Consumer Protection (Unfair Trading) Act 2008

Link to law: http://www.gibraltarlaws.gov.gi/articles/2008-18o.pdf
Published: 2008-11-13

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I ASSENT Consumer Protection (Unfair Trading)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2008-18


CONSUMER PROTECTION (UNFAIR TRADING)
ACT 2008


Principal Act

Act. No. 2008-18 Commencement 13.11.2008
Assent 11.11.2008




Amending
enactments
Relevant current
provisions
Commencement
date

LN. 2013/176 ss. 2, 14A & Sch. 13.6.2014


English sources:
None cited

EU Legislation/International Agreements involved:
Directive 85/577/EEC
Directive 90/314/EEC
Directive 92/49/EEC
Directive 93/13/EEC
Directive 94/47/EC
Directive 97/7/EC
Directive 98/6/EC
Directive 98/7/EC
Directive 1999/44/EC
Directive 2001/107/EC
Directive 2002/65/EC
Directive 2002/83/EC
Directive 2002/92/EC
Directive 2003/71/EC
Directive 2004/39/EC
Directive 2005/29/EC
Directive 2011/83/EU
Consumer Protection (Unfair Trading)
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ARRANGMENT OF SECTIONS

Section
1. Title and commencement.

PART I
INTERPRETATION

2. Interpretation.
PART II
SCOPE OF APPLICATION

3. Application of the Act.
4. Ordinary hyperbole.

PART III
UNFAIR COMMERCIAL PRACTICES

5. Prohibition of unfair commercial practices.

PART IV
MISLEADING COMMERCIAL PRACTICES

6. Misleading actions.
7. Misleading omissions.

PART V
AGGRESSIVE COMMERCIAL PRACTICES

8. Aggressive commercial practices.
9. Use of harassment, coercion and undue influence.

PART VI
CODES OF CONDUCT

10. Codes of conduct.

PART VII
ENFORCEMENT

11. Enforcement by way of injunction.
12. Offences.
13. Powers of investigation.
14. Burden of proof.
14A. Inertia selling.

Consumer Protection (Unfair Trading)
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PART IX
MISCELLANEOUS

15. Amendment to Misleading and Comparative Advertising Act.
16. Amendment to the Exhibition of Prices Order.

SCHEDULE 1
COMMERCIAL PRACTICES WHICH ARE IN ALL
CIRCUMSTANCES CONSIDERED UNFAIR

SCHEDULE 2
COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR
ADVERTISING AND COMMERCIAL PRACTICES

Consumer Protection (Unfair Trading)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2008-18
Consumer Protection (Unfair Trading)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2008-18
AN ACT TO IMPLEMENT THE PROVISIONS OF DIRECTIVE
2005/29/EC OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL OF 11 MAY 2005 CONCERNING UNFAIR BUSINESS-TO-
CONSUMER COMMERCIAL PRACTICES.

Title and commencement.

1. This Act may be cited as the Consumer Protection (Unfair Trading) Act
2008 and comes into operation on the day of publication.


PART I
INTERPRETATION

Interpretation.

2. For the purposes of this Act

“business-to-consumer commercial practices” (hereinafter also referred
to as commercial practices) means any act, omission, course of
conduct or representation, commercial communication including
advertising and marketing, by a trader, directly connected with the
promotion, sale or supply of a service to consumers;

“code of conduct” means an agreement or set of rules not imposed by
law, regulation or administrative provision of Gibraltar or of a
Member State which defines the behaviour of traders who
undertake to be bound by the code in relation to one or more
particular commercial practices or business sectors;

“code owner” means any entity, including a trader or group of traders,
which is responsible for the formulation and revision of a code of
conduct and/or for monitoring compliance with the code by those
who have undertaken to be bound by it;

“consumer” means any natural person who, in commercial practices
covered by this Act, is acting for purposes which are outside his
trade, business, craft or profession;

“Consumer Officer” means the person appointed under section 11 of this
Act;

“the Directive” means Directive 2005/29 of the European Parliament and
of the Council of 11 May 2005 concerning unfair business-to-
consumer commercial practices;

