Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b)

This judgment deals with the non-compliance with commitments stipulated in a code of conduct by which the defendant had declared to be bound and which commitments are firm and capable of being verified.

By demanding an advance equal to the full price of a product, while the general terms and conditions of the code of conduct by which the trader is bound foresee a maximum advance of 15% of the price of the product, the trader breaches the code of conduct and the general terms it set forth.

Such non-compliance with the code of conduct is a misleading commercial practice according to article 193c, paragraph 2, b., 2° of the Dutch Civil Code.

In this case the defendant, a kitchen manufacturer, was subject to the rules as set forth in a code of conduct, the so-called "CBW-code of conduct". As a result, the obligation was imposed upon the defendant to use towards its own customers the general terms and conditions as set forth in this code of conduct.

However, the defendant did not comply with its obligations under the code of conduct and the general terms this code sets forth. Accordingly, defendant demanded its customers to pay the full price before delivery of the kitchen although the general terms and conditions of the code of conduct state that a maximum advance of 15% of the full price applies.

It was held that the defendant acted unlawfully by its non-compliance with the commitments contained in the CBW-code of conduct. By indicating to be bound by the general terms and conditions as set forth in the code of conduct on the one hand, while using differing general terms and conditions on the other hand, the defendant has violated the trust of the consumer.

Defendant was ordered to pay a fine of 110.000 EUR .

In this respect, the plaintiff considered relevant that the general terms and conditions as stipulated in the code of conduct had been set forth in consultation with the Consumer's Association.

Does the defendant violate article 193c, paragraph 2, b., 2° of the Dutch Civil Code which implements article 6, paragraph 2, (b) of the UCP Directive and which states that a commercial practice is regarded as misleading if it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound and where the commitment is firm and capable of being verified and the trader indicates in a commercial practice that he is bound by the code?

URL: http://www.consumentenautoriteit.nl/pv_obj_cache/pv_obj_id_12459C31ADBD1FB460162E991F05854BE3300500/filename/Sanctiebesluit%20Keukenkampioen.pdf

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The defendant was ordered to pay a fine of 110.000 EUR.