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Home arrow Law arrow The European Unfair Commercial Practices Directive

The Future

This paper has demonstrated that the United Kingdom has implemented the UCPD via a mixture of preventive and criminal enforcement techniques, but that these techniques have been 'Europeanized' by the open-textured nature and significant breadth of application of the UCPD concepts. It has also shown that the UCPD may also lead to a more spontaneous (less direct) Europeanization of UK private law, in particular by moving towards introducing remedies for certain violations of the UCPD concepts of fairness.

At the same time, we have demonstrated an important limit to the Europeanization brought about by the UCPD. In the hugely important financial services sector, Article 3(9) of the UCPD, inter alia, is likely to mean that the pre-existing domestic regime will not be significantly Europeanized by the UCPD concepts.

In the latter part of the paper, we focused on the role of judges when it comes to the reception of the UCPD in the United Kingdom. It was argued that the UCPD's European concepts of fairness often have the potential to increase consumer protection in the United Kingdom, and that, so far, UK judges have been relatively protective in the way in which they have interpreted these UCPD concepts.

Of course, as we have noted many times throughout this paper, the UCPD unfairness concepts are of a rather 'open-textured' nature. This means that, while they can (and have so far) been interpreted in relatively protective ways, they might also be interpreted in ways that are rather more grounded in values of trader self-interest and consumer self-reliance. For instance, for the purposes of the misleading action concept, it might be taken that consumers can be expected to read not only the 'headline' information, but also less-prominent information that in some way qualifies or negates a misleading impression that has been given by the headline information.

The point is that we have yet to hear the views of the Supreme Court on such matters.[1] So we cannot be sure as yet as to what ethic of fairness will ultimately take hold in the United Kingdom. However, it will be interesting to see how the UK courts, in particular the Supreme Court, respond in the longer term to the decision of the ECJ in response to the reference made by the Court of Appeal in the Purely Creative case.[2] The ECJ decided that when para. 31 refers to a 'false impression' in relation to winning a prize (when in fact this is subject to some action or cost for the consumer), this, inter alia, includes cases where any one of the optional ways in which to claim the prize requires the consumer to incur any cost whatsoever. The Court explained that para. 31 aims to address the aggressive practice of exploiting the psychological effect of being told a prize has been won, this being likely to induce consumers to take the irrational choice of choosing the more expensive (but quicker) route (e.g., a premium rate call) to discover the nature of the prize.[3]

Of course, this reference went specifically to the interpretation of paragraph 31 of Annex 1 to the Directive and not to interpretation of the general tests of unfairness (i.e., the clauses on misleading and aggressive practices and on professional diligence). However, paragraph 31 is supposed to be a concrete example of the general aggressive practices concept. This concept is concerned with practices which significantly impair consumer freedom of choice.[4] It might then be argued that the ECJ decision in Purely Creative indicates an ECJ view as to how this freedom of choice concept might be understood under the general clause on aggressive practices. It could indicate that the ECJ is sensitive to the potential for consumer freedom of choice to be readily compromised when 'put on the spot' by attractive offers that tend to induce speedy and economically detrimental decisions.

We must now wait to see whether the UK courts (in particular the Supreme Court) decide to take such a protective approach to the aggressive practices concept; whether the UK courts make references under the aggressive practices (or the other) general clauses; and whether the ECJ does indeed choose to take to carry over the protective approach taken under para. 31 to the aggressive practices (and the other) general clauses.

  • [1] See Willett, above n 22, where one of the present authors argues that (i) the Supreme Court has chosen to unpack and apply the similarly open-textured general clause on unfair contract terms (and associated provisions) (from Directive 93/13/EEC) by reference to an ethic of trader self-interest and consumer self-reliance, rather than by reference to an ethic of protection; and (ii) that this is in contrast to the more protective approaches taken by the OFT and the Court of Appeal. This may be one reason why the Court of Appeal chose to make a reference to the ECJ in the Purely Creative case (above, n 93).
  • [2] See above, n 93.
  • [3] C-428/11.
  • [4] See n 78 above.
 
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