Consumer Protection (Unfair Trading)
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2008-18
“goods” means any tangible moveable items, with the exception of items
sold by way of execution or otherwise by authority of law, and
water, gas and electricity shall be considered as goods within the
meaning of this Directive where they are put up for sale in a limited
volume or a set quantity;

“invitation to purchase” means a commercial communication which
indicates characteristics of the service and the price in a way
appropriate to the means of the commercial communication used
and thereby enables the consumer to make a purchase;

“to materially distort the economic behaviour of consumers” means using
a commercial practice to appreciably impair the consumer's ability
to make an informed decision, thereby causing the consumer to
take a transactional decision that he would not have taken
otherwise;

“the Minister” means the minister with responsibility for consumer
affairs;

“professional diligence” means the standard of special skill and care
which a trader may reasonably be expected to exercise towards
consumers, commensurate with honest market practice and/or the
general principle of good faith in the trader's field of activity;

“qualified entity” means any body or organisation entitled to seek an
injunction in a Member State for the purposes of consumer
protection under Directive 98/27/EC of the European Parliament
and of the Council of 19 May 1998 on injunctions for the protection
of consumers' interests;

“regulated profession” means a professional activity or a group of
professional activities, access to which or the pursuit of which, or
one of the modes of pursuing which, is conditional, directly or
indirectly, upon possession of specific professional qualifications,
pursuant to laws, regulations or administrative provisions;

“a service” includes, but is not limited to, a service with respect to
immovable property, rights and obligations;

“trader” means any natural or legal person who, in commercial practices
covered by this Act, is acting for purposes relating to his trade,
business, craft or profession and anyone acting in the name of or on
behalf of a trader;

“transactional decision” means any decision taken by a consumer
concerning whether, how and on what terms to purchase, make
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payment in whole or in part for, retain or dispose of a service or to
exercise a contractual right in relation to the service, whether the
consumer decides to act or to refrain from acting;

“undue influence” means exploiting a position of power in relation to the
consumer so as to apply pressure, even without using or threatening
to use physical force, in a way which significantly limits the
consumer's ability to make an informed decision.


PART II
SCOPE OF APPLICATION

Application of the Act.

3.(1) This Act shall apply to unfair business-to-consumer commercial
practices, as laid down in section 5, before, during and after a commercial
transaction in relation to a service.

(2) This Act is without prejudice to contract law and, in particular, to the
rules on the validity, formation or effect of a contract.

(3) This Act is without prejudice to any rules of law relating to health and
safety.

(4) In the case of conflict between the provisions of this Act and any rules
of law applicable in Gibraltar regulating specific aspects of unfair
commercial practices, the latter shall prevail and apply to those specific
aspects.

(5) This Act is without prejudice to any conditions of establishment or of
authorisation regimes, or to codes of conduct or other specific rules
governing regulated professions in order to uphold high standards of
integrity on the part of the professional.

(6) In relation to “financial services”, as defined in Directive 2002/65/EC
of the European Parliament and of the Council of 23 September 2002
concerning the distance marketing of consumer financial services and
amending Council Directive 90/619/EEC and Directives 97/7/EC and
98/27/EC, and immovable property, this Act is without prejudice to any
more restrictive laws protecting consumers in those sectors.

(7) This Act shall not apply to the laws, regulations and administrative
provisions relating to the certification and indication of the standard of
fineness of articles of precious metal.

Ordinary hyperbole.
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4. This Act is without prejudice to the common and legitimate advertising
practice of making exaggerated statements or statements which are not
meant to be taken literally.


PART III
UNFAIR COMMERCIAL PRACTICES

Prohibition of unfair commercial practices.

5.(1) Unfair commercial practices shall be prohibited.

(2) A commercial practice shall be unfair if

(a) it is contrary to the requirements of professional diligence; and

(b) it materially distorts or is likely to materially distort the
economic behaviour with regard to the service of the average
consumer whom it reaches or to whom it is addressed, or of the
average member of the group when a commercial practice is
directed to a particular group of consumers.

