EUROPEAN FAIR TRADING LAW Markets and the Law Series Editor: Geraint Howells, Lancaster University, UK Markets and the Law is concerned with the way the law interacts with the market through regulation, self-regulation and the impact of private law regimes It looks at the impact of regional and international organizations (eg EC and WTO) and many of the works adopt a comparative approach and/or appeal to an international audience Examples of subjects covered include trade laws, intellectual property, sales law, insurance, consumer law, banking, financial markets, labour law, environmental law and social regulation affecting the market as well as competition law The series includes texts covering a broad area, monographs on focused issues, and collections of essays dealing with particular themes Other titles in the series Information Rights and Obligations A Challenge for Party Autonomy and Transactional Fairness Edited by Geraint Howells, André Janssen and Reiner Schulze ISBN 7546 2432 Cyber Consumer Law and Unfair Trading Practices Cristina Coteanu ISBN 7546 2417 X Consumer Protection Law Geraint Howells and Stephen Weatherill ISBN 7546 2338 (Pbk) ISBN 7546 2331 (Hbk) Personal Insolvency Law, Regulation and Policy David Milman ISBN 7546 4302 European Fair Trading Law The Unfair Commercial Practices Directive GERAINT HOWELLS Lancaster University, UK HANS-W MICKLITZ University of Bamberg, Germany THOMAS WILHELMSSON University of Helsinki, Finland © Geraint Howells, Hans-W Micklitz and Thomas Wilhelmsson 2006 All rights reserved No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher Geraint Howells, Hans-W Micklitz and Thomas Wilhelmsson have asserted their moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the authors of this work Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Howells, Geraint G European fair trading law : the Unfair Commercial Practices Directive - (Markets and the law) European Union Directive 2005/29/EC Competition, Unfair - Law and legislation - European Union countries Restraint of trade - European Union countries Consumer protection - European Union countries I Title II Micklitz, Hans-W III Wilhelmsson, Thomas, 1949343.4'072 Library of Congress Cataloging-in-Publication Data Howells, Geraint G European fair trading law : the unfair commercial practices directive / by Geraint Howells, Hans Micklitz, Thomas Wilhelmsson p cm (Markets and the law) Includes index ISBN 0-7546-4589-4 Competition, Unfair European Union countries Consumer protection Law and legislation European Union countries I Micklitz, Hans-W II Wilhelmsson, Thomas, 1949- III Title IV Series KJE6536.H69 2006 343.24'072 dc22 2006012259 ISBN-10: 0-7546-4589-4 ISBN-13: 978-0-7546-4589-4 Printed and bound in Great Britain by MPG Books Ltd, Bodmin Cornwall Contents Preface List of Directives with Abbreviations INTRODUCTION Geraint Howells a Background b The Traditions of Fair Trade Regulation within the Member States (i) Special regime for consumers? (ii) Use of general clause? (iii) Consumer typology (iv) Strict liability? (v) Civil/criminal law (vi) Sanctions (vii) Soft law c The Community Acquis (i) Negative harmonisation (ii) Legislative competence (iii) Positive regulation before the Unfair Commercial Practices Directive (iv) Community policy d The Preparation of the Directive and Major Points of Debate (i) Unfairness standard (ii) Maximum harmonisation (iii) Blacklist (iv) Codes of conduct (v) Enforcement e Outline of the Directive f Revision, Transposition and Entry into Force (i) Entry into force (ii) Transposition (iii) Informing consumers (iv) Revision xiii xv 1 7 9 12 13 16 19 20 21 22 23 23 23 24 24 24 25 25 vi European Fair Trading Law MINIMUM/MAXIMUM HARMONISATION AND THE INTERNAL MARKET CLAUSE Hans-W Micklitz a Introduction to the Debate b The Legal Background to Maximum Harmonisation and the Internal Market Clause (i) Background of the minimum–maximum debate (ii) Background of the country of origin principle (iii) Background for combining maximum harmonisation and the country of origin principle c Maximum Harmonisation in the Directive (i) The principle and its justification (ii) The transition period, Articles 3(5) and (6) (iii) Uncertainties in minimum–maximum harmonisation d The Relationship Between the Directive and the Proposed Regulation on Sales Promotions e Maximum Harmonisation and the Internal Market Clause in the Directive (i) The internal market clause in the legislative process (ii) The possible scenario of conflict (iii) The correct interpretation of the internal market clause in the Directive (iii) Article in the harmonised field of the Directive (iv) Article in the non-harmonised area of the Directive (v) Article and the deferring effect of full harmonisation SCOPE OF THE DIRECTIVE Thomas Wilhelmsson a Introduction b Collective Protection c Commercial Practices (i) Content of the definition (ii) Before and after the transaction d Harming Consumers’ Economic Interests (i) Economic interests (ii) Taste and decency (iii) Protection of other societal interests e Business-to-Consumer Practices (i) Introduction (ii) Definition of consumer (iii) Definition of trader (iv) Business-to-consumer practice 27 27 28 28 30 32 35 35 36 39 39 40 40 42 43 44 47 47 49 49 51 53 53 56 58 58 59 62 63 63 64 67 69 Contents vii f Some Explicit Additional Delimitations (i) Introduction (ii) Intellectual property rights (iii) Contract law (iv) Health and safety (v) Other Community rules (vi) National rules based on minimum clause (vii) Jurisdiction (viii) Regulated professions (ix) Financial services and immovable property (x) Precious metal 70 70 71 71 74 76 77 77 78 80 80 THE GENERAL CLAUSE ON UNFAIR PRACTICES Hans-W Micklitz 83 a Fair Trading de lege lata – References in Secondary Law b The Structure of the General Clause in the Unfair Commercial Practices Directive (i) Threefold structure (ii) Consequences and questions arising from the threefold structure c The Concept of Fairness (i) The challenge – fairness, national morals, taste and decency, national cultures – how are they interrelated? (ii) European fairness as an autonomous concept (iii) European fairness and national morals (iv) Taste and decency (v) National cultures d Requirements of Professional Diligence (i) Criticism of the conceptual approach (ii) National, European and international professional diligence (iii) The significance of professional diligence for misleading and aggressive commercial practices (iv) Consequences arising from the lack of Europeanised professional diligence e Material Distortion of the Economic Behaviour of the Consumer (i) Economic behaviour, informed and transactional decisions (ii) The objective side of the distortion: the autonomy of the consumer (iii) The subjective side of the distortion – intent and fault (iv) The relevance of the materiality criterion (v) The practical significance of the materiality threshold (vi) Actual or potential distortion (vii) Causality between the distortion and the process of taking the decision 83 84 85 86 86 86 88 91 95 96 97 98 100 101 102 102 103 104 105 106 107 109 110 viii European Fair Trading Law f The ‘Average Consumer’ and Particularly Vulnerable Groups (i) The average consumer as a standard model (ii) Particularly vulnerable consumer groups as a special provision (iii) Children, the elderly, disabled and credulous people (iv) The purpose of the commercial practices (v) The abolition of statistical evidence? g Language and Fairness h Relationship of the General Clause and the Special Provisions (i) Concept and practical significance (ii) The general clause as safety net (iii) The system of Annex I MISLEADING PRACTICES Thomas Wilhelmsson a Introduction b Misleading Actions (i) Definition (ii) The untruthfulness/deceptiveness condition (iii) The average consumer test (iv) The materiality condition (v) What information? (vi) Imitative marketing (vii) Non-compliance with codes of conduct c Misleading Omissions (i) An indirect duty to inform (ii) Omission and withholding of information (iii) The consumers’ informational needs test (iv) Material information in invitation to purchase (v) Established information requirements d Practices That Are Always