- •Preface
- •Contents
- •List of Contributors
- •1. Introduction
- •1. CONSUMER LAW: THE GROWTH OF THE LEGISLATIVE ACQUIS
- •2. EC ADVERTISING LAW
- •4. NEW RULES AND NEW TECHNIQUES—AND NEW CHALLENGES
- •2. The Unfair Commercial Practices Directive and its General Prohibition
- •1. INTRODUCTION
- •2. THE SCOPE (ARTICLE 3)
- •3. INTERNAL MARKET (ARTICLE 4)
- •4. THE STRUCTURE
- •5. THE GENERAL PROHIBITION (ARTICLE 5)
- •7. ENFORCEMENT
- •8. CONCLUSIONS
- •1. SOME BASIC FEATURES
- •2. REDUCED OR RAISED LEVEL OF CONSUMER PROTECTION?
- •5. WILL FULL HARMONISATION BE ACHIEVED?
- •1. INTRODUCTION
- •3. THE FRAGMENTATION OF COMMUNITY RULES ON COMMERCIAL PRACTICES PRIOR TO THE UCPD
- •5. THE IMPACT OF ENLARGEMENT
- •6. DISENTANGLING THE LOGIC OF COMMUNITY INFLUENCE
- •7. THE UCPD AND ITS PROSPECTIVE EFFECTS ON CEE UNFAIR COMMERCIAL PRACTICES LAW: COHERENCE AT LAST?
- •1. INTRODUCTION
- •2. LEGAL BASIS
- •3. GENERAL CHARACTER OF EC CONSUMER PROTECTION RULES
- •5. FUTURE APPROACH OF THE COURT OF JUSTICE
- •6. CONCLUSION
- •1. INTRODUCTION
- •2. SOME CRITICISMS
- •3. POLICY DEBATES ON MAXIMAL HARMONISATION
- •4. THE INTERNAL MARKET CLAUSE
- •5. CONCLUSION
- •1. INTRODUCTION
- •2. THE VISION OF THE CONSUMER IN EC LAW—CONSTITUTIONAL INHIBITIONS TO THE DISCOVERY OF REGULATORY COHERENCE
- •5. THE ‘AVERAGE CONSUMER’ UNDER THE UCPD
- •6. CONCLUSION
- •8. The Relationship of the Unfair Commercial Practices Directive to European and National Contract Laws
- •1. INTRODUCTION
- •3. POSSIBLE INFLUENCES OF THE UCPD ON ‘CONTRACT LAW’
- •5. CONCLUSION
- •9. The Unfair Commercial Practices Directive and its Consequences for the Regulation of Sales Promotion and the Law of Unfair Competition
- •1. INTRODUCTION
- •2. THE DIRECTIVE IN CONTEXT
- •3. THE CASE LAW OF THE COURT OF JUSTICE ON FREE MOVEMENT IN THE AREA OF COMMERCIAL PRACTICES
- •4. THE UNFAIR COMMERCIAL PRACTICES DIRECTIVE: B2C ONLY
- •5. THE LAW OF UNFAIR COMPETITION IN THE MEMBER STATES
- •6. NATIONAL RULES ON SALES PROMOTIONS AFTER THE UCPD
- •7. THE INFLUENCE OF ANTITRUST LAW ON THE LAW OF CONSUMER PROTECTION AND UNFAIR COMPETITION
- •8. PLEA FOR AN INTEGRATED APPROACH AT THE EC LEVEL
- •4. THE EXAMPLE OF LOOK-ALIKES
- •5. SUMMARY AND CONCLUSIONS
- •11. Unfair Commercial Practices: Stamping out Misleading Packaging
- •1. INTRODUCTION—THE THESIS OF THIS PAPER
- •3. THE COPYCAT PROBLEM
- •4. THE IMPACT ON CONSUMERS OF COPYCAT PRODUCTS
- •5. THE UNFAIR COMMERCIAL PRACTICES DIRECTIVE
- •7. THE INTERPLAY BETWEEN PUBLIC AND PRIVATE ENFORCEMENT UNDER THE DIRECTIVE
- •1. INTRODUCTION
- •3. IMPLEMENTING THE UCPD—MAIN CHALLENGES
- •4. AFFECTED LEGISLATION
- •5. TOWARDS IMPLEMENTING THE UCPD INTO UK LAW
- •6. POST-IMPLEMENTATION ISSUES
- •7. STEPS TAKEN TOWARDS IMPLEMENTATION BY THE UK
- •8. CONCLUSIONS
- •2. THE STORY BEGINS—DISTANT SHOPPING (SWEEPSTAKES I)
- •4. REGULATION 2006/2004—NATIONALISATION (VERSTAATLICHUNG) OF LAW ENFORCEMENT
- •Appendix
- •Index
Relationship with European and National Contract Laws 157
between contractual interpretation at common law and legislative regulation of unfair contract terms. For, where an express term in a consumer contract gives a power to the business (notably, under a termination, cancellation or variation clause), the potential for its exercise unreasonably would be a factor arguing for the unfairness of the term under the Unfair Terms in Consumer Contracts Regulations, which implemented in the UK the 1993 Directive.106 It would be odd if a court were to interpret a wide express contract term narrowly (perhaps qualifying it by reference to a condition of reasonableness) so that it avoided being held ‘not binding’ on the consumer under the Regulations.107 Here, therefore, the 2005 Directive’s acceptance of a substantive requirement of good faith should not render another European Directive’s protection less effective.