(3) Commercial practices which are likely to materially distort the
economic behaviour only of a clearly identifiable group of consumers who
are particularly vulnerable to the practice or the underlying service because
of their mental or physical infirmity, age or credulity in a way which the
trader could reasonably be expected to foresee, shall be assessed from the
perspective of the average member of that group.

(4) In particular, commercial practices shall be unfair if they

(a) are misleading as set out in section 6 and 7; or

(b) are aggressive as set out in sections 8 and 9.

(5) Schedule 1 to this Act contains the list of those commercial practices
which shall in all circumstances be regarded as unfair.


PART IV
MISLEADING COMMERCIAL PRACTICES

Misleading actions.

6.(1) A commercial practice shall be regarded as misleading if it contains
false information and is therefore untruthful or in any way, including overall
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presentation, deceives or is likely to deceive the average consumer, even if
the information is factually correct, in relation to one or more of the
following elements, and in either case causes or is likely to cause the
average consumer to take a transactional decision that he would not have
taken otherwise

(a) the existence or nature of the service;

(b) the main characteristics of the service, such as its availability,
benefits, risks, execution, after-sale customer service and
complaint handling, method and date of provision, delivery,
fitness for purpose, usage, quantity, specification, geographical
or commercial origin or the results to be expected from its use;

(c) the extent of the trader's commitments, the motives for the
commercial practice and the nature of the sales process, any
statement or symbol in relation to direct or indirect sponsorship
or approval of the trader or the service;

(d) the price or the manner in which the price is calculated, or the
existence of a specific price advantage;

(e) the nature, attributes and rights of the trader or his agent, such
as his identity and assets, his qualifications, status, approval,
affiliation or connection and ownership of industrial,
commercial or intellectual property rights or his awards and
distinctions;

(f) the risks the consumer may face.

(2) A commercial practice shall also be regarded as misleading if, in its
factual context, taking account of all its features and circumstances, 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

(a) any marketing of a service, including comparative advertising,
which creates confusion with any services, trade marks, trade
names or other distinguishing marks of a competitor; or

(b) non-compliance by the trader with commitments contained in
codes of conduct by which the trader has undertaken to be
bound, where

(i) the commitment is not aspirational but is firm and is
capable of being verified; and

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(ii) the trader indicates in a commercial practice that he is
bound by the code.

Misleading omissions.

7.(1) A commercial practice shall be regarded as misleading if, in its factual
context, taking account of all its features and circumstances and the
limitations of the communication medium, it omits material information that
the average consumer needs, according to the context, to take an informed
transactional decision and thereby causes or is likely to cause the average
consumer to take a transactional decision that he would not have taken
otherwise.

(2) It shall also be regarded as a misleading omission when, taking account
of the matters described in subsection (1), a trader hides or provides in an
unclear, unintelligible, ambiguous or untimely manner such material
information as referred to in that subsection or fails to identify the
commercial intent of the commercial practice if not already apparent from
the context, and where, in either case, this causes or is likely to cause the
average consumer to take a transactional decision that he would not have
taken otherwise.

(3) Where the medium used to communicate the commercial practice
imposes limitations of space or time, these limitations and any measures
taken by the trader to make the information available to consumers by other
means shall be taken into account in deciding whether information has been
omitted.

(4) In the case of an invitation to purchase, the following information shall
be regarded as material, if not already apparent from the context

(a) the main characteristics of the service, to an extent appropriate
to the medium and the service;

(b) the geographical address and the identity of the trader, such as
his trading name and, where applicable, the geographical
address and the identity of the trader on whose behalf he is
acting;

(c) the price inclusive of taxes, or where the nature of the service
means that the price cannot reasonably be calculated in
advance, the manner in which the price is calculated, as well
as, where appropriate, all additional charges or, where these
charges cannot reasonably be calculated in advance, the fact
that additional charges may be payable;

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(d) the arrangements for payment, delivery, performance and the
complaint handling policy, if they depart from the requirements
of professional diligence; and

(e) for services and transactions involving a right of withdrawal or
cancellation, the existence of such a right.

