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Home arrow Law arrow The European Unfair Commercial Practices Directive

I. Implementation, Approximation and Harmonization

UK Implementation of the Unfair Commercial Practices Directive

[1] Marios Koutsias and Chris Willett

Introduction

This chapter considers how the Unfair Commercial Practices Directive[2] (UCPD) has been implemented in the United Kingdom. We show that the United Kingdom has used a blend of preventive and traditional UK criminal enforcement techniques, while these techniques have been 'Europeanized' by the open-textured nature and breadth of application of the UCPD unfairness concepts. In addition, although the UCPD does not require Member States to grant private law enforcement rights, we also argue that UK private law may nevertheless be Europeanized by the UCPD in more 'spontaneous' ways, as a result of the planned introduction of private law remedies for some violations of the (distinctly European) UCPD concepts of fairness.

Nevertheless, we also show that there are limits to this Europeanizing effect. First of all, in the important area of financial services, the 'home grown' regime is likely to remain dominant; because it operates within a well-established institutional structure and may well set higher standards of protection than those in the UCPD (permitted by article 3[9] of the UCPD, which exempts financial services from the full harmonization principle that applies generally under the UCPD).

Secondly, there is a possibility that judges may limit the extent of Europeanization. In contrast to the particular position in relation to financial services, the UCPD's European concepts of fairness often have the potential to increase standards of protection relative to pre-existing UK law. However, these European concepts are sufficiently open textured as to run the risk of being interpreted in non-protective ways, based on underlying UK judicial ethics of self-interest and self-reliance that have shown themselves in the past. So far, courts have taken a relatively protective approach to interpretation of the UCPD concepts. However, we will only really have a clear picture as to the impact of European fairness standards in the United Kingdom when we hear the views of the Supreme Court; and, in particular, see what the response is to the recent, and any future, ECJ interpretation of the unfairness concept.

UK Implementation: Techniques and Europeanization

UCPD Unfairness Concepts and Requirements

As is well known, the UCPD contains general clauses on 'misleading practices' (divided into 'misleading actions' and 'misleading omissions') and 'aggressive practices' (the main operative provisions in practice); as well as an overriding general clause, catching practices that are 'contrary to the requirements of professional diligence'.[3] It seems that this 'professional diligence' clause is intended to encapsulate, but possibly sometimes extend beyond, what would be caught by the general clauses on misleading practices and on aggressive practices.[4] There is also a list of 31 practices that are in all circumstances considered to be unfair, i.e., without application of the above general clauses on misleading and aggressive practices.[5]

The UCPD requires Member States to ensure that there are adequate and effective means to combat the use of practices that are unfair in one of the above ways; including means by which persons or organizations regarded under national law as having a legitimate interest in combating unfair commercial practices may take legal or administrative action against such practices.[6]

  • [1] Subject to some amendments and updating, this chapter has already been published in (2012) Erasmus Law Review (5)4.
  • [2] 2005/29/EC; G Howells, H-W Micklitz and T Wilhelmsson, European Fair Trading Law (Ashgate, 2006); S Weatherill and U Bernitz, The Regulation of Unfair Commercial Practices under EC Directive 2005/29 (Hart, 2007); C Willett, 'Fairness and Consumer Decision Making under the Unfair Commercial Practices Directive' (2010) 33 JCP 247.
  • [3] Arts 5-9.
  • [4] See Micklitz, in G Howells, H-W Micklitz and T Wilhelmsson, European Fair Trading Law, above, n 2 at 121.
  • [5] UCPD, Annex 1.
  • [6] UCPD art 11.
 
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