- •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
Who is the 'Average Consumer'? 137
generally, one should appreciate that—as this chapter has made abundantly clear—the vision of the consumer in EC judicial and legislative practice is sophisticated enough to take account of a broad sweep of possible vulnerabilities and disadvantages. Moreover, the Court has shown no hesitation in interpreting harmonised measures affecting consumer protection in a manner apt to achieve effective protection of the consumer, recognising the consumer’s relatively weak position relative to the supplier.61 No less is needed in the case of the UCPD. After all, the promotion of a high level of consumer protection in the EC is given constitutional force by Articles 95(3) and 153 EC. This is enough to justify a reading of Article 5(3) which insists on full account being taken of the need for genuine measures of targeted consumer protection, whatever the particular detailed aspect of vulnerability that may be at stake. Similarly the phrase in Article 5(3) which requires that ‘the trader could reasonably be expected to foresee’ the vulnerability of a particular group should be interpreted in a manner which is fully consistent with the need to promote space for genuine initiatives of consumer protection designed to protect particular vulnerable or disadvantaged groups from practices harmful to them. In particular if a regulator could reasonably be expected to foresee such an impact then it should be concluded that so could a trader! To conclude by re-connecting this examination of the Directive to the Court’s existing case law under Article 28 EC, the important feature of a typical decision such as Mars is that Germany failed to demonstrate the existence of a particular vulnerable group of consumers likely to be damaged by the marketing practice in question. The ruling does not rule out properly crafted and properly explained control of practices aimed at consumers generally but evidently designed to exploit and likely to exploit only the vulnerable. This is how Article 5(3) of the Directive should be understood too.
6. CONCLUSION
The EC’s internal market programme constitutes an exercise in deregulation but also an exercise in re-regulation. Harmonisation of laws deregulates the market by eliminating legislative diversity across the EU in favour of a common regime, but choices must be made about the content and quality of that single re-regulatory standard. This ‘dual function’ claimed by harmonisation is the key to understanding how the pattern of ‘EC consumer law’ has taken ever more intricate shape, despite the relative absence of explicit treatment of consumer interest in the Treaty itself. The UCPD fits comfortably into this trend. Agreeing a common rule brings with it an
61 Eg Cases C–240/98–C–244/98 Oceano Grupo Editorial SA v Rocio Murciano Quintero
[2000] ECR I–4941.
138 Stephen Weatherill
inevitable debate about the content and quality of that common rule. And that debate is by no means terminated once the legislative institutions of the EC have had their say, because inevitably points of interpretative ambiguity are delegated for resolution by the Court. The purpose of this chapter has been to situate that task of judicial interpretation in the wider context of EC law’s ‘vision of the consumer’. Most of all I have attempted to show that the Directive need not and should not be read in way that damages the protection of vulnerable or disadvantaged groups of consumers. Instead the Directive should be read with proper awareness of the empirically verifiable consumer who may not behave in a perfectly rational manner because he or she is poor at digesting or assessing information and/or because he or she simply chooses not to allocate scarce resources to intense examination of available information. EC law—in both legislative and judicial practice— does not deny the existence of such a consumer. And therefore the Directive should be applied with respect for the reality of consumer behaviour. Nor does EC law exclude an appreciation that the average consumer is different across Europe. It may normally prove to be the case that common assessments of the presence or absence of unfairness prevail across the EU, but it remains conceivable that a practice may be harmless in state X but harmful, and therefore unlawful, in state Y because consumers in state Y have different tastes, abilities or expectations. This would not be the application of a different legal standard in state Y when contrasted with state X: instead it would be the application of the same legal standard, but taking account of different conditions prevailing in the two markets.
My view is that the case law of the Court does not exclude these interpre- tations—quite the contrary, it supports them. And the EC’s legislative acquis buttresses the argument that consumers are not always smart and self-reli- ant and that they may require regulatory protection. The issue, however, is that where regulatory intervention occurs, the explanations advanced must be a good deal more sophisticated than those which litter the Court’s case law under Article 28, from Cassis to Mars. EC law generally, and this Directive in particular, is built on an assumption that the integration of markets benefits consumers, and this is frequently a benefit that exceeds the costs of diminished regulatory protection at national level—if, indeed, such diminution is a cost at all, which it surely was not in a case such as Cassis. But the law leaves space for the national regulator to present seriously considered justification for rules aimed at protecting the consumer interest. This is true of Article 28 EC, and it is true of Article 5 of the UCPD.
Am I too optimistic? There is of course a risk that this Directive will be used to attack legitimate initiatives of consumer protection. Let us try to counter that risk, while also appreciating the value to the consumer of a well-functioning integrated European market. The way to achieve this has been set out in this chapter.