The Unfair Commercial Practices Directive

European Review of Contract Law

Volumn 1, Issue 4, 2005, Pages 417-441

  Collins, Hugh ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 80053898618     PISSN: 16149920     EISSN: 16149939     Source Type: Journal    
DOI: 10.1515/ercl.2005.1.4.417     Document Type: Article

References (27)

1. Dir 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/250/EEC, Directives 97/7/EC, 98/7/EC
2. and 2002/65/EC and Regulation No 2006/2004, OJEC L 149/22 (11. 6. 2005). Except where otherwise indicated, references in notes to Articles and Annexes are to this Directive.
3. COM(2001) 531 (2 October 2001); see also the Commission’s Follow-up Communication to the Green Paper on EU Consumer Protection, 11 June 2002, COM(2002) 289. The Commission has in fact been making proposals for legislation regarding fair trading since at least 1978: see H.-W. Micklitz, ‘A General Framework Directive on Fair Trading’, in H. Collins (ed), The Forthcoming EC Directive on Unfair Commercial Practices (The Hague: Kluwer Law International, 2004) 43, 44–45.
4. Dir 2005/29 Art 19 – to be precise 12 June 2007.
5. G. Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying law Ends Up in New Divergences’, (1998) 61 Modern Law Review 11.
6. For comparative studies obtained by the European Commission see research reports at: http:// europa.eu.int/comm./consumers/cons_int/safe_shop/fair_bus_pract/green_ pap_comm./studies/index_en.htm; see also, Department of Trade and Industry, Comparative Report on Consumer Policy Regimes (London, October 2003), available at: www.dti.gov.uk/ccp/publications.htm.
7. For various suggestions of this kind, see: H. Collins, ‘EC Regulation of Commercial Practices’, in Collins, n 2 above, 1, 30; Micklitz, n 2 above, 43, 76; and G. Howells, ‘Co-regulation’s Role in the Development of European Fair Trading Laws’, in Collins, n 2 above, 119.
8. Department of Trade and Industry, The European Commission’s Consultation on the Follow-up Communication to the Green Paper on EU Consumer Protection: Response of the UK Government (London: DTI, October 2002) para 28.
9. Art 11(2). In addition, by Art 16, the need to provide effective enforcement measures includes both its inclusion in the procedures for collective actions for injunctive relief (Dir 98/27) and the duty to promote cooperation between national authorities responsible for the enforcement of consumer protection law (Regulation No 2006/2004).
10. European Commission, A More Coherent European Contract Law: Action Plan, 12 February 2003, COM(2003) 68 final, OJEC 2003 C 63/1. For discussion of these proposals see: M. Meli / M. R. Maugeri (eds), L’Armonizzazione Del Diritto Privato Europeo: Il Piano D’Azione 2003 (Milano: Guiffrè, 2004); V. Roppo (ed), A European Civil Code?: Perspective and Problems (Milano: Guiffrè, 2005); Study Group on Social Justice in European Private Law, ‘Social Justice in European Contract Law:
11. th Report of Session 2004–05’, European Contract Law – the Way Forward? (London, 5/4/05) HL Paper 95.
12. In the original proposed amendment, however, the requirement of good faith was identified with the provision in the unfair terms in consumer contracts Directive 93/13: Opinion of the Committee on the Environment, Public Health and Consumer Policy of the European parliament, 24 November 2003, 2003/0134(COD).
13. The preamble also refers to EC Art 153, however, which suggests that consumer protection can be regarded as an objective of the Directive for the purpose of interpretation in the case of uncertainty about the needs of the internal market. For the limits of the legal basis in Art 153, see: H.-W. Micklitz / S. Weatherill, ‘Consumer Policy in the European Community: Before and After Maastricht’, (1993) Journal of Consumer Policy 285; J. Stuyck, ‘European Consumer Law After the Treaty of Amsterdam: Consumer Policy in or Beyond the Internal Market?’, (2000) 37 Common Market Law Review 367.
14. Art 6(2)(a); Annex 1, para 13 in the black list also includes ‘Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.’
15. Eg Dir 89/522, as amended by Dir 97/36 (television without frontiers); Dir 2000/31 (e-commerce), though these directives also establish some minimum standards.
16. Countries supporting the country of origin principle were UK, Netherlands, Luxembourg and Estonia: Competitiveness Council, political agreement, Brussels, 25 May 2004, 9667/04, Annex 2, para 2.
17. For this reason Denmark and Sweden did not support the Directive: Competitiveness Council, political agreement, Brussels, 25 May 2004, 9667/04, Annex 2, para 4.
18. Case C-52/00 Commission v France [2002] ECR I-3827 (ECJ).
19. G. Howells / T. Wilhelmsson, ‘EC Consumer Law: Has it Come of Age?’, (2003) 9 European Law Journal 370.
20. An ‘invitation to purchase is defined as ‘a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enable the consumer to make a purchase’: Art 2(i).
21. Art 7(5). The Directive includes in Annex II a non-exhaustive list of the existing Directives that impose information requirements in the context of advertising and marketing.
22. See the analysis in R. Sefton-Green (ed), Mistake, Fraud and Duties to Inform in European Contract Law (Cambridge: Cambridge University Press, 2005).
23. Amended Proposal for a Regulation concerning Sales Promotions in the Single Market COM(2002) 585 final, Brussels 25. 10. 2002; Following disagreements in Council, the Dutch presidency proposed various compromises that were not accepted: Sales Promotion Regulation 17 September 2004 (12498/04), and Note of Competitiveness Council Meeting of 24 September 2004. Outstanding issues concern the need for full harmonisation, the extent of information duties, and whether or not to use a Regulation as opposed to a Directive.
24. Art 14, which amends Dir 84/450. The definition of ‘misleading’ in the amended Directive on advertising does include, however, the definition provided in the new Directive.
25. Dir 97/7 (distance selling), Art 9; Dir 2002/65 (distance marketing of financial services), Art 9.
26. Competitiveness Council, political agreement, Brussels, 25 May 2004, 9667/04, Annex 2, para 3.
27. For a study of the possible impact of the directive see: http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/impact_assessment_en.pdf.