Regarded as Unfair (i) Nature of the Annex (ii) The cases e Understanding Misleading Practices AGGRESSIVE COMMERCIAL PRACTICES Geraint Howells a Introduction (i) Beyond misleading practice (ii) How far beyond misleading practices? (iii) Aggressive practices – elements of an underdeveloped concept b Aggressive Practices (i) Harassment, coercion, or undue influence 111 111 112 113 115 116 117 117 117 119 121 123 123 125 125 127 131 136 138 145 146 147 147 150 152 154 157 158 158 160 164 167 167 167 168 170 171 172 Contents c d e f g h (ii) Impairment of the consumer’s freedom of choice or conduct (iii) Taking a transactional decision that he would not otherwise have taken (iv) In its factual context (v) Legal and illegal means Harassment (i) Protection of private sphere (ii) Relevant factors (iii) Objective or subjective test (iv) General harassment laws (v) Particular practices Coercion (i) Relationship with other concepts (ii) Physical and psychological (iii) Relevant factors (iv) Borderline with legitimate pressure Undue Influence (i) The definition (ii) Physical force (iii) Position of power (iv) Exploitation of position of power Relevant Factors Practices Considered Aggressive in all Circumstances Towards an Understanding of Aggressive Practices CODES OF CONDUCT Geraint Howells a b c d e f Codes, Soft Law, Self-Regulation and Co-Regulation A ‘Win-Win-Win’ Solution Varying Attitudes to Codes Support for Codes in EU Policy Codes in EU Legal Instruments Code of Conduct – the Definition (i) Agreement or set of rules (ii) Trader behaviour (iii) Commercial practice or business sectors (iv) Trader undertaking g Code Owner h Non-Compliance With a Code as Misleading Conduct (i) Not aspirational (ii) Firm (iii) Verifiable (iv) Indication in a commercial practice ix 174 177 178 178 178 178 179 179 180 181 184 184 184 185 185 187 187 187 187 189 190 192 193 195 195 196 197 199 200 202 203 205 205 206 206 206 208 208 209 210 Appendix 281 ‘1 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (OJ L 149, 11.6.2005, p 22).’ In the Annex to Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of the consumer protection law (the Regulation on consumer protection cooperation)(12) the following point shall be added: ‘16 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (OJ L 149, 11.6.2005, p 22).’ Article 17 Information Member States shall take appropriate measures to inform consumers of the national law transposing this Directive and shall, where appropriate, encourage traders and code owners to inform consumers of their codes of conduct Article 18 Review By 12 June 2011 the Commission shall submit to the European Parliament and the Council a comprehensive report on the application of this Directive, in particular of Articles 3(9) and and Annex I, on the scope for further harmonisation and simplification of Community law relating to consumer protection, and, having regard to Article 3(5), on any measures that need to be taken at Community level to ensure that appropriate levels of consumer protection are maintained The report shall be accompanied, if necessary, by a proposal to revise this Directive or other relevant parts of Community law The European Parliament and the Council shall endeavour to act, in accordance with the Treaty, within two years of the presentation by the Commission of any proposal submitted under paragraph Article 19 Transposition Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 12 June 2007 They shall 12 OJ L 364, 9.12.2004, p 282 European Fair Trading Law forthwith inform the Commission thereof and inform the Commission of any subsequent amendments without delay They shall apply those measures by 12 December 2007 When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication Member States shall determine how such reference is to be made Article 20 Entry into force This Directive shall enter into force on the day following its publication in the Official Journal of the European Union Article 21 Addressees This Directive is addressed to the Member States Done at Strasbourg, 11 May 2005 For the European Parliament The President