Part II of this volume deals with vulnerability issues. The UCP Directive is slightly ambiguous as concerns vulnerability due to age, mental or physical condition. On the one hand, the Directive assumes consumers to be 'reasonably well informed and reasonably observant and circumspect'. Therefore, the 'model consumer' is considered to be confident and proactive in gathering and processing information before making transactional decisions. On the other hand, however, the Directive seems to offer specific protection to old, young, disabled and challenged consumers. Obviously, the question is what makes these groups vulnerable in connection with commercial practices. And are they the only ones prone to succumb to certain unfair practices? Given the human model of 'homo heuristicus' developed by behavioral economics, one could even argue that all consumers are vulnerable individuals.
Against this background Marine Friant-Perrot discusses 'The Vulnerable Consumer in the UCPD and Other Provisions of EU Law'. She argues that the concept of vulnerability is multi-facetted and in fact covers different realities. Vulnerability may even consist of the lack of opportunities to access certain -essential or non-essential - services and goods. As Friant-Perrot shows, consumer vulnerability is widespread and as such needs to be taken into account when judging both the unfairness of commercial practices and the hazardous nature or suitability of certain goods and services.
The UCP Directive and Other Regimes
In Part III, the interaction between the UCP Directive regime with other forms of regulation of traders' behaviour is discussed. How does the UCP Directive relate to other EU rules of consumer protection? Does it complement or interfere with other regimes - be they legislative, regulatory or self-regulatory?
In her contribution, 'Can the UCP Directive Really Be a Vector of Legal Certainty?', Amandine Garde focuses on the extent to which the objective of legal certainty, which is strongly enshrined in the UCP Directive, can realistically be attained. She argues that if the UCP Directive may inject a degree of certainty into the EU regulatory framework, largely through its Annex of black-listed practices, the use of extremely broad, loosely defined concepts in the Directive's general clauses is unlikely to promote the level-playing field promised by the Commission to traders, consumers and Member States alike. The second part of the contribution focuses more specifically on the uneasy relationship existing between the UCP Directive and other provisions of EU law. In particular, it evaluates how the horizontal provisions of the UCP Directive relate to more specific provisions intended to refine the notions of misleading and unfair practices in specific sectors of the EU economy or in relation to specific business-to-consumer commercial practices. Overall, this contribution concludes that fine lines will have to be drawn to determine which practices fall within and which practices fall outside the scope of the UCP Directive and that difficult questions remain regarding the extent to which Member States still benefit, notwithstanding the maximum harmonization clause contained in the Directive, from a margin of autonomy to protect consumers from unfair commercial practices on their territories.
The contribution 'The Interaction between the Unfair Commercial Practices Directive and Self-Regulation: The Case of Codes of Conduct' by Charlotte Pavillon offers an in-depth analysis of the relationship between the UCP Directive and self-regulatory quality enhancement through voluntary codes of conduct. Pavillon shows that although the Directive seems to encourage the use of such codes, in practice such codes seldom extend or build on the Directive's general fairness clause and neither do they advance the Directive's pan-European harmonization aspirations. Pavillon therefore argues that ideally the Directive is to be amended so as to strengthen the contribution of codes of conduct to the standards laid down in the Directive while preserving the right balance between consumers' and traders' interests.
In his contribution 'A Common Approach to the Enforcement of Unfair Commercial Practices and Unfair Contract Terms', Hans Micklitz proposes that a more coordinated approach is taken in relation to unfair commercial practices and unfair contract terms. EU Member States tend to consider these two phenomena separate and distinct. Traditionally, the framework for tackling unfair commercial practices is primarily geared towards the regulation of markets and competition whereas unfair terms legislation is mostly concerned with substantive standards of protection in contract law. However, Micklitz shows that the worlds of unfair commercial practices and unfair contract terms are not as far apart as one might think and that in line with recent trends in ECJ case law a convergent approach to both fields of law is appropriate. If one looks at the UCP Directive, however, one will notice its wide scope. Thus, the assessment of the fairness of contract terms may quickly turn out to overlap with the UCP regime. Using unfair terms may mystify the consumer's legal position and may thus become misleading as a practice rather than as a term.
Finally, in Part IV various issues of enforcement come to the fore. In principle, The UCP Directive leaves it to Member States to decide on the enforcement architecture. The result is a plethora of instruments across the European Union, each with their advantages and drawbacks. What lessons can be learned from the various choices made by Member States? Recently, the European Commission communicated its first report on the application of the Directive. The gist of the report is that the UCP Directive itself is adequate as it stands but that enforcement efforts need to be intensified. This is all the more reason to delve deeper into the enforcement issues.
Franziska Weber writes on 'Law and Economics of Enforcing Misleading Advertising Laws: Incentives of Bona and Mala Fide Traders Assessed'. As the title suggests, this is a law and economics analysis of misleading advertising. The harm caused to society by such unfair commercial practices is exacerbated by the fact that enforcement efforts are non-existent, slow or ineffective. Weber argues that the law should try to distinguish between bona fide traders and mala fide traders. While the latter inadvertently breach the law, rogue traders' interests lie in the short-term profit generated by their illegal activities. Since the UCP Directive leaves national legislatures with considerable discretion regarding the choice of enforcement tools and the national configuration of the various institutions and enforcers differs, the question is how Member States may design an efficient enforcement framework. Weber tries to answer why no one-size-fits-all solution is available for all European Member States and how national legislatures may take certain design requirements into account when devising their national frameworks.
In the final contribution to this section, Dörte Poelzig poses the question 'Private or Public Enforcement of the UCP Directive? Sanctions and Remedies to Prevent Unfair Commercial Practices'. The various national enforcement strategies are reviewed. Poelzig surveys the main divide between Member States relying on public enforcement - using criminal law or administrative law - and those taking private law enforcement as a starting point. Given the need to ensure the full effectiveness of the UCP Directive, Poelzig argues that it is essential to establish a level playing field of effective enforcement and to identify the comparative strengths and weaknesses of the various available instruments.