Unfair Commercial Practices Directive, Annex I

The consumer has an obligation to prove the existence of an unfair commercial practice, even though this practice is mentioned in the list of practices which are considered unfair per se (annex 1 Directive 2005/29).

Plaintiff bought a new sofa from the defendant. According to the plaintiff, the first defendant had lured the plaintiff into the defendant's shop claiming the plaintiff was awarded with a prize, whereas in reality (according to the plaintiff) such was not the case. The plaintiff later wanted to rescind the purchase contract on the basis of the fact that the sale was concluded following an unfair commercial practice. The defendant denied this allegation.

Does the consumer have an obligation to prove the existence of an unfair commercial practice, even though this practice is mentioned in the list of practices which are considered unfair per se (annex 1 Directive 2005/29)?

According to the court, the consumer has the obligation to prove that the sale was concluded as a result of a misleading commercial practice, which in the court's opinion the consumer did not. Whether the unfair commercial practice invoked by the consumer is a blacklisted practice, does not matter in the court's opinion.

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The court denied the plaintiff's claim.