5. CONCLUSION
At first sight, the statement in Article 3(2) of the UCPD that its provisions are ‘without prejudice’ to ‘contract law’ suggests that it will have no effect on either national or Community contract laws. In this chapter, I have argued that this Article should be given a more restrictive interpretation, being concerned rather to ensure that national contract laws do not need to be changed so as to conform to the fully harmonised pattern of regulation set out by the 2005 Directive. Moreover, I have suggested that the Directive may indeed affect both European and national contract laws, taking ‘contract laws’ for this purpose in the sense of the law governing the relative rights and duties of parties to consumer contracts however these are formally classified.
In this respect, it is one of the most interesting attributes of European directives that, once implemented, their provisions belong to two sets of legal norms: at the European level, the acquis communautaire; and at the national level, whatever rules already exist to deal with the same or similar circumstances. At the Community level, this means that the European Court sees each directive—however ‘sectoral’ or particular its ambit—as forming part of a wider legal picture, based on a wider European competence, reflective of and subject to European legal general principle and the object of its own interpretative approaches. I have suggested that this belonging of the
106In the UK, this has been the consistent approach of the Office of Fair Trading: OFT, Unfair Contract Terms, Bulletin No. 1 (London, OFT, May 1996) para. 1.2, at 5.
107In this respect, Art 5(2) of the Unfair Terms in Consumer Contracts Directive 1993, above n 16, provides that its own requirement of interpretation most in favour of the consumer as regards ambiguous contract terms will not apply to the preventive measures envisaged by Art
7.As the ECJ has held, this exception has the paradoxical effect of benefiting consumers: Case C–70/03 Commission v Spain [2004] ECR I–07999 esp. at para 16 and see AG Geelhoed, ibid, at para 13.
158 Simon Whittaker
UCPD to the consumer acquis may well have significant consequences for the interpretation of other directives within the family, even though they concern ‘contract law’, giving the development of the notion of ‘average consumer’ by way of illustration.
At the national level, implementation of the UCPD will make a number of specific requirements but will also set a general approach to the regulation of business practices in relation to consumers. Both aspects may have an impact on the development and/or future application of national laws, the one by fulfilling the conditions for the application of national rules (such as the ‘fault’ element for civil liability or a duty for the invalidity of a contract on the grounds of a failure to inform), the other by challenging the very paradigm on which consumer contracting takes place. However, the force of the ‘without prejudice’ clause in Article 3(2) ensures that the extent to which they do so remains within the hands of Member States, whether as a matter of legislation or of judicial interpretation.