Unit B2 – Consumer contract and
marketing law
THE UNFAIR COMMERCIAL
PRACTICES DIRECTIVE
Ankara, 7 December 2009
Karine Maillard
Consumer contract and marketing law
1
Why EU legislation for consumer
protection ?
Achievement of the internal market : to move
forward, consumers and businesses have to
engage in cross-border trade
First step : EU directives on consumer
protection, based on minimum harmonisation
But still legal fragmentation across the EU
2
Why EU legislation for consumer
protection ?
Stimulate consumers’ confidence in the internal
market and in cross-border transactions
Provide business
environment
with
better
Legal
certainty,
transparency,
enforcement in cross-border cases
regulatory
effective
Consumers and businesses have to take
advantage of the European internal market.
3
The Directive on unfair
commercial practices

Simplification and clear rights for consumers

Better protection (consumers more confident)

More
predictable
environment
for
businesses
operating cross-border
B2 - Unfair commercial practices
4
A broad scope

B2C, before, during and after
transaction in relation to a product
a
commercial

Protection of consumer’s economic interest

Does not regulate:
 non-economic interests (health and safety /taste
and decency)
 contract law
 authorization regimes, deontological rules
 B2B, business’ economic interests (competition)
5
NEW APPROACH
Many consumer Directives deal with:



Specific products (e.g. timeshare, package
travel, consumer credit)
Specific sales methods (e.g. distance selling,
doorstep selling)
And are based on minimum harmonisation
UCP:


Horizontal Directive
Maximum Harmonisation
6
MAXIMUM HARMONISATION

One set of rules for all unfair business-to-consumers
commercial practices across the EU

MS cannot retains or introduce stricter rules to
regulate unfair commercial practices on consumer
protection grounds

Except:
 national rules on financial services and immovable
property
 temporary derogation
7
Internal market clause
“Member States shall neither restrict
the freedom to provide services nor
restrict the free movement of goods
for reasons falling within the field
approximated by this Directive”
8
STRUCTURE
General prohibition of unfair commercial
practices (general clause)
Misleading and agressive practices
”Black List”, 31 commercial practices
banned upfront
9
Structure in practice
… fall in the black list of
commercial practices (Annex I)?
unfair
yes
…constitute a misleading (Art 6 and 7) or
an aggressive practice (Art 8 and 9)?
yes
no
no
… infringe professional diligence and
materially distorts the economic behaviour
of the average consumer (Art 5(1))?
yes
Practice is prohibited
Does the commercial practice:
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THE GENERAL CLAUSE
GENERAL PROHIBITION
 Contrary to the requirements of «professional diligence»
 Likely to distort the behaviour of the «Average consumer»
 “Future proof”
 “Vulnerable consumers” : practices only distorting a clearly
identifiable group of consumers who are particularly vulnerable (age,
credulity, mental or physical infirmity) – in a way that a trader could
reasonably expect to foresee
11
Misleading practices

Misleading actions : deceiving
commercial communication

Misleading
omissions
:
material information needed
by the consumer
12
Misleading practices – Invitation
to purchase
What is an invitation to purchase ?
What are the trader’s obligations ?
Flexibility: « if not apparent from
the context »; main characteristics
« to an extent appropriate to the
medium and the product »
13
AGRESSIVE PRACTICES
new at EU level
freedom of choice significantly impaired
harassment
coercion, including physical force
undue influence
14
“BLACK LIST”
Unfair in all circumstances
Invitation to purchase at specified price (trader not able to supply – bait and
switch)
Airline tickets –non availability of tickets at the promoted price
Big stores or commercial centres which advertise illusory promotions just to
attract customers on their premises
Falsely stating that a product is available for a limited period of time
“Only for today” – in order to deprive the consumer of sufficient opportunity or
time to make an informed choice
False free offers
Falsely claiming that a product is able to cure illnesses, dysfunction or
malformation
Direct exhortation to children to buy or persuade others to buy
“Pester power”
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UCP Timeline
Adopted in May 2005
Transposition deadline 12 June 2007
Enforcement deadline 12 December
2007
26 Member States have transposed
(+NO, IS), 1 is late
Literal/verbatim transposition in a
significant number of countries
16
Transposition Cooperation
 Working group – discussion days (peer
pressure)
 Contacts with stakeholders, with
complainants
 Pre-checking drafts and proposals (in
national languages)
 Bilateral meetings with Member States
17
Thank you for your attention,
and visit our website :
http://ec.europa.eu/consumers/rights
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Unfair Commercial Practices