Future Answers?

In the 2009 Report on the Functioning of Regulation 1/2003, the Commission stated that the exclusion of unilateral conduct from the scope of the convergence rule is a matter which should be further examined.[1] The divergence of standards regarding unilateral conduct has been criticized by the business and legal communities, considering that diverging standards fragment business strategies that are typically formulated on a pan-European or global basis.[2] The Commission also stated that such per se prohibitions may result in price increases and loss of consumer welfare.[3] In my view, the Commission should consider to extend the convergence rule to national laws covering unilateral conduct.[4] National prohibitions of resale below cost would then be precluded by EU antitrust law.

Article 18 UCPD required the Commission to submit a Report on the UCPD to the European Parliament and the Council on 12 June 2011 at the latest. With a consultation concluded on 15 October 2011, the Commission gathered suggestions and opinions of the Member States and selected stakeholders in relation to the Directive.[5] The questionnaire for stakeholders contained the following question:

Do you consider that there are any legislative gaps in certain areas (e.g. sales promotions) which have affected the effective enforcement against certain unfair commercial practices? Should specific commercial practices be excluded from the scope of the Directive? In reply to this question, please provide a detailed description of the problems encountered and motivate your response as extensively as possible.[6]

The questionnaire for the Member States contained the following questions:

a) Do you have any national rules restricting the use of specific commercial practices (such as in the field of sales promotions, price reductions, advertising to children, doorstep selling [...]) In reply to this question, please provide a short description of these provisions (e.g. the obligation of displaying a reference price when announcing sales/promotions and the associated requirements).

b) How did the Directive impact this legislation? Do you consider that the full harmonisation character of the UCPD has created legislative gaps in certain areas (e.g. sales promotions) which have affected the effective enforcement against certain unfair commercial practices? In reply to this question, please provide a detailed description of the problems encountered.

c) Would there be a need, in your opinion, to further regulate any of these practices in the Directive?

d) Would a clarification in the Guidance on the implementation/application of the UCPD be an adequate mean to address these issues?

e) Should specific commercial practices be excluded from the scope of the Directive? In reply to this question, please motivate the reasons as extensively as possible.[7]

In its UCPD Report of 14 March 2013, the Commission considered that it would be inappropriate to amend the Directive at this stage, not least because the enforcement experience in the Member States is still too limited in time for such an encompassing body of legislation. The Commission will now focus its attention on the coherence of the implementation of the Directive, taking concrete actions to make enforcement work better in key areas to the benefit of consumer confidence and growth.[8] According to the Commission, the unpublished responses to the to specific areas. The deadline for the stakeholders questionnaire - a light version of the Member States questionnaire - was 14 October 2012 consultation showed that some Member States and stakeholders would be in favour of making legislative changes to the UCPD in the area of sales promotions, either in the form of further regulation or by excluding sales promotions from the scope of the Directive. The remainder of the Member States and stakeholders would explicitly reject the possibility of any further regulation of this area, while some others would welcome more guidance from the Commission on the topic. The Commission believed that most of the concerns raised by Member States and stakeholders can be addressed through measures aiming at increasing legal certainty and uniform application of the Directive in this field.64

Bibliography

Anagnostaras G, 'The Unfair Commercial Practices Directive in Perspective:

From Legal Disparity to Legal Complexity?' (2010) CML Rev 147-171. De Bauw H, 'De impact van de richtlijn oneerlijke handelspraktijken op de

regeling van de verkooppromoties onder de WHPC' (2006) DCCR 3-30. De Wulf H, B Keirsbilck and E Terryn, 'Overzicht van rechtspraak - Algemeen

handelsrecht en handelspraktijken' (2012) TPR 921-1320. Glöckner J, 'The Scope of Application of the UCPD - I Know What You Did Last

Summer' (2010) IIC 570-592. Keirsbilck B, 'De invloed van het Europees recht op het Belgisch handelspraktijken-

en belendende verbintenissenrecht', in I Samoy, E Terryn and V Sagaert (eds),

De invloed van het Europese recht op het Belgische privaatrecht (Antwerp:

Intersentia, 2012) 591-634. -, 'Does EU Economic Law Preclude National Prohibitions of Sales Below

Cost?' (2012) Erasmus Law Review 253-266. -, The New European Law of Unfair Commercial Practices and Competition

Law (Oxford: Hart Publishing, 2011). Keirsbilck B and J Stuyck, 'Een kritische analyse van de Wet Marktpraktijken en

Consumentenbescherming' (2010) TBH 703-744. Morgan De Rivery E and F Amato, 'The System of Interplay between EC and

National Laws as Laid Down in Article 3', in M Merola and D Waelbroeck

(eds), Towards an Optimal Enforcement of Competition Law in Europe

(Brussels: Bruylant, 2010) 131-155. Pliakos A and G Anagnostaras, 'Harmonising National Laws on Commercial

Practices: Sales Promotions and the Impact on Business-to-Business Relations'

(2010) EL Rev. 425-435. Vannerom J, 'Case Wamo: And the Question Remains ... Who Is (Actually)

Protected?' (2012) REDC 151-162.

64 Commission Report of 14 March 2013 on the application of the Unfair Commercial Practices Directive, COM (2013) 139 final, at 10.

  • [1] Report on Regulation 1/2003, 6-7.
  • [2] See also E Morgan De Rivery and F Amato, 'The System of Interplay between EC and National Laws as Laid Down in Article 3', in M Merola and D Waelbroeck (eds), Towards an Optimal Enforcement of Competition Law in Europe (Brussels: Bruylant, 2010) 143.
  • [3] Staff Working Paper accompanying the Report on Regulation 1/2003, 54-55, referring to inter alia U.K. Office of Fair Trading, 'Supermarkets: The Code of Practice and Other Competition Issues, Conclusions' (August 2005); OECD Roundtable on Resale Below Cost Laws and Regulations, Note by the Secretariat, Directorate for Financial and Enterprise Affairs, Competition Committee, 22 September 2005.
  • [4] The above-mentioned study on the impact of national rules on unilateral conduct that diverge from art 102 TFEU will also give an explanation and quantification of the impact of a possible extension of the convergence rule to national competition laws concerning unilateral conduct on undertakings.
  • [5] Questionnaires currently not available on the website of the European Commission. The deadline for the Member States questionnaire was 30 September 2012. The first part focused on general issues concerning the implementation of the Directive in the Member States; the second on the main UCP provisions; the third on the application
  • [6] UCPD questionnaire for stakeholders, Question 11 (under the heading of 'scope of application of the Directive').
  • [7] UCPD questionnaire for the Member States, question 8 (under the heading of 'Full harmonisation character [Art. 4]').
  • [8] Commission Communication of 14 March 2013 on the application of the Unfair Commercial Practices Directive, 'Achieving a High Level of Consumer Protection -Building Trust in the Internal Market', COM (2013) 138 final, at 9.
 
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