Preventive Control

The UCPD was implemented by the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008.[1] These introduce an injunctive or 'cease and desist' form of preventive control known as an 'enforcement order'. They provide that where a practice is unfair (following the definitions in the UCPD itself), it amounts to a 'Community infringement' under the Enterprise Act (EA) 2002; thereby allowing enforcement authorities to ask a court to issue an 'enforcement order' against the continued use of the practice.

Enforcement orders can be obtained against a trader carrying out the practice or likely to carry out the practice.[2] Under EA, s. 213, enforcement orders can be sought by the Office of Fair Trading (OFT), local trading standards authorities and the Department of Enterprise, Trade and Investment in Northern Ireland (all deemed 'general enforcers'). They can also be sought by those designated as enforcers by the Secretary of State (thus far the Civil Aviation Authority, the Information Commissioner, the Rail Regulator, the Gas and Electricity Markets Authority and the Director Generals of Telecommunications, Water, Gas and Electricity for Northern Ireland).[3] Enforcement orders can also be sought by those 'Community enforcers' listed in the Official Journal under Article 4.3 of the Injunctions Directive.[4] Finally, they can be sought by Consumer Protection Cooperation Enforcers, such as the Civil Aviation Authority, the Financial Conduct Authority, Ofcom, ICSTIS and the general enforcers mentioned above.[5]

Enforcement is coordinated by the OFT. The enforcer must consult the trader and the OFT to seek to ensure cessation of the practice.[6] Normally this consultation period is 14 days, but 7 days is sufficient for an interim order; and, if the OFT considers it necessary, consultation can be dispensed with altogether. An enforcer may accept an 'undertaking' that the practice will cease (and, therefore, not proceed to seek an enforcement order).[7]

The OFT issued guidance on the new concepts of unfairness when the law was first passed.[8] Of course, it must be emphasized that this guidance represents the Unfair Commercial Practices Directive in Scotland' (2010) 33 JCP 377; P Cartwright, 'Under Pressure: Regulating Aggressive Practices in the UK' (2011) LMCLQ 123; and C Willett and M Morgan-Taylor, 'Consumer Protection', in J Chuah and M Furmston (eds), Commercial and Consumer Law (Longman, 2nd edn, 2013), 7.8. the OFT view as to how the concepts of unfairness should be understood; it being open to the courts (when cases come before them) to take a different view.

This 'enforcement order' regime for UCPD-based unfair practices fits within a broader regime of preventive control in UK consumer protection. Enforcement orders can also be obtained against other 'Community infringements', that is, actions that represent breaches of standards contained in various other EU directives.[9] This would cover, for example, failure to abide by the various information obligations and cancellation rights that are provided for in doorstep and distance selling directives and the replacement provisions in the new Consumer Rights Directive.[10] It also covers selling goods that do not meet the conformity standards in the Consumer Sales Directive (or failing to provide the remedies in the Consumer Sales Directive);[11] the use of terms that are unfair under the Unfair Contract Terms Directive;[12] and breaches of the provisions of the Timeshare, Electronic Commerce and Television Broadcasting Directives.[13]

Enforcement orders can also be obtained against so called 'domestic infringements'. Essentially, 'domestic infringement' covers a variety of actions that represent breaches of contract, statutory duties, criminal offences and torts that harm 'the collective interests of consumers'.[14] The label 'domestic' infringement is used to indicate that the actions in question represent breaches of standards that have been set by domestic law, that is, they have not come from EU law. So, it would cover, for example, practices that amount to the criminal offence of harassment of debtors under the Administration of Justice Act (AJA), section 40; and breaking contracts by not delivering promised goods or services.[15] So, quite apart from harassment representing a criminal offence and failure to deliver goods or services giving consumers the right to seek private law remedies for breach of contract, an enforcement order can be issued requiring such conduct to cease in future.

  • [1] 2008/SI/1277. For the full background to implementation of the Directive see See also G Howells, 'The End of an Era - Implementing the Unfair Commercial Practices Directive in the United Kingdom: Punctual Criminal Law Gives Way to a General Criminal/Civil Law Standard' (2009) Journal of Business Law 183; H Collins, 'Harmonisation by Example: European Laws Against Unfair Commercial Practices' (2010) 73(1) MLR 89; C Willett, 'Unfairness under the Consumer Protection from Unfair Trading Regulations', in J Devenney, L Fox O'Mahony and M Kenny (eds), Unconscionability in European Private Financial Transactions (Cambridge University Press, 2010) 350; J Williams, C Hare 'Early Experiences of the Enforcement of
  • [2] The relevant courts are the High Court or county court in England, Wales or Northern Ireland or the Court of Session or Sheriff Court in Scotland. See EA, s. 212 and 217 and CPUTR, reg. 26; and C Willett and M Morgan-Taylor, 'Consumer Protection'.
  • [3] SI 2003/1399.
  • [4] 98/27/EC. 'Community enforcers' refers to bodies from other Member States, this being intended to facilitate cross-border co-operation in enforcement.
  • [5] EA, s. 215(5A), added by the Enterprise Act 2002 (Amendment) Regulations 2006 (SI2006/3363) in order to implement the EC Regulation on Consumer Protection Cooperation (Reg. [EC] No 2006/2004, as amended by the UCPD). Note also that the Financial Services Act 2012 introduced the new Financial Conduct Authority, replacing the old Financial Services Authority.
  • [6] EA, s. 214.
  • [7] EA, s. 219(4)
  • [8] OFT/BERR (2008) Guidance on the Consumer Protection from Unfair Trading regulations, London, OFT/BERR, available at leaflets/cpregs/oft1008.pdf.
  • [9] EA, s. 212, Sch. 13.
  • [10] Directives 85/577/EEC, 97/7/EC and 2011/83/EU respectively.
  • [11] 99/44/EC.
  • [12] 93/13/EEC.
  • [13] Directives 94/47/EC, 2000/31/EC and 89/552/EEC (as amended by 97/36/EC) respectively.
  • [14] EA, s. 211, 213(1)-(2) and 217(6); and C Willett and M Morgan-Taylor, 'Consumer Protection', above, n 7.
  • [15] See EA, s. 211(a)-(b) and see the Enterprise Act 2002 (Domestic Infringements) Order 2003, SI 1593; and note that the Protection from Harassment Act is also solely of domestic origin, as is the general common law rule that failure to deliver goods or services promised under a contract represents a breach of contract.
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