- •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
The UCPD in Context 99
international law, in particular private international law governing contractual and non-contractual obligations, and that this means that the consumer in any case benefits from the protection granted to him by the consumer legislation in force in his Member State.32
Unsurprisingly, the Commission has accepted most of the amendments proposed by the Parliament. On 4 April 2006, the Commission presented its amended proposal for a Directive on Services in the internal market33 and the provisions on the freedom to provide services as amended by the EP appear to have undergone only minor drafting adjustments.34 Also the rules on supervision are in principle accepted by the Commission, even though some differences may be detected here.35 Moreover, the express exclusion of rules of private international law on contractual and non-contractual obligations appears to be accepted by the Commission with only minor adjustments.36
In conclusion, the Service Proposal as amended after the first Parliamentary reading no longer seems to have significant consequences for the UCPD. The rules on supervision in the Service Proposal may become of relevance, as it is not expressly stated in the UCPD in which Member State unfair commercial practices should be fought. However, under the amended Service Proposal, efforts have been made to guarantee the Member State of destination certain powers of supervision. This seems better in line with the Member States’ intentions behind the UCPD than the initial country-of-ori- gin principle. Still, if we look to consumer law outside the field harmonised by the UCPD—for example in business-to-business relations—even the amended Service Proposal may still mean that host Member States will have to supervise service providers’ marketing activities in accordance with rules of the home Member States.
5. FUTURE APPROACH OF THE COURT OF JUSTICE
Whereas the destiny of the Service Proposal is still uncertain, there is no doubt that the Court of Justice will be called upon to interpret the UCPD. The Court of Justice has several choices to make when it is presented with
32Ibid, Art 3(2) and (3).
33Amended proposal for a Directive of the European Parliament and of the Council on services in the internal market, COM(2006)0160 final.
34Art 16 in the Commission’s proposal, above n 33.
35The Commission’s description of the extent of the supervision to be carried out in the country of destination appears more guarded than that of Parliament: see Arts 34–35 of the Commission’s amended proposal: cf in particular Art 17 of the Service Proposal as amended by the Parliament, above n 26.
36Art 3(2) of the Commission’s amended proposal, above n 33.
100 Ida Otken Eriksson and Ulf Öberg
the first cases under the Directive. The main question is to what extent the Court will detail its answers to requests for preliminary references. As a full harmonisation measure, the UCPD seems to require the Court of Justice to rule in detail on what may constitute an unfair commercial practice.
This seems to be slightly at odds with the recent approach of the Court in leaving certain assessments to the referring national courts, taking account of all relevant circumstances. This trend in the case law is understandable, given the limited resources of the Court and the current state of development of Community law. It also fits well into the discussions of a revision of the CILFIT doctrine,37 the Köbler ruling38 and the increased responsibilities of national courts. Such an approach from the Court in this relatively new area of Community law—‘burdened’ not only with deeply rooted traditions in national law, but also with newly reformed legislation39—could still seriously threaten and undermine the full effectiveness of the UCPD. If the UCPD has to be interpreted in the same manner in all courts throughout the Community, this requires a certain degree of centralisation and ‘handson’ approach by the Court, giving rather detailed answers to preliminary references. If the Court leaves a significant margin of appreciation to referring courts, other national courts will hesitate to refer preliminary questions and instead decide cases under the UCPD themselves.
It is difficult to second-guess how the Court will react. Most comparable previous case law has concerned significantly different legislation. In Freiburger Kommunalbauten, the Court stated that it ‘may interpret general criteria used by the Community legislature in order to define the concept of unfair terms’, but that it ‘should not rule on the application of these general criteria to a particular term, which must be considered in the light of the particular circumstances of the case in question’.40
However, this case concerned the Unfair Terms Directive which is only a minimum harmonisation measure, and the annex specifying what may be unfair terms is, according to the Court, only of indicative and illustrative value.41 In our view it seems necessary for the Court—at least initially—to take a somewhat more detailed approach to the UCPD in order to ensure that the full harmonisation ambition carries through.
37Case 77/83 Srl CILFIT and others and Lanificio di Gavardo SpA v. Ministero della sanità
[1984] ECR 1257.
38Case C–224/01 Gerhard Köbler v Republik Österreich [2003] ECR I–10239.
39Eg in Denmark and Germany.
40Case C–237/02 Freiburger Kommunalbauten [2004] ECR I–3403, para. 22.
41Case C–478/99 Commission v Sweden [2002] ECR I–4147, para 20.
The UCPD in Context 101
This being the case, it may well be that national consumer agencies and/ or associations will have an interest in bringing cases to national courts and/or to the Court of Justice ‘as quickly as possibly’ after the entry into force of the UCPD in order to secure their ‘national’ understanding of the Directive. If the UCPD is to be understood as a full harmonisation measure, national courts’ decisions will have the effect of more or less foreclosing other courts from coming to differing results in similar situations. Thus, national consumer agencies may have an interest in getting their ‘pet issues’ of interpretation submitted to and throughly argued before the Court of Justice, a phenomenon that could perhaps be called a ‘Race to the Court’.
6. CONCLUSION
The UCPD is certainly not an uncomplicated piece of legislation.42 Seen in a wider context, it raises certain problems concerning its legal basis in the Treaty, its scope of application, its relation to the proposal for a directive on services in the internal market and as regards the future approach of the Court of Justice. None of these difficulties, however, seem to be insurmountable, nor should they hinder us from seeing the UCPD as a pioneering new development in EU law. There is no doubt that the UCPD is a high-risk venture, having regard to the strong traditions in the Member States. But if all involved—including Member States, the Commission, practising lawyers and the Court of Justice—shoulder their responsibility and accept the full harmonisation at its face value, the UCPD has enormous potential and may indeed—with words borrowed from the Commission’s initial proposal for a directive on Services in the internal market—contribute to realising a ‘genuine’ internal market.
42 For a comprehensive examination of the UCPD and all its ‘challenges’ see J Stuyck, E Terryn and T van Dyck, ‘Confidence through Fairness? The New Directive on Unfair Business- to-consumer Commercial Practices in the Internal Market’ (2006) 43 CMLRev 107.