J P BORRELL FONTELLES For the Council The President N SCHMIT Appendix 283 ANNEX I COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR Misleading commercial practices Claiming to be a signatory to a code of conduct when the trader is not Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation Claiming that a code of conduct has an endorsement from a public or other body which it does not have Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising) Making an invitation to purchase products at a specified price and then: (a) refusing to show the advertised item to consumers; or (b) refusing to take orders for it or deliver it within a reasonable time; or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch) Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice 284 European Fair Trading Law Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction Stating or otherwise creating the impression that a product can legally be sold when it cannot 10 Presenting rights given to consumers in law as a distinctive feature of the trader’s offer 11 Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) This is without prejudice to Council Directive 89/552/EEC(13) 12 Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product 13 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 14 Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products 15 Claiming that the trader is about to cease trading or move premises when he is not 16 Claiming that products are able to facilitate winning in games of chance 17 Falsely claiming that a product is able to cure illnesses, dysfunction or malformations 13 Council Directive 89/552/EEC of October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p 23) Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p 60) Appendix 285 18 Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions 19 Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent 20 Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item 21 Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not 22 Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer 23 Creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold Aggressive commercial practices 24 Creating the impression that the consumer cannot leave the premises until a contract is formed 25 Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation 26 Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC(14) and 2002/58/EC 27 Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the 14 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p 31) Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p 1) 286 European Fair Trading Law claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights 28 Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting 29 Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling) 30 Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy 31 Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either: — there is no prize or other equivalent benefit, or — taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost Appendix 287 ANNEX II COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR ADVERTISING AND COMMERCIAL COMMUNICATION Articles and of Directive 97/7/EC Article of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours(15) Article 3(3) of Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of a right to use immovable properties on a timeshare basis(16) Article 3(4) of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers(17) Articles 86 to 100 of Directive 2001/83/EC of the European Parliament and of the Council of November 2001 on the Community code relating to medicinal products for human use(18) Articles and of Directive 2000/31/EC of the European Parliament and of the Council of June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)(19) Article 1(d) of Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit(20) Articles and of Directive 2002/65/EC 15 OJ L 158, 23.6.1990, p 59 16 OJ L 280, 29.10.1994, p 83 17 OJ L 80, 18.3.1998, p 27 18 OJ L 311, 28.11.2001, p 67 Directive as last amended by Directive 2004/27/EC (OJ L 136, 30.4.2004, p 