Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8 Unfair Commercial Practices Directive, Annex I, 26.

(1) Not notifying customers that they have the right of unchanged continuation of the continuing performance contract (when in fact they have not), does not constitute an unfair commercial practice.

(2) Repeatedly approaching customers by sending them letters and giving them calls, does not automatically constitute an aggressive commercial practice.  

The defendant is an independent insurance intermediary and a party to several continuing performance contracts (agreements to perform services) with its customers.

The defendant earned revenues from fees. For several reasons, the defendant decided to introduce a new system in which customers had to pay a fixed basic fee (contribution) on top of the fees paid for the defendant’s services. The defendant sent several letters to its customers with information about this new system. Customers were also informed that they could switch to another intermediary if they were not willing to pay the proposed contribution. Customers who did not respond were contacted by phone in order to ask if they agreed to the contribution.

The plaintiff, being the Dutch Consumer Association, argued that the defendant was not allowed to unilateral change existing agreements between the defendant and its customers and held that the manner in which customers were approached, constituted an aggressive commercial practice.

In the plaintiff’s opinion, the defendant made persistent and unwanted solicitations by mail and phone,in order to enforce a contractual obligation.  

The court held that in general, under Dutch law a party is entitled to terminate a continuing performance contract. This implies that the defendant is not required to continue the agreement in an unchanged form. The defendant is not entitled to unilaterally amend the agreement, but it may propose an amendment to its customers. In case the customer rejects the amendment, the agreement may be terminated. Of course, customers cannot be forced to accept the amendments; however they may have to accept that the agreement will then be terminated. So, the court, held, not notifying one's customers that they have the right of unchanged continuation of the agreement of services, does not constitute an unfair commercial practice since the customers did not have this right in this particular case (agreement may be terminated at all time).

Secondly, the court stated that not every type of repeatedly approaching customers can be qualified as an aggressive commercial practice. In the case at hand, the defendant only sent a few letters to its customers and called once or twice after. This cannot be qualified as “persistent and unwanted solicitations”.  

(1) Does not notifying customers that they have the right of unchanged continuation of the continuing performance contract (when in fact they have not), constitute an unfair commercial practice?

(2) Does repeatedly approaching customers by sending them letters and giving them calls, automatically constitute an aggressive commercial practice?  

URL: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBUTR:2012:BW5843&keyword=ECLI%3aNL%3aRBUTR%3a2012%3aBW5843

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The plaintiff’s request was denied.