(5) Information requirements established by Community law measures in
relation to commercial communication including advertising or marketing
shall be regarded as material for the purposes of this Act, and liability under
this Act shall be concurrent with any liability under such Community law
measures as are incorporated into the law of Gibraltar.

(6) Schedule 2 to this Act sets out a non-exhaustive list of Community law
measures relevant to subsection (5).


PART V
AGGRESSIVE COMMERCIAL PRACTICES

Aggressive commercial practices.

8. A commercial practice shall be regarded as aggressive if, in its factual
context, taking account of all its features and circumstances, by harassment,
coercion, including the use of physical force, or undue influence, it
significantly impairs or is likely to significantly impair the average
consumer's freedom of choice or conduct with regard to the service and
thereby causes him or is likely to cause him to take a transactional decision
that he would not have taken otherwise.

Use of harassment, coercion and undue influence.

9. In determining whether a commercial practice uses harassment, coercion,
including the use of physical force, or undue influence, account shall be
taken of

(a) its timing, location, nature or persistence;

(b) the use of threatening or abusive language or behaviour;

(c) the exploitation by the trader of any specific misfortune or
circumstance of such gravity as to impair the consumer’s
judgement, of which the trader is aware, to influence the
consumer’s decision with regard to the service;

(d) any onerous or disproportionate non-contractual barriers
imposed by the trader where a consumer wishes to exercise
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rights under the contract, including rights to terminate a
contract or to switch to another service or another trader; and

(e) any threat to take any action that cannot legally be taken.


PART VI
CODES OF CONDUCT

Codes of conduct.

10.(1) The Consumer Officer may encourage control of unfair commercial
practices by code owners and by recourse to such control bodies.

(2) Recourse to such control bodies shall never be deemed the equivalent
of foregoing a means of judicial or administrative recourse as provided for
in Part VII of this Act.


PART VII
ENFORCEMENT

Enforcement by way of injunction.

11.(1) The Minister may appoint by notice in the Gazette a Consumer
Officer to administer the provisions of this Act.

(2) It shall be the duty of the Consumer Officer to consider any complaint
made to him that a commercial practice is contrary to the provisions of this
Act, unless–

(a) the complaint appears to the Consumer Officer to be frivolous
or vexatious; or

(b) a person appointed under subsection (3) has notified the
Consumer Officer that he agrees to consider the complaint.

(3) Without prejudice to subsection (1), the Minister shall designate by
notice in the Gazette, such persons or groups of persons who may apply to
him for designation and who, in the Minister’s opinion, have as their sole or
principal aim the promotion of interests of consumers.

(4) If a person designated under subsection (3) notifies the Consumer
Officer that he agrees to consider a complaint that a commercial practice is
contrary to the provisions of this Act, he shall be under a duty to consider
that complaint.

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(5) The following persons or bodies may apply for an injunction against
any person appearing to them to be using, or recommending use of, practices
contrary to the provisions of this Act

(a) the Consumer Officer;

(b) subject to subsection (6), a person designated under subsection
(3); or

(c) a qualified entity from outside of Gibraltar.

(6) A person designated under subsection (3) may take action only where–

(a) he has notified the Consumer Officer of his intention to apply
at least fourteen days before the date on which the application
is made, beginning with the date on which the notification was
given; or

(b) the Consumer Officer consents to the application being made
within a shorter period.

(7) The court may, on an application for an injunction, grant an injunction
or such other order on such terms as it thinks fit: without prejudice to the
generality of the foregoing, the court may direct the person responsible for
any commercial practice found to be contrary to the provisions of this Act–

(a) to publish all or any part of the decision of the court;

(b) to publish a corrective statement,

in such form and manner, and to such persons, as the court, in its discretion,
may see fit.

(8) The Consumer Officer or, subject to subsection (6), a person
designated under subsection (3)

(a) may, if he considers it appropriate to do so, have regard to any
undertakings given to him or to the Minister by or on behalf of
any person as to the continuation of such a commercial
practice;

(b) shall give reasons for his decision to bring or not to bring
proceedings, as the case may be, for an injunction in relation to
any complaint which this Act requires him to consider.

