Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

Small and medium sized enterprises can seek legal protection under the UCP-rules in case they can be considered equivalent to a consumer on the basis of certain factors.

The defendants approached the plaintiffs about advertising opportunities on their websites. An agreement regarding advertisements was entered into between parties. After a while, the plaintiffs wanted to unsubscribe from the agreed advertising services since they were shocked by the amounts charged. This gave rise to a dispute between parties.

According to the plaintiffs, the marketing method used by the defendants was misleading for the following reasons: 1) the defendants had suggested that there was already an existing contractual relationship between the parties. Also, they suggested that the sums due related to a certain period, whereas in reality it related to a much shorter period of time; 2) amounts were mentioned, without knowing to what period these amounts related to; 3) a contract period was mentioned, but in reality this period turned out to be much longer than expected; 4) the defendants had suggested that signing certain documents was only intended for verification of data, while in reality an agreement was concluded; 5) the reflection period of 8 days was not stated in the offer.

However, in general the UCP-rules (implemented in the Dutch Civil Code) do not have a direct effect on of companies (only effect on consumers). In this case, the plaintiffs were small and medium-sized enterprises (SMEs). The question was whether the plaintiffs could seek legal protection under the UCP-rules (and thus: whether there could be a consequential effect attached to it for the benefit of companies).  

The court ruled that, at the time of the conclusion of the agreement between the plaintiffs and the defendants in relation to placing an advertisement on its website, the plaintiffs were in a similar position as a consumer. This was based on the following:

- the plaintiffs were small organizations with a low budget, while the defendants, on the contrary, were commercial companies concluding commercial contracts on a daily basis; - in the present case, the plaintiffs concluded contracts containing clauses that went beyond the scope of their normal businesses; - the defendants had taken the initiative to contact the plaintiffs by phone to offer services; - a consumer could have entered into such agreements as well.

In the light of the above mentioned factors, the court ruled that the UCP-rules are applicable also to SMEs.

In short, the court ruled that there was a misrepresentation in respect of the nature of the product, the price and the nature, attributes and rights of the trader (defendants). This constituted an unfair commercial practice on the basis of which the agreements were nullified.  

Can small and medium sized enterprises seek legal protection under the UCP-rules, and if so, under what conditions? 

URL: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBNNE:2013:BZ1615&keyword=LJN+BZ1615

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The plaintiffs' request was granted.