34) 19 OJ L 178, 17.7.2000, p 20 OJ L 101, 1.4.1998, p 17 288 European Fair Trading Law Article 1(9) of Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) with a view to regulating management companies and simplified prospectuses (21) Articles 12 and 13 of Directive 2002/92/EC of the European Parliament and of the Council of December 2002 on insurance mediation(22) Article 36 of Directive 2002/83/EC of the European Parliament and of the Council of November 2002 concerning life assurance(23) Article 19 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(24) Articles 31 and 43 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance(25) (third non-life insurance Directive) Articles 5, and of Directive 2003/71/EC of the European Parliament and of the Council of November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading(26) 21 OJ L 41, 13.2.2002, p 20 22 OJ L 9, 15.1.2003, p 23 OJ L 345, 19.12.2002, p Directive as amended by Council Directive 2004/66/EC (OJ L 168, 1.5.2004, p 35) 24 OJ L 145, 30.4.2004, p 25 OJ L 228, 11.8.1992, p Directive as last amended by Directive 2002/87/EC of the European Parliament and of the Council (OJ L 35, 11.2.2003, p 1) 26 OJ L 345, 31.12.2003, p 64 Index advertising codes of conduct 198 Community law on 287–8 comparative 16–17 Internet 30–1 language in 117 misleading 13–14 offensive 91–3 unfair 14, 85, 108 to vulnerable groups 115–16 Advertising Code, International Chamber of Commerce 8, 101 aggressive commercial practices 167–94 conditions for 171–8 examples 192–3 meaning 168, 173 objective standards 169–70 physical force 173–4 relevant factors 190–2 translation of terms 172 underdevelopment 170–1 understanding of 193–4 see also coercion; harassment; undue influence Austria, consumer protection law autonomy, consumer 104–5 ‘average consumer’ 1, European Court of Justice 111, 112, 125, 131 foreign language issue 135 meaning 20–1 misleading actions 131–6, 138 objections to 111 as standard model 111–12, 174–5 see also vulnerable consumer groups Belgium, consumer protection law Benetton advertising 60, 87, 91, 93, 94 bonos mores 4, 6, 53, 87, 90 British Institute of International and Comparative Law business-to-business, fair trading law 2, 19 business-to-consumer contracts 19, 53–4 practices 1, 53–4, 63–70 cases Alpine Investments BV v Minister van Financien 11 Buet v Ministère Public 28, 34 Cofidis v Fredout 114 Criminal proceedings against Bernard Keck and Daniel Mithouard 9, 10, 12 Criminal proceedings against X (‘Nissan’) 17, 136n49 De Agostini and TV-Shop 31–2, 42 Doc Morris 28, 46 Estée Lauder Cosmetics GmbH v Lancaster Group GmbH 16, 18–19 Fratelli Graffione SNC v Ditta Fransa 19 Freiburger Kommunalbauten 89 Germany v European Parliament and Council (‘Tobacco Advertising’) 13, 27, 32, 33, 34, 35, 42, 45–6 Gillette 100 Gut Springenheide GmbH 18 Heininger v Bayerische Hypo- und Vereinsbank 114 Lifting-Crème 96 Océano Grupo Editorial and Salvat Editores v Sánchez Alcón Prades 114 Omega v Oberbürgermeisterin der Stadt Bonn 96 Oosthoek’s Uitgeversmaatschappij 11 Pall/Dallhausen 108 Pippig Augenoptik GmbH v Hartlauer Handelsgesellschaft mbH 16, 29 Procureur du Roi v Benoit and Gustave Dassonville R Buet and Educational Business Services (EBS) v Ministère Public 11 Rewe-Zentrale AG v Buddesmonopolvervaltung fur 290 European Fair Trading Law Branntwein (Cassis de Dijon) 11, 30, 45 Toshiba Europe GmbH v Katun Germany GmbH 16 Verband Sozialer Wettbewerb eV v Clinique Laboratoires 19 Cassis de Dijon case 11, 30, 45 Civil Codes, fair trading law 3–4 CLAB databank 38 co-regulation 99, 100–1, 195–6, 199 code owner, codes of conduct 206 codes of conduct 8, 23, 99, 100, 146–7, 195–215, 254, 275 advertising 198 Article 10 UCPD 211, 254, 275 attitudes to 197–9 code owner 206 definition 202–6 Electronic Commerce Directive 201 encouragement of reliance on 211–12 in EU legal instruments 200–2 in EU policy 199, 215 and fairness standards 212–15 German view 197 limitations of 197 meaning 195 non-compliance, as misleading conduct 206–10, 213 as soft law 195 UK view 197 and unfair commercial practices 211 as ‘win-win-win’ solution 196–7 coercion 184–7 borderline cases 185–7 meaning 184 promotion, distinction 186 psychological 184 relevant factors 185 cold calling 11, 28, 39, 121, 178 collective legal address 219, 222–8 Article 11 UCPD 223 Consumer Injunctions Directive 225–6 Distance Selling Directive 225 Distance Selling of Financial Services Directive 225 EC Treaty Articles 226–7 enforcement bodies, minimum requirements 227–8 enforcement mechanisms 222 Misleading Advertising Directive 223–4 transborder application 232–7 Unfair Contract Terms Directive 224–5 commercial practices definition 53–6 self-regulation see also aggressive commercial practices; unfair commercial practices Community acquis, consumer protection 9–19 Comparative Advertising Directive 83 harmonisation 29 see also Misleading Advertising Directive consumer autonomy 104–5 confidence 244–7 definition 64–7 expectations 35–6 individual legal redress 221–2 information 123, 150–8 consumer protection law 123 protection level 247–50 typology 5–6 see also ‘average consumer’; vulnerable consumer groups consumer associations 99, 228 Consumer Credit Directive 65, 76 consumer credit proposals, European Commission 30 consumer economic behaviour distortion 2, 102–10, 174–7 actual/potential 109–10 materiality criterion 106–9 Consumer Injunctions Directive 7, 220 collective legal address 225–6 transborder enforcement 232, 233–4, 236 consumer protection Green Book 237 law consumer information 123 pre-UCPD 3–4, 9–19 level 247–50 Consumer Protection Cooperation Regulation 220, 237–40 administrative cooperation 238–9 Commission role 239 Index competent authority 238 enforcement, relevance 239–40 objectives 238 scope 238 Consumer Sales Directive 115, 144 contract law 22, 28, 30, 71–3 country of destination principle 30 country of origin principle 46, 251 Electronic Commerce Directive 30, 32 and maximum harmonisation 32–3, 42 and minimum harmonisation 31, 43, 46 ‘Television without Frontiers’ Directive 30, 31 credulity 14, 61, 112, 113, 114, 266, 271 damages 6, 7, 23, 52, 53, 72, 92, 230, 248, 252, 256n47 Dassonville case Data Protection Directives 15 decency see taste/decency issues Denmark, consumer protection law Directives, based on minimum harmonisation 22, 25, 29, 31, 37, 41, 77, 179, 219, 235, 255–6, 270 Distance Selling Directive 15, 28, 29, 46, 83 collective legal address 225 and minimum harmonisation 46 Distance Selling of Financial Services Directive 15, 30, 80, 83 collective legal address 225 Doorstep Selling Directive 15, 28, 29, 65, 67n75 due diligence defence 6, 98 e-commerce, self-regulation 198–9, 201 EC Treaty, Articles 10: 226 11: 226 28: 9–10, 12, 16, 45 30: 11, 30, 45 95: 13, 34, 46 153: 12–13, 227, 228 234: 42, 43, 220 Electronic Commerce Directive 15, 40, 46, 76, 83 codes of conduct 201 country of origin principle 30, 32 enforcement 23, 51, 217–20 291 EUROPEAN COURT OF JUSTICE rulings 217 Enforcement Regulation 220 responsibility for 218 UCPD articles 217–18 uncertainties 218–19 see also injunctions; sanctions; transborder enforcement environment protection 62–3 European Advertising Standards Alliance (EASA) 35 European Commission consumer credit proposals 30 Consumer Policy Strategy (2002–2006) 23, 30, 199 Follow-up Consumer Law 19, 23, 52, 167–8, 208 Green Paper Consumer Protection 19, 20, 55, 56, 167, 199, 200 Lisbon White Paper on European Governance 199 European Court of Justice 1, 5, 9, 11, 12, 15, 27, 28, 29, 31, 32–3, 46, 54, 67, 84, 85, 89, 93, 96–7, 100, 113, 116–17 Article 234 rulings 42, 43, 220 ‘average consumer’ concept 111, 112, 125, 131 enforcement rulings 217, 220 and minimum harmonisation 32–3 fair trading, contextual meaning 83–4 VIEW study 2, fair trading law business-to-business Civil Codes 3–4 civil/criminal law elements 7, Community tradition 2–8 consumer protection law and internal market national 2, 11–12 studies 1–2 see also Unfair Commercial Practices Directive fairness 86–97 as autonomous concept 88–90 and national morals 91–5 national variations 87 translation issues 90 Finland, consumer protection law 292 European Fair Trading Law General Product Safety