

Someone who has not physically committed violations of UCP-rules itself is however liable for such acts if he can be considered as "author in an organization context" (functionele dader) and has the ultimate responsibility.

The plaintiff organized sale demonstrations during which products were sold to consumers. The plaintiff subcontracted the sales activities to insources (sellers). The Dutch Consumer Authority (the defendant) became aware of complaints about these sale demonstrations and decided to conduct an inquiry into plaintiff's compliance with rules regarding unfair commercial practices. It turned out that:

1) plaintiff provided consumers with misleading or incorrect information regarding the main characteristics of the product, such as availability, which caused or could cause consumers to take a transactional decision that they would not have taken otherwise;

2) by way of use of undue influence the average consumer’s freedom of choice or conduct with regard to the product was likely to be impaired;

3) in the invitation to purchase significant information regarding the price of the product (which concerns information that the average consumer needs to take an informed transactional decision) was omitted.

The defendant imposed a fine on the plaintiff. The plaintiff started legal proceedings arguing that it could not be considered as an "offender" of the aforementioned rules, since it was not substantively involved in the violations. The plaintiff's role was limited to recruiting sellers for the sale demonstrations. The violations were factually committed by the sellers. Therefore, according to the plaintiff, the defendant was not entitled to impose a fine for committing unfair commercial practices.

 

According to the court, considering the role of the plaintiff in the violations of the rules regarding unfair commercial practices (i.e. the plaintiff carried the ultimate responsibility in respect of the recruited sellers), the plaintiff was considered to be liable for the acts of the sellers on the basis of the author in an organization context-concept (functioneel daderschap).

The physical acts lied within the sphere of power of the plaintiff and the plaintiff accepted the violations committed.

 

Could someone be regarded as offender of the UCP-rules in case the violations have not been committed by himself but by people for whom he is ultimately responsible?

URL: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2013:CA2590

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The plaintiff's request was denied.