The Perspective of the New CEE Member States 81

To sum up, the accession process has left the law of fair trading in the CEE candidate states in a fragmented and uncertain state. The initial centring of the rules on fair trading in the area of competition law has been disrupted. Additional layers of consumer protection and more specific advertising law have been added. Somewhat poignantly, it could probably be said that the fragmentation and the ambiguities in the Community’s own approach to fair trading have produced spill-over effects on the law in the candidate states and have there been exacerbated by local institutional idiosyncracies.

At the same time, it would not be far-fetched to suggest that the direction of Community leverage could be regarded as indicative of the shape which Community fair trading law will take in the future. Thus, the insistence on comprehensive Consumer Protection Acts and on treating advertising regulation as part of the framework of consumer protection foreshadows the approach taken in the UCPD. Likewise the endorsement of centralised consumer protection agencies as best equipped to shoulder the monitoring and enforcement of the consumer protection acquis foreshadows the approach taken in the Consumer Protection Cooperation Regulation.131

6. DISENTANGLING THE LOGIC OF COMMUNITY INFLUENCE

It is not the place here to engage in a full-blown discussion of the vices and virtues of the enlargement process practised as a form of ‘external governance’.132 The legitimacy concerns raised by certain aspects of this methodology have been discussed elsewhere.133 What appears important, however, is to try and disentangle the logic of Community influence, since similar logic may be dictating the interaction between the Community and its Member States in other areas of integration.

(a) The Joint Interest of the Rational ‘Accession-seeker’ and the Rational ‘Accession-provider’

Given the limited time period within which the enlargement of the EU was supposed to take place and the enormous strain on scarce resources it exerted on both sides of the Union threshold, certain awkward features of the process of incorporation of the acquis are not surprising. To a large extent they can be explained by what could be dubbed the joint interest of the rational ‘accession-seeker’ and the rational ‘accession-provider’.

131On the boomerang effects of enlargement see Bakardjieva Engelbrekt, above n 104.

132Schimmelfennig and Sedelmeier, above n 7.

133See Bakardjieva Engelbrekt, above n 104.

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Whereas politicians and public officials of the candidate countries seek rapid accession and want to demonstrate visible progress, politicians and officials of the Community institutions (notably the Commission) require palpable results that are easy to identify, measure and monitor. Seen in this light the preference for discrete interventions in the form of specific legislative acts corresponding more neatly to Community legislative compartments is well understood. Such interventions are easy to manage and to observe. Perplexing issues of grappling with system complexity and ensuring coherence are avoided. The costs of penetrating the deeply engrained multiple social and cultural layers of legal system are not incurred.134

Similarly understandable is the preference for building regulative agencies for each area of EU law and policy. The agency provides a ‘high visibility’ arena, which allows the candidate countries to point to its existence in progress reports and when criticised for insufficient administrative capacity. For the EU institutions the agency is a partner that can be monitored and held accountable for possible failures in the transposition and enforcement process on a more continuous basis than changing governments and Parliamentary majorities. At the same time, the availability of an agency is a practical response to the general aversion to dealing with the minutiae of enforcement design. The notoriously mind-boggling task of linking enforcement and sanctions with the existing system of administrative, criminal and civil procedure can then be dealt with only in passing.

The logic of accession probably also explains an obvious differentiation among the candidate states. The process of implementation of the consumer protection acquis demonstrates that the more eager the accession-seeker, the greater the propensity has been to resort to specialised acts and regulative agencies. A growing self-confidence of a candidate country is, conversely, associated with intensified attempts to search for internal coherence and to integrate the Community acquis in a more meaningful way within the texture and architecture of domestic legal and institutional system.135 Thus, the greater the success of rule-transfer on the surface, the greater the suspicion of a rubber-stamp law-making with limited participation of and influence by domestic groups.

134In a similar sense D Smilov, ‘EU Enlargement and the Constitutional Principle of Judicial Independence’ in W Sadurski, A Czarnota and M Krygier (eds), Spreading Democracy and the Rule of Law? Implications of EU Enlargement for the Rule of Law, Democracy and Constitutionalism in Post-Communist Legal Orders (Dordrecht, Springer, 2006) 313–34.