Directive 74 Germany consumer protection law fair trading law Greece, consumer protection law Jurisdiction and the Recognition of Enforcement of Judgments, Regulation 237 harassment 178–83 general laws 180–1 meaning 178 objective/subjective test 179–80 particular practices 181–3 relevant factors 179 harmonisation see maximum harmonisation; minimum harmonisation; negative harmonisation health and safety 33–4, 74–5 misleading health claims 74 Henning-Bodewig, F 89 home-party selling 68 Hoover promotion, UK 186 Howells, Geraint 1–26, 167–94, 195–215 language in advertising 117 ‘average consumer’, knowledge 135 misleading omissions 150–1 Law Applicable to Non-Contractual Obligations (Rome II) 236 legal redress, procedures/remedies 228–31 see also collective legal redress; enforcement; individual legal redress Lettl, T 173, 182 immoveable property, and minimum harmonisation 80 individual legal redress 219, 220–2 competitors 221 consumer 221–2 information element, Misleading Advertising Directive 123 information provision, unfair commercial practices 16–19 informed decisions 103 injunctions 7, 23, 73, 126, 264 see also Consumer Injunctions Directive intellectual property rights 2, 70, 71, 98, 143, 263, 272 internal market, and fair trading law and maximum harmonization 27, 28, 40–7, 270 International Chamber of Commerce, Advertising Code 8, 101, 198 International Consumer Protection Enforcement Network 237 International Marketing Supervision Network 237 Internet, advertising 30–1 Italy, Code Civile Janssen, A 90 Köhler, H 173, 182 Männeken Pis advertisement 91, 93, 97 maximum harmonisation 21, 25, 35–40, 50–1, 241–2, 254–5, 256 and country of origin principle 32–3, 42 and internal market clause 27, 28, 40–7, 270 legal background 28–34 vs minimum harmonisation 34, 36, 242n2, 247 Micklitz, H.-W 27–47, 83–122, 170, 217–40 minimum harmonisation in consumer law 28 and country of origin principle 31, 43, 46 Directives based on 22, 25, 29, 31, 37, 41, 77, 179, 219, 235, 255–6, 270 and Distance Selling Directive 46 and EUROPEAN COURT OF JUSTICE 32–3 and immoveable property 80 vs maximum harmonisation 34, 36, 242n2, 247 misleading actions 125–47 ‘average consumer’ test 131–6, 138 codes of conduct, non-compliance 146–7 definition 125–7 imitative marketing 145–6 information issues 138–44 materiality condition 136–8 Index untruthfulness/deception condition 127–31 Misleading Advertising Directive 13–14, 29, 35, 64, 112, 125, 138, 164, 211, 222 collective legal address 223–4 information element 123 purpose 83–4 self-regulation 202 see also Comparative Advertising Directive misleading omissions 16, 147–58 duty to inform 147–9 information issues 150–8 language issues 150–1 misleading practices 123–65 understanding 164–5 see also unfair commercial practices National Consumer Council, UK 195 negative harmonisation 9–11, 12 Netherlands consumer protection law self-regulation 198 Nissan case 17, 136n49 Office of Fair Trading, UK 7, 8, 197, 212, 214 Ombudsmen, Nordic 7, 8, 198 Paris Convention 98–9 passing off actions Price Indications Directive 12–13 Privacy and Electronic Communications Directive 181 product, definition 66 Product Safety Directive 115 product safety legislation, and UCPD 74–5 professional diligence 97–102, 172, 214 criticism of concept 98–100, 101–2 national/international requirements 100–1 promotion, coercion, distinction 186 public bodies 7, 68, 222, 227–8 pyramid selling 22, 65n66, 161, 163n151, 167 Race Discrimination Directive 15n56 Sales Promotion Regulation 20, 167 293 and UCPD 39–40, 119 sanctions 7–8, 51, 52, 218, 230 Schricker, G 89 Schulte-Nölke, Hans 2, 26, 169, 172, 184, 185, 198 Schulze, Reiner 2, 90, 169, 172, 184, 185, 198 self-regulation 8, 195 e-commerce 198–9, 201 Misleading Advertising Directive 202 Netherlands 198 Sex Discrimination Directive 15, 60n41 soft law codes of conduct as 195 meaning 195 see also codes of conduct strict liability 6–7 Sunday trading Sweden, consumer protection law taste/decency issues 2, 59–62, 87, 88, 95–6, 183 ‘Television without Frontiers’ Directive 15, 40, 46, 61, 76, 83, 113 country of origin