In short. EU courts or administrative authorities can require evidence supporting factual commercial claims and treat claims as inaccurate if that evidence is missing or insufficient.
Definition: Yes. Article 12 of the EU Unfair Commercial Practices Directive requires Member States to empower courts or administrative authorities to demand evidence supporting factual commercial claims where appropriate in a particular case. They may treat claims as inaccurate when the requested evidence is missing or insufficient.
Key facts
- Article 12(a) in EUR-Lex's 28 May 2022 consolidation requires the evidence request to take account of the legitimate interests of the trader and other parties to the proceedings.
- As of 17 October 2026, the 27 September 2026 consolidation retains Article 12(b)'s power to consider factual claims inaccurate when evidence is absent or deemed insufficient.
- The European Commission's 2021 guidance explains that traders must have evidence supporting their claims and be ready to provide it to competent enforcement authorities in an understandable form if challenged.
Which website claims fall within the directive?
A trader is a person or business acting for purposes related to its trade or profession. A consumer acts outside those purposes. Article 2(d) of the directive defines commercial practices to include advertising and marketing directly connected with promoting, selling or supplying a product to consumers. Article 3(1) covers practices before, during and after a commercial transaction.
Article 12 concerns factual claims. Article 6(1)(b) identifies product characteristics relevant to misleading actions, including benefits, expected results and the results of tests or checks. The misleading-action test also considers whether the practice causes or is likely to cause a consumer to take a transactional decision they otherwise would not take.
When can an authority demand evidence?
Article 12(a) of the directive places this power within the civil or administrative proceedings provided for in Article 11. The request must appear appropriate in the circumstances, taking account of the legitimate interests of the trader and other parties.
Article 11(1) leaves Member States to determine the available court or administrative routes. Article 12(b) then permits the court or authority to consider a factual claim inaccurate if the trader fails to furnish the evidence demanded or the evidence is deemed insufficient.
What supporting evidence should a business hold?
Substantiation means supporting a factual claim with evidence. For environmental claims, section 4.1.1.5 of the Commission guidance describes independent, verifiable and generally recognised evidence reflecting updated scientific findings and methods.
The same section says traders should hold the necessary evidence when a claim enters use, or be certain it can be obtained and presented on request. Supporting documentation should remain current for as long as the claim remains in marketing. It also identifies trade secrets and intellectual property as legitimate interests that authorities may need to treat confidentially. This is Commission guidance; the legislation itself has legal force.
Related terms
- When can missing website information be a misleading omission?
- Which conditions apply to competitor comparisons on a business website?
- What must a shop explain about how it verifies customer reviews?
FAQ
Must I publish all supporting evidence on my website?
The Commission guidance, in its discussion of environmental claims under Article 12, states that the directive contains no equivalent obligation to provide supporting documentation to consumers.
Does the authority need proof that a customer lost money?
Under Article 11(2) of the directive, powers to stop or prohibit unfair commercial practices apply even without proof of actual loss or damage, or of the trader's intention or negligence.
Sources
- EUR-Lex, "Unfair Commercial Practices Directive, consolidated text", 28 May 2022
- EUR-Lex, "Unfair Commercial Practices Directive, consolidated text", 27 September 2026
- European Commission, "Guidance on the interpretation and application of Directive 2005/29/EC", 29 December 2021
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