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(9) Notwithstanding a decision not to bring proceedings for an injunction
under subsection (8)(b), any person may bring such proceedings in his own
name.

(10) An injunction or other order may relate not only to a particular
commercial practice but to any similar practices having like effect, used,
recommended or intended to be used by any party to the proceedings.

(11) The Minister may arrange for the dissemination, in such form and
manner as he considers appropriate, of such information and advice
concerning the operation of this Act as may appear to him to be expedient to
give to the public and to all persons likely to be affected by this Act.

Offences.

12.(1) Where the Consumer Officer may bring an application under section
11(5) for an injunction against a person using, or recommending the use of,
commercial practices contrary to the provisions of the Act, the Consumer
Officer may further or alternatively apply to the court to impose a penalty.

(2) An application for a penalty made against a body corporate may also
include an application that a penalty be imposed on an officer of that body.

(3) The court shall only impose a penalty against an officer of a corporate
body, if the relevant practice was

(a) committed with the consent or connivance of an officer of the
body; or

(b) attributable to any neglect on his part.

(4) In subsection (2), the reference to an officer of a body corporate
includes a reference to

(a) a director, manager, secretary, or other similar officer; and

(b) a person purporting to act as a director, manager, secretary or
other similar officer.

(5) The court shall impose such penalty as it believes is fair, just and
reasonable taking into account the scale of the practice, its effect on
consumers, the degree to which the trader had profited from the practice,
and the degree of recklessness, intention or dishonesty, or the lack of the
same by the trader.

(6) The court may impose the following by way of penalties

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(a) a warning;

(b) a fine of up to ten per cent of the trader’s turnover in Gibraltar
or an estimate of the same;

(c) a fine of up to the statutory maximum for a summary offence as
against an officer of a body corporate; or

(d) the removal of, or limitations to, any licence, permission,
authorisation to trade in or from Gibraltar,

and the court may impose a combination of the above where appropriate.

(7) For the avoidance of doubt, the imposition of a penalty under this
section shall be without prejudice to any action taken to enforce stricter and
more restrictive regulations, or greater penalties, in respect of consumer
services supplied in respect of financial services and immovable property,
providing always that any duplication of penalties imposed under this Act
and any other provision of law shall be concurrent and not cumulative.

Powers of investigation.

13.(1) The Consumer Officer and any person employed to assist him shall
have the same powers of search, seizure and entry, questioning and the same
right to apply for warrants from any judicial authority, as a police officer has
in the course of investigating an offence triable on indictment.

(2) The use of all powers conferred by subsection (1) shall be subject to
the same legal restrictions, safeguards and codes of practices as shall from
time to time exist in respect of police investigations into offences triable on
indictment.

(3) The Consumer Officer, or any person employed to assist him, shall
only execute a search warrant where assisted by a police officer.

Burden of proof.

14. Insofar as the accuracy of factual claims in relation to a commercial
practice is in issue, the burden of proof shall be on the trader to prove, on
the balance of probabilities, that the claim was accurate.

Inertia selling.

14A.(1) This section applies where a trader engages in the unfair
commercial practice described in paragraph 29 of Schedule 1 (inertia
selling).

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(2) The consumer is exempted from any obligation to provide
consideration for the products supplied by the trader.

(3) The absence of a response from the consumer following the supply
does not constitute consent to the provision of consideration for, or the
return or safekeeping of, the products.

(4) In the case of an unsolicited supply of goods, the consumer may, as
between the consumer and the trader, use, deal with or dispose of the goods
as if they were an unconditional gift to the consumer.

PART IX
MISCELLANEOUS

Amendment to Misleading and Comparative Advertising Act.

15. Section 4(1)(a) of the Misleading and Comparative Advertising Act,
2001 shall be amended by adding after “this Act” the words “or the
Consumer Protection (Unfair Trading) Act 2008”.

Amendment to the Exhibition of Prices Order.

16. After paragraph 3 of the Exhibition of Prices Order there shall be
inserted

“Order without prejudice to other consumer protection laws.

4. This Order is without prejudice to the requirements of the
Consumer Protection (Unfair Trading) Act 2008, and in
particular the requirements of section 7 thereof.”.