principle 30, 31 transmission-state principle 31 Teubner, Gunther 197 Tobacco Advertising case 13, 27, 32, 33, 34, 35, 42, 45–6 Tobacco Advertising Directive 33, 46 trade associations 8, 197, 199, 204, 213, 214, 215, 226, 228, 237 Trade Marks Directive 83, 84 trademarks 2, 17, 29, 71, 84, 100, 146 trader, definition 67–8 transactional decision 177 meaning 103 transborder application collective legal address 232–7 Consumer Injunctions Directive 232 transborder enforcement 219–20 applicable law 235–6 Consumer Injunctions Directive 232, 233–4, 236 international jurisdiction 233 judgment execution 236–7 legitimate interest to take action 234–5 problems 232 right to take action 234 294 European Fair Trading Law UK Hoover promotion 186 National Consumer Council 195 Office of Fair Trading 7, 8, 197, 212, 214 Ulmer, Eugen 2, 14, 89 undue influence 187–90 definition 187 physical force 187 position of power 187–90 unfair commercial practices 22, 85 and codes of conduct 211 general clauses 4–5 information provision 16–19 insurance claim documents 73 list 158–64, 283–6 interpretations 121–2 legal status 118–19 see also misleading practices Unfair Commercial Practices Directive (UCPD) adoption application, variations 252–3 Articles 1, purpose 49, 51, 69, 268 2, definitions 78, 97, 102, 202, 268–9 3, scope 36–8, 39, 70, 76, 77, 78, 269–70 internal market 27, 28, 40–7, 270 5, unfair commercial practices 35, 42, 83, 85, 86, 89, 90, 94, 97, 102, 103, 113, 270–1 6, misleading actions 139–46, 206–10, 271–3 7, misleading omissions 147, 149, 150, 273–4 8, aggressive commercial practices 168, 171, 173–4, 274 9, harassment/coercion/undue influence 171–2, 179, 190–1, 274 10, codes of conduct 211, 254, 275 11, enforcement 51, 77, 218, 223, 275–7 12, courts etc, claims 277 13, penalties 51, 52, 218, 277 14, amendments, to 84/450/EEC 277–80 15, amendments, to 97/7/EC & 2002/65/EC 280 16, amendments to 98/27/EC & Regulation 2006/2004 280–1 17, information 25, 281 18, review 25, 281 19, transposition 24–5, 36, 281–2 20, entry into force 282 21, addresses 282 assessment of 242–4 delimitations 19, 59, 70–81 contract law 71-3 financial services 80 health and safety 33-4, 74–5 immoveable property 80 individual claims 52 intellectual property rights 71 national rules courts’ jurisdiction 77 temporary limitation 77 other Community rules 76–7 precious metal 80–1 regulated professions 78–9 entry into force 24, 282 Explanatory Memorandum 35, 41, 72, 77, 99, 101, 117–18, 121, 124, 129, 141, 168, 172, 185 General Clause 83–122 ‘average consumer’ 111–12 consumer economic behaviour, distortion 102–10 fair trading 83–4 fairness concept 86–97 general legal framework 85 language, in advertising 117 national cultures 96–7 professional diligence 97–102 as safety net 119–21 and special provisions 117–22 statistical evidence, rejection of 116–17 structure 84–6 taste/decency issues 95–6 transactional decisions 103 unfair advertising 85 vulnerable groups 11, 112–16 impact assessment 35–6 importance 241 informing consumers 25, 123 Index internal market clause 27, 28, 40–7, 270 legal certainty 254–6 and national provisions 37 preamble 261–8 preparation 19–23 and product safety legislation 74–5 purpose 51, 242–4 revision 25–6 and Sales Promotion Regulation 39–40, 119 scope 2–3, 49–81, 241 business-to-consumer practices 53–4, 63–70 class actions 53 collective protection 51–3 commercial practices, definition 53–6 consumers’ economic interests, harming 58–63 definition of 50 environmental protection 62–3 language issues 62 public bodies 68 taste/decency issues 59–62, 183 295 trader, definition 67–8 transactions, before & after 56–8 summary 23–4 text 261–82 traders’ costs & risks 250–3 transition period 36–8 transposition 24–5 unfair commercial practices 22, 73, 85, 121–2, 158–64, 283–6 see also Article Unfair Contract Terms Directive 65, 72 collective legal address 224–5 unfairness standard 20–1 VIEW, study on fair trading 2, vulnerable consumer groups 111, 112–16 advertising aimed at 115–16 children 113–14 disabled persons 114 Wilhelmsson, Thomas 49–81, 123–65, 241-59 Zagorka advertisement 91, 92, 93