135For similar patterns in the area of civil service reform see A Dimitrova, ‘Europeanisation and Civil Service Reform in Central and Eastern Europe’ in Schimmelfennig and Sedelmeier (eds), above n 7, 84; B Bugaricˇ, ‘The Europeanisation of National Administration in Central and Eastern Europe’ in W Sadurski, J Ziller and K Zurek (eds), Après Enlargement. Legal and Political Responses in Central and Eastern Europe (San Domenico di Fiesole, Robert Schumann Centre for Advanced Studies, EUI, 2006) 201.

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get a comprehensive regulative grip and operates with a concept of commercial practices which is broader than the more technical ‘advertising’. It is even broader than the conventional concept of commercial or marketing practices used in Member States with comprehensive market law statutes.137

(ii)The UCPD was conceived as a framework directive, which at least in theory, implies using Community legislation to provide only the main regulatory guidelines and leaving the detail to other institutional processes.

(iii)In the same line of coherence enhancement is found the most distinctive feature of the Directive, namely the use of a general-clause approach. This is a major break-through given the staunch resistance on the part of the UK to such an approach and the perceived uncertainty it entails.

On a closer look, however, the Directive reveals a number of features that raise serious doubts about its potential to fulfil the promise of coherence and simplification. (i) The Directive unequivocally places consumers at the centre of attention. It draws a rather strict dividing line between B2B and B2C relations.138 In this the Directive confirms and even deepens the already visible fissure between a market-building and a market-correct- ing view of the regulation of commercial practices. (ii) In a similar vein, partly due to inherent limitations on Community law-making powers, the Directive leaves outside its scope consumers’ non-economic interests as well as regulation based on taste and decency. While this is a politically sound solution, it definitely does not contribute to regulatory clarity and simplicity. (iii) Despite the widely advertised simplification, the three-tier structure of the Directive opens a number of questions as to the relations between the various levels. Moreover, the black list, which initially was intended to outline only a few straightforward and central situations of unfairness, gradually turned into a long scroll of sometimes esoteric and sometimes fuzzy examples. Whatever one may think of simplification, the list in any case does not seem to support claims of deregulation. (iv) Another concession to the pledge to achieve simplification and deregulation is the persistence of a number of legislative acts regulating commercial practices in specific sectors, eg product-specific and media-specific directives and regulations. The relationship of these instruments with the directive is not always clear.139 It is further complicated by a complex scheme of transition periods and proportionality checks.140

In a way, what the Community lawmaker gives with one hand it takes with the other. The flexibility and openness of the general clause is offset

137See e.g. the Swedish Marketing practices law. Cf Bakardjieva Engelbrekt, above n 5.

138In the Preamble, the UCPD acknowledges, however, the indirect positive effects of the regulation of unfair business-to-consumer practices for fairness of competition and the close links between unfairness in B2C and B2B relations. The Commission commits itself to investigating the possibility for a second phase of harmonisation in B2B commercial practices.

139See for instance the exception of health and safety in Art 3(1) UCPD, above n 30.

140See Bakardjieva Engelbrekt, above n 5.

The Perspective of the New CEE Member States 85

by the exacting detail of the black list. The alleged ‘framework’ character of the Directive is thwarted by the insistence on total harmonisation. The claim to simplification is effectively defied by the perseverance of a legion of sector-specific directives and regulations with a not always clear relationship with the Directive. The reasons for the outlined disintegrative elements lie partly in limitations inherent in the constitutional and institutional framework of the European integration process and partly in the inevitable institutional bias stemming from the Directive’s responsible directorate, DG Sanco, as the chief institutional actor.

In this light, the future effect of the Directive on the framework of unfair commercial practices in the CEE states is not easy to gauge. It may not be surprising that the implementation process in many of these states is just in its initial phase. Showing all the signs of ‘legislative fatigue’ as a consequence of enlargement,141 national institutions have not been particularly eager to embark on the next implementation project.

A recent study by the British Institute of International and Comparative Law (BIICL) on the existing national laws on unfair commercial practices in the new EU Member States ventures a preliminary assessment of the expected difficulties with implementation of the Directive in national law. The tone of the study is on the whole optimistic.142 In the new Member States the general view is reported to be that there are no major obstacles that might complicate the process of transposition of the Directive into national law. Yet a look at the more specific questions of implementation detail reveals a slightly different picture. A number of aspects of systemic arrangements, conceptual consistency and institutional design do not have a clear answer and may pose substantial difficulties.

