Doktrin

Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7

The article analyses a Swedish case from 2019 (PMT 2054-18) in which the Svea Court of Appeal, Patent and Market Court of Appeal, decided to change the way it conducted its assessment of the transactional decision test. As the author clarifies, up until this case national courts were following the scheme the legislator had defined in the preparatory work of the Marketing Act: a court would first assess whether a commercial practice is aggressive, misleading or against marketing practices, and if it is then the second step is to examine whether it may lead consumers to take a transactional decision they would otherwise not have taken. In PMT 2054-18, however, the Court of Appeal decided that if one wants to make an interpretation of paragraphs 8 and 9 of the Marketing Act that follows the rationale of Article 7 of the Directive 2005/29/EC, the transactional decision test is to be regarded as part of the assessment of the misleading nature of a commercial practice, meaning that for a practice to be misleading it also has to lead consumers take a transactional decision they would otherwise not have taken. The author criticises this change which he finds rather unpersuasive and problematic since such a conclusion not only cannot be drawn by the Directive itself but it may also create new problems related, for example, with the status of a number of provisions of the Marketing Act that become non-compatible in case of such interpretation with the provisions of the Directive.