Unfair commercial practices in Portugal

Misleading commercial practices can be misleading actions or misleading omissions.

In relation to omissions, key items of information are defined so that consumers can take informed decisions.

Misleading actions

Any commercial practice is regarded as misleading if it contains false information or information which, even if correct, may deceive the consumer regarding:

• the existence or nature of the product or service;
• the main characteristics of the product or service (such as its advantages, risks or accessories, for example);
• the content and extent of the trader’s commitments (such as the motivation for the commercial practice or the nature of the sales process, for example);
• the price or the manner in which the price is calculated, or the existence of a specific price advantage;
• the need to provide a service, a part or a replacement, or to repair the product;
• the nature, attributes and rights of the trader or of their agent (such as their identity, assets or qualifications, for example);
• the rights of the consumer (such as the right to replace or repair or to withdraw from the contract, for example).

Having regard to the characteristics and circumstances of the specific case, any commercial practices involving the following can be regarded as misleading:

• any trade promotion activity in relation to a product or service that causes confusion with any goods or services, trade marks, trade names or other distinguishing marks of a competitor, including comparative advertising, for example;
• the trader’s failure to meet a commitment arising out of a code of conduct that has informed their responsibilities in their commercial practice.

Actions always regarded as misleading

The following commercial practices are always regarded as misleading:

• claiming to be subject to a code of conduct when this is not the case;
• using a certification, quality or equivalent mark without the relevant authorisation;
• claiming that a code of conduct has been approved by a public body or any other entity when this is not true;
• claiming that a trader, a good or a service has been approved, recognised or authorised by a body when this is not true;
• proposing the purchase of goods or services at a particular price and subsequently refusing to accept orders, presenting the product or a defective sample of the product or service advertised to the consumer with the intention of promoting a different product or service;
• falsely claiming that a product or service or the special conditions of the opportunity are available only for a very limited period in order to deprive the consumer of sufficient opportunity and time to take an informed decision;
• undertaking to provide the post-sale service in a language and subsequently not offering that service;
• declaring that the purchase or sale of a product or service is legal when this is not true;
• presenting the consumer rights provided for by law as a distinctive feature of the offer;
• using content edited by social media to promote the product or service when the trader has funded such promotion;
• making inaccurate claims as to the nature and risk to the safety of the consumer or their family if the product or service is not purchased;
• promoting a similar product or service to lead the consumer to believe that the product or service provided are from the same manufacturer;
• creating, exploiting or promoting a pyramid promotional scheme by which a consumer gives consideration for the opportunity to receive compensation which is derived primarily from the introduction of other consumers;
• claiming that the trader is about to cease trading or move premises when they are not;
• claiming that a product or service is able to facilitate winning in games of chance or fortune;
• falsely claiming that the product or service is able to cure illnesses, dysfunctions or malformations;
• transmitting erroneous information on market conditions or the possibility of coming across the product or service with the intention of leading the consumer to buy them in conditions which are more unfavourable than normal market conditions;
• claiming to offer a competition or prize promotion without awarding the prizes described or an equivalent;
• describing a product 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 delivery of the item;
• including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that they have already ordered the marketed product or service when they have not;
• falsely claiming or creating the impression that the trader is not acting for purposes relating to their trade, or representing themselves as a consumer;
• falsely creating the impression that the after-sales service is available in another Member State.

Misleading omissions

A commercial practice is regarded as misleading if the information which is not provided to the consumer causes them to take a decision that they would not have taken had they been aware of all the available information.

To characterise a practice as a misleading omission, all the characteristics, circumstances and limitations of the means of communication used during the commercial practice are taken into account.

When the means of communication used for the commercial practice are limited in space or time, such limitations and any measures taken by the trader to provide information by other means are taken into account to decide whether information has been omitted.

A misleading omission is regarded as any commercial practice:

• that omits or in which the trader hides or provides, in an unclear or untimely manner, an important piece of information for the consumer to take an informed decision;
• in which the trader fails to identify the commercial intent of the practice, if this cannot be identified from the context.

In order for a misleading omission not to be considered to exist, the following must be presented to the consumer:

• the main characteristics of the product or service;
• the address and identity of the trader and their trade name, and, where applicable, their address and the identity and trade name of the trader on behalf of whom they are acting;
• the price, inclusive of taxes and all supplementary transport, shipment, delivery and postage costs (when the price cannot be calculated in advance, the manner in which it is calculated must be indicated; when costs cannot be calculated in advance, this expenditure must be indicated as the consumer’s responsibility);
• the arrangements for payment, delivery or implementation and the mechanism for dealing with complaints;
• the existence of termination or cancellation rights, irrespective of the name used, provided they derive from legislation or a contract.

For further information, see Decree Law No 57/2008.

Any commercial practice which leads the consumer to take a decision they would not have taken otherwise through harassment, coercion or undue influence is regarded as aggressive.

For a commercial practice to be regarded as aggressive, the following are analysed:

• the timing, location, nature or persistence of the commercial practice;
• the use of threatening or abusive language or behaviour;
• exploitation by the trader of any specific circumstance of such gravity as to impair the consumer’s judgement;
• ny onerous or disproportionate non-contractual barriers when a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader;
• any threat to take action that cannot legally be taken.

Commercial practices always regarded as aggressive

The following commercial practices are always regarded as aggressive:

• creating an impression that the consumer cannot leave the premises until a contract has been concluded;
• contacting the consumer by visiting their residence, failing to comply with a consumer’s request for them to leave their residence or to not return, except in circumstances and to the extent justified in order to enforce a contractual obligation;
• persistently making or sending unwanted or unsolicited representations by telephone, fax, email or any other electronic means or remote media, except in circumstances and to the extent justified in order to enforce a contractual obligation;
• in relation to a consumer’s claim on an insurance policy, requiring the consumer to produce documents irrelevant to the validity of the claim, or persistently failing to respond to the consumer’s correspondence on the matter, in order to dissuade the consumer from exercising contractual rights in respect of that claim;
• including in an advertisement a direct exhortation to children to purchase a product, or to persuade a parent or adult to purchase the goods or services advertised for them;
• demanding that the consumer make immediate or deferred payment for the goods and services or return or safeguard the unsolicited products supplied by the trader;
• explicitly informing a consumer that if they do not purchase the product or service the trader’s job or livelihood will be in jeopardy;
• creating a false impression that a consumer has won or will win a prize or other equivalent benefit when this does not occur or the consumer has to make a payment.

For further information, see Decree Law No 57/2008.

Any contract entered into under the influence of any unfair commercial practice can be annulled by the consumer.

Instead of annulling the contract, the consumer may ask for it to be amended.

If the invalidity only affects certain contract clauses, the consumer may opt to maintain the contract, reduced to its valid content.

For further information, see Decree Law No 57/2008.