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SCHEDULE 1

Section 5(5)

COMMERCIAL PRACTICES WHICH ARE IN ALL
CIRCUMSTANCES CONSIDERED UNFAIR

Misleading commercial practices.

1. Claiming to be a signatory to a code of conduct when the trader is not.

2. Displaying a trust mark, quality mark or equivalent without having
obtained the necessary authorisation.

3. Claiming that a code of conduct has an endorsement from a public or
other body which it does not have.

4. Claiming that a trader (including his commercial practices) or a service
has been approved, endorsed or authorised by a public or private body when
he/it has not or making such a claim without complying with the terms of
the approval, endorsement or authorisation.

5. Making an invitation to purchase services at a specified price without
disclosing the existence of any reasonable grounds the trader may have for
believing that he will not be able to offer for supply or to procure another
trader to supply, those services or equivalent services at that price for a
period that is, and in quantities that are, reasonable having regard to the
service, the scale of advertising of the service and the price offered (bait
advertising).

6. Making an invitation to purchase services at a specified price and then

(a) refusing to show the advertised service to consumers; or

(b) refusing to take orders for it or provide it within a reasonable
time; or

(c) demonstrating a defective sample of it,

with the intention of promoting a different service (bait and switch).

7. Falsely stating that a service will only be available for a very limited
time, or that it will only be available on particular terms for a very limited
time, in order to elicit an immediate decision and deprive consumers of
sufficient opportunity or time to make an informed choice.

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8. Undertaking to provide after-sales service to consumers with whom the
trader has communicated prior to a transaction in a language which is not an
official language of the Member State where the trader is located and then
making such service available only in another language without clearly
disclosing this to the consumer before the consumer is committed to the
transaction.

9. Stating or otherwise creating the impression that a service can legally be
provided when it cannot.

10. Presenting rights given to consumers in law as a distinctive feature of
the trader's offer.

11. Using editorial content in the media to promote a service where a trader
has paid for the promotion without making that clear in the content or by
images or sounds clearly identifiable by the consumer (advertorial). This is
without prejudice to Council Directive 89/552/EEC and such legislation as
from time to time implements that Directive, or any successor thereto, in
Gibraltar.

12. Making a materially inaccurate claim concerning the nature and extent
of the risk to the personal security of the consumer or his family if the
consumer does not purchase the service.

13. Promoting a service similar to a service provided by a particular
supplier in such a manner as deliberately to mislead the consumer into
believing that the service is made by that same supplier when it is not.

14. Establishing, operating or promoting a pyramid promotional scheme
where a consumer gives consideration for the opportunity to receive
compensation that is derived primarily from the introduction of other
consumers into the scheme rather than from the sale or consumption of
services.

15. Claiming that the trader is about to cease trading or move premises
when he is not.

16. Claiming that services are able to facilitate winning in games of chance.

17. Falsely claiming that a service is able to cure illnesses, dysfunction or
malformations.

18. Passing on materially inaccurate information on market conditions or on
the possibility of finding the service with the intention of inducing the
consumer to acquire the service at conditions less favourable than normal
market conditions.

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19. Claiming in a commercial practice to offer a competition or prize
promotion without awarding the prizes described or a reasonable equivalent.

20. Describing a service as “gratis”, “free”, “without charge” or similar if
the consumer has to pay anything other than the unavoidable cost of
responding to the commercial practice and collecting or paying for provision
of the service.

21. Including in marketing material an invoice or similar document seeking
payment which gives the consumer the impression that he has already
ordered the marketed service when he has not.

22. Falsely claiming or creating the impression that the trader is not acting
for purposes relating to his trade, business, craft or profession, or falsely
representing oneself as a consumer.

23. Creating the false impression that after-sales service in relation to a
service is available in a Member State other than the one from which the
service is provided.

Aggressive commercial practices.

24. Creating the impression that the consumer cannot leave the premises
until a contract is formed.

25. Conducting personal visits to the consumer's home ignoring the
consumer's request to leave or not to return except in circumstances and to
the extent justified, under national law, to enforce a contractual obligation.

