The Contributions Gathered in This Collection
Having briefly introduced the three themes that are woven into the fabric of the contributions to this book, we can now summarize the various chapters and see how they interrelate. The book is roughly divided into four parts.
Implementation, Approximation and Harmonization
Part I deals with issues of implementation, approximation and harmonization. As noted earlier, the maximum harmonization nature of the UCP Directive and the exceptions to its scope raise particular issues of convergence and divergence of national legal systems. For instance, in what areas does the UCP Directive leave room for maneuvering? In what ways does the UCP Directive cause frictions with domestic law? Does it conflict with other areas of EU and domestic consumer law?
In their contribution 'UK Implementation of the Unfair Commercial Practices Directive', Marios Koutsias and Chris Willett take some of these issues as a starting point to discuss the UK experience with the UCP Directive. Their analysis shows that while the traditional UK approach was one of criminal enforcement, the developments surrounding the implementation of the UCP Directive have prompted a blending of this traditional approach with a seemingly more European enforcement approach which stresses preventive techniques. In other respects, the authors argue, the process of 'Europeanization' through the UCP Directive has started to influence fairness concepts in the domestic regulatory landscape and perhaps even in private law. As concerns the substantive reach of the Directive, Koutsias and Willett also predict that the regulation of commercial practices in the financial services industry will largely remain outside the maximum harmonization principle and hence within the national legislative realm. The 'home grown' financial services regime is likely to remain dominant, they convincingly argue.
Bert Keirsbilck devotes his contribution 'Pre-emption of National Prohibitions of Sale Below Cost: Some Reflections on EU Law Between Past and Future' to the troublesome pre-emptive effect of the maximum harmonization principle underlying the Directive. As mentioned earlier, the fact that the Directive moves well into border territories of generic market regulation raises numerous issues of demarcation. For instance, national prohibitions of sales below cost obviously affect consumers but are usually also aimed - or even primarily or exclusively aimed - at some sort of protected competition. To what extent do such market design rules clash with the UCP Directive? Keirsbilck focuses on the viability of national prohibitions of sales below cost in light of European law. He argues that the maximum harmonization principle underlying the Directive forbids national prohibitions of business-to-consumer sales below cost in so far as such prohibitions pursue consumer protection objectives.
In her contribution 'The Blacklist of Unfair Commercial Practices: The Black Sheep, Red Herring or White Elephant of the Unfair Commercial Practices Directive?', Monika Namyslowska focuses specifically on the Black List in Annex I to the UCP Directive, which bans 31 particular commercial practices. Although the introduction of a Black List was aimed at increasing legal certainty and consumer confidence, one may wonder whether this aim has been achieved. Some of the prohibitions encapsulated in the List are difficult to apply; others are in fact rather vague and open-textured creating uncertainty instead. Moreover, given the maximum harmonization principle the Black Lists pre-empts any legislative attempts at the Member State level to introduce, amend or extend the listed practices. Namyslowska argues that the various national methods of implementation of Annex I and the dissimilar notions and legal definitions at the Member State level add to the complexity of the UCP Directive regime, render uniform interpretation difficult and may even hinder effective enforcement.