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Judicial Approaches to Europeanization

The Potential to Increase Standards of Protection Relative to Pre-existing UK Law

In contrast to the position just described in relation to financial services, the UCPD generally has the potential to increase standards of protection relative to pre-existing UK law. This is something that has been demonstrated at length elsewhere,[1] and there is no space here to provide a systematic comparison between the UCPD and pre-existing UK standards. However, it is worthwhile providing some key examples.

To begin with, there is the UCPD 'misleading omissions' concept.[2] It is well known that there has never been such a general rule against omissions in UK domestic law; so there is clearly now potential for a higher level of protection. Next, one might cite the 'undue influence' limb of the aggressive practices general clause.[3] This, as outlined above, covers exploitation of a 'position of power' through 'pressure', which 'significantly impairs' (or is likely to so impair) the average consumer's 'freedom of choice or conduct'; specifically by significantly limiting the ability of this average consumer to take an 'informed decision'.[4] Pre-existing UK domestic criminal and preventive rules focused mainly on the specific problem of harassment of debtors.[5] The UCPD undue influence concept seems to have the potential to cover much more than this. For example, greater trader knowledge/skill might be considered to create a 'power relationship' and the potential for 'pressure' at the sales stage. In this context, some high-pressure selling might well amount to undue influence; where, for instance, consumers are put on the spot to make quick decisions (the decision may, then, not be 'informed', as there was insufficient time to think it through). Post-contractually, the power relationship and pressure might come, for instance, from vulnerability when struggling with commitments. This might enable traders to pressure consumers into new commitments, refinancing etc. Clearly, these examples go well beyond what is covered by rules on harassment of debtors. They also extend beyond the traditional scope of domestic private law undue influence. Inter alia, this requires a special relationship of trust and confidence (rather than just a 'relationship of power'); and has, in practice in modern times, been restricted to the 'bank guarantee' scenario.[6]

In summary, then, the point is that (outside the financial services sphere) the UCPD's European concepts of fairness contain the potential to increase levels of consumer protection in the United Kingdom. In this sense, the 'Europeanizing' effect of the UCPD could be said to be all the more significant. Not only does the UCPD Europeanize the preventive, criminal and private law tools (as shown in the first part of this article); it also Europeanizes the substantive level of protection provided.

  • [1] See C Willett, 'Fairness and Consumer Decision Making under the Unfair Commercial Practices Directive', above, n 2; and C Willett, 'Unfairness under the Consumer Protection from Unfair Trading Regulations', above, n 7.
  • [2] UCPD, art 7/CPUTR, regs 6.
  • [3] Generally, see C Willett, 'Fairness and Consumer Decision Making under the Unfair Commercial Practices Directive', above, n 2; C Willett 'Unfairness under the Consumer Protection from Unfair Trading Regulations', above, n 7; and P Cartwright, 'Under Pressure: Regulating Aggressive Practices in the UK', above n 7.
  • [4] And thereby causes him to take or be likely to take a transactional decision he would not take otherwise: UCPD, art arts 8 and 2(j)/CPUTR, regs 7(1) & (3) (b).
  • [5] Administration of Justice Act 1970, s. 40.
  • [6] RBOS v Etridge (No 2) [2002] 2 AC 773 for a summary of the cases and a restatement of the rules.
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