26. Making persistent and unwanted solicitations by telephone, fax, e-mail
or other remote media except in circumstances and to the extent justified
under the laws of Gibraltar to enforce a contractual obligation. This is
without prejudice to Article 10 of Directive 97/7/EC and Directives
95/46/EC and 2002/58/EC and such legislation as from time to implements
those Directives or any successors thereto.

27. Requiring a consumer who wishes to claim on an insurance policy to
produce documents which could not reasonably be considered relevant as to
whether the claim was valid, or failing systematically to respond to pertinent
correspondence, in order to dissuade a consumer from exercising his
contractual rights.

28. Including in an advertisement a direct exhortation to children to buy
advertised services or persuade their parents or other adults to buy
advertised services for them. This provision is without prejudice to Article
16 of Directive 89/552/EEC on television broadcasting and such legislation
as from time to time implements that Directive or any successor thereto.
Consumer Protection (Unfair Trading)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2008-18

29. Demanding immediate or deferred payment for services supplied by the
trader, but not solicited by the consumer except where the service is a
substitute supplied in conformity with section 14A.

30. Explicitly informing a consumer that if he does not buy the service, the
trader's job or livelihood will be in jeopardy.

31. Creating the false impression that the consumer has already won, will
win, or will on doing a particular act win, a prize or other equivalent benefit,
when in fact either

(a) there is no prize or other equivalent benefit; or

(b) taking any action in relation to claiming the prize or other
equivalent benefit is subject to the consumer paying money or
incurring a cost.
Consumer Protection (Unfair Trading)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2008-18
SCHEDULE 2

Section 7(6)

COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR
ADVERTISING AND COMMERCIAL PRACTICES

1. Articles 4 and 5 of Directive 97/7/EC of the European Parliament and of
the Council of 20 May 1997 on the protection of consumers in respect of
distance contracts.

2. Article 3 of Council Directive 90/314/EEC of 13 June 1990 on package
travel, package holidays and package tours.

3. Article 3(3) of Directive 94/47/EC of the European Parliament and of the
Council of 26 October 1994 on the protection of purchasers in respect of
certain aspects of contracts relating to the purchase of a right to use
immovable properties on a timeshare basis.

4. Article 3(4) of Directive 98/6/EC of the European Parliament and of the
Council of 16 February 1998 on consumer protection in the indication of the
prices of products offered to consumers.

5. Articles 5 and 6 of Directive 2000/31/EC of the European Parliament and
of the Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market (Directive
on electronic commerce).

6. Article 1(d) of Directive 98/7/EC of the European Parliament and of the
Council of 16 February 1998 amending Council Directive 87/102/EEC for
the approximation of the laws, regulations and administrative provisions of
the Member States concerning consumer credit.

7. Articles 3 and 4 of Directive 2002/65/EC of 23 September 2002
concerning the distance marketing of consumer financial services.

8. Article 1(9) of Directive 2001/107/EC of the European Parliament and of
the Council of 21 January 2002 amending Council Directive 85/611/EEC on
the coordination of laws, regulations and administrative provisions relating
to undertakings for collective investment in transferable securities (UCITS)
with a view to regulating management companies and simplified
prospectuses.

9. Articles 12 and 13 of Directive 2002/92/EC of the European Parliament
and of the Council of 9 December 2002 on insurance mediation.

Consumer Protection (Unfair Trading)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2008-18
10. Article 36 of Directive 2002/83/EC of the European Parliament and of
the Council of 5 November 2002 concerning life assurance.

11. Article 19 of Directive 2004/39/EC of the European Parliament and of
the Council of 21 April 2004 on markets in financial instruments.

12. Articles 31 and 43 of Council Directive 92/49/EEC of 18 June 1992 on
the coordination of laws, regulations and administrative provisions relating
to direct insurance other than life assurance (third non-life insurance
Directive).

13. Articles 5, 7 and 8 of Directive 2003/71/EC of the European Parliament
and of the Council of 4 November 2003 on the prospectus to be published
when securities are offered to the public or admitted to trading.