The Future of the Blacklist: Change Horses in Midstream?

The blacklist may only be modified by revision of the UCP Directive.^[1] Any modifications at the national level are not allowed. Although a Member State might have another vision of what should always be considered unfair, it may not extend or shorten the list of 31 commercial practices prohibited per se.

The modification of Annex I by revision of the UCP Directive is currently unlikely. On 14 March 2013 the Commission submitted a report on the application of the UCP Directive,^[2] which was expected by 12 June 2011.^[3] According to the Commission there is no need to amend the blacklist as no new practices, which are not covered by the UCP Directive, have been identified. However, the report emphasized the importance of a uniform interpretation of the criteria and concepts contained in Annex I which is supposed to be achieved by enhancing the Guidance and the database on UCP Directive.^[4]

The other legislative actions prove that the blacklist of unfair commercial practices is clearly a favourite of the Commission. In November 2012, the concept of a blacklist for B2B relations was introduced in a Communication^[5] issued following public consultations on Directive 2006/114/EC concerning misleading and comparative advertising (MCA Directive).^[6] The Commission pointed at the inefficiency of testing whether a B2B commercial practice is misleading on the basis of a general clause, as it was broad, general and open to different interpretations and case-by-case assessment. Contrarily, an additional level of protection granted by a blacklist would strengthen legal certainty, the level of protection, without unduly affecting the contractual freedom in B2B relations and would facilitate clearer enforcement. According to the Commission, the blacklist of misleading marketing practices could cover such practices as e.g., concealing the commercial intent of a communication, the identity of a trader or material information on the consequences of a reply to a communication, and practices of misleading directory companies.^[7]

In this respect, the planned B2B blacklist opens up the opportunity to reconsider the future shape of European unfair competition law. One example given by the Commission of a commercial B2B practice, which consists of disguising a commercial communication as an invoice or obligatory payment, clearly shows the identity between some B2C and B2B commercial practices and the per se prohibitions thereof. ^[8] Even in the present B2C blacklist some prohibitions are a typical example of the protection of competitors (e.g., point 13, point 17 of Annex I to the UCP Directive).^[9] It is therefore possible to cover, as the Austrian example proves, in one blacklist both B2C and B2B commercial practices, even though this is not an unproblematic solution.^[10] Hence, the similarity of structure, content and wording of a future B2B and the old B2C blacklists, irrespective of the fact whether they will be included in separate B2C and B2B regulations or linked together under one legislative act, will result in the necessity to confront problems similar to the present ones.

• [1] UCP Directive, art 5(5).
• [2] Commission, 'First Report on the Application of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market and Amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council ('Unfair Commercial Practices Directive')' COM (2013) 139 final.
• [3] UCP Directive, art 18.
• [4] COM (2013) 139 final, 20.
• [5] Commission, 'Protecting Businesses against Misleading Marketing Practices and Ensuring Effective Enforcement. Review of Directive 2006/114/EC Concerning Misleading and Comparative Advertising' COM (2012) 702 final.
• [6] Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 Concerning Misleading and Comparative Advertising (codified version) [2006] OJ L376/21.
• [7] COM (2012) 702 final, 10 and 12.
• [8] Point 21 of Annex I to the UCP Directive prohibits as unfair in all circumstances including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
• [9] De Vrey (n 26) 71.
• [10] See Hans-Georg Koppensteiner, 'Das UWG nach der Novelle 2007', in Susanne Augenhofer (ed.), Die Europäisierung des Kartell- und Lauterkeitsrechts (Mohr Siebeck, 2009) 93-94.