(1) Unfairness is deemed to have occurred where a person engages in an aggressive commercial practice which is suited to causing the consumer or other market participant to take a transactional decision which he or she would not have taken otherwise. A commercial practice is regarded as aggressive where, in the factual context and taking account of all its features and circumstances, it is suited to significantly impairing the consumer’s or other market participant’s freedom of choice by
1. harassment,
2. coercion, including the use of physical force, or
3. undue influence.
Undue influence is deemed to have occurred where the entrepreneur exploits a position of power in relation to the consumer or other market participant so as to exert pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s or other market participant’s ability to take an informed decision.
(2) When determining whether a commercial practice is aggressive within the meaning of subsection (1) sentence 2, account is to be taken of
1. the timing, location, nature or persistence of the practice;
2. the use of threatening or abusive language or behaviour;
3. the deliberate exploitation of any specific misfortune or circumstance of such gravity as to impair the consumer’s or other market participant’s judgement in order to influence his or her decision;
4. any onerous or disproportionate non-contractual barriers imposed by the entrepreneur where a consumer or other market participant wishes to exercise rights under the contract, including the right to terminate a contract or to switch to other goods or services or to another entrepreneur;
5. any threat to take any illegal action.
The circumstances of which account is to be taken pursuant to no. 3 include, in particular, the mental and physical infirmity, age, inexperience in commercial dealings, credulity, fears and predicament of consumers.