(a) Systemic Arrangements

First, the emphasis on consumer protection in the UCPD and the decision to leave B2B commercial practices outside the scope of the Directive can be expected to give yet another push towards anchoring unfair commercial practices law in the domain of consumer protection and towards a divided approach. Certainly in the BIICL study most countries point to more than

141See C Dupré, ‘Anticipating EU Membership: Importing the Law of the West’, Paper presented at the Workshop: Implications of Enlargement for the Rule of Law and Constitutionalism in Post-Communist Legal Orders, EUI, 28–29 Nov 2003.

142British Institute of International and Comparative Law, ‘Unfair Commercial Practices. An Analysis of the Existing National Laws on Unfair Commercial Practices between Business and Consumers in the New Member States’ British Institute of International and Comparative Law (2005), available at http://ec.europa.eu/consumers/cons-int/safe_shop/fair_bus_pract/analy- sis_national_laws_en_htm (hereinafter the BIICL Report).

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one avenue for transposing the Directive into national law. Yet Consumer Protection Acts are almost invariably indicated as one logical place for transposition (cf Latvia, Slovenia, Estonia, Lithuania). In Poland the Directive is even seen to offer a suitable occasion for introduction of a comprehensive Consumer Protection Act.143 And whereas the reports on the Czech and Slovak Republics in the BIICL study suggest that implementation will proceed by amendment of a number of legislative acts, the recently adopted Consumer Policy Programme of the Czech Ministry of Industry and Trade indicates that implementation of the UCPD will rather enhance the concentration of provisions on marketing practices in the Consumer Protection Act.144

In particular in countries where fair trading rules have been divided between Competition Acts and Consumer Protection Acts there will be strong pressure to centralise all substantive rules implementing the new Directive in the recently adopted Consumer Protection Acts. Lithuania is a case in point. According to the assessment of the national rapporteur in the BIICL study the Directive will deeply influence the national legal system and cannot be implemented without systematic structural changes in Lithuanian civil law. As possible places for implementation of the Directive the Civil Code, the Consumer Protection Law, and the Competition Law are all indicated. However, implementation in the Competition Law is seen as problematic, since an additional adjustment of its scope—normally concerning only business-to-business rela- tions—will have to be made. Similar considerations may influence the choices of the Latvian and Slovenian legislators. Likewise, in Bulgaria, in particular after the entry into force of the new Consumer Protection Act, the ‘natural’ place for the new provisions appears to be in this Act, an option that may affect the rules on unfair competition in the Competition Act.

Another consequence in terms of systemic arrangements concerns the Advertising Acts. Although of relatively recent date, these Acts may now appear as fossils with an uncertain position. The functional concept of advertising in these laws differs from the broader one of commercial practice, but at the same time is not confined to B2C relations. Consequently, they will either be transformed into comprehensive Unfair Commercial Practices Acts, or be retained, but then limited to only product-, mediaand other sector specific advertising regulations. The relationship of such acts to the general regulation of unfair commercial practices will have to be carefully defined.

(b) Substantive Provisions

One of the main promises of the UCPD has been to consolidate existing legislation and to increase conceptual clarity and consistency. However,

143See ibid, at 78.

144See Consumer Policy Programme, 2006–2010, available at http://download.mpo.cz/ get/26603/28977/315454/priloha001.pdf, at 3.

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as a legal discipline requires that any Community intervention, either in the form of harmonised rules on fair trading or in the form of suspended national regulation, be scrutinised through the endogenously produced criteria of systemic coherence and ‘good’ substantive outcome. At the same time the ‘external’ logic of European integration gives priority to the accomplishment of the Common Market.

The UCP Directive is arguably introducing a third kind of logic which complicates the picture. Despite what is claimed in the Preamble, the Directive can hardly be justified solely by reference to market integration. With its aspirations for comprehensiveness, coherence and clear rules, the Directive apparently tries to reinforce and follow the internal logic of fair trading law (including unfair commercial practices law), this time conceived as a Community-wide legal discipline. The kaleidoscopic picture of fair trading law in the new Member States in CEE has hopefully demonstrated that such ambitions would be highly unrealistic and, indeed, unnecessary. The diversity of national systems of substantive law and of law enforcement and institutional design will certainly persist even after implementation of the Directive. Such heterogeneity, however, should not exclusively be a reason for concern for Community institutions, but also be seen as a constant source of institutional innovation and learning, and, thus, an important asset of European integration.