III. The UCP Directive and Other Regimes

Can the UCP Directive Really Be a Vector of Legal Certainty?

Amandine Garde


On 14 March 2013, the Commission published the first report on the application of Directive 2005/29/EC on unfair business-to-consumer commercial practices (the UCP Directive or the Directive), in which it confirmed the significance of the Directive for the EU economy.[1]

The UCP Directive clearly states its dual purpose: 'to contribute to the proper functioning of the internal market and achieve a high level of consumer protection'.[2] To this effect, it combines a broad prohibition on all unfair commercial practices harming consumers' economic interests, with a clause of maximum harmonization requiring that the national rules in place shall be replaced by a single, uniform EU framework, therefore departing from the minimum harmonization technique traditionally used in EU consumer law.[3] This combination was intended to promote legal certainty, increase business and consumer confidence in the internal market and, in turn, promote market integration.

The question whether the UCP Directive has contributed to ensuring a high level of consumer protection has been the focus of extensive academic debate: the Directive represents a trade-off between the two objectives it pursues in that it has required that some Member States lower the level of protection they traditionally provided to consumers in the name of internal market integration, whereas others have had to increase the level of protection applicable on their territories.[4] This contribution does not propose to focus on this question - though any assessment of the UCP Directive cannot avoid it. Rather, it proposes to assess the effectiveness of the UCP Directive in light of its other objective and attempts to answer the question of whether the Directive does promote legal certainty through market integration.

The question will be envisaged from two distinct angles. The discussion will first consider the extent to which the provisions of the UCP Directive themselves promote legal certainty, before scrutinizing the relationship of the UCP Directive with other EU legislative instruments whose objectives also include the protection of consumers.

  • [1] First Application Report on the Application of Directive 2005/29/EC on Unfair Business-to-Consumer Practices COM (2013) 139 final.
  • [2] Art 1.
  • [3] Examples of minimum harmonization directives in the area of consumer protection include: Council Directive 85/577/EEC of 20 December 1985 to Protect the Consumer in Respect of Contracts Negotiated Away from Business Premises (Doorstep Selling) [1985] OJ L372/31; Council Directive 90/314/EEC of 13 June 1990 on Package Travel, Package Holidays and Package Tours (Package Travel) [1990] OJ L158/59; Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts (Unfair Contract Terms) [1993] OJ L95/29; Directive 97/7/EC of the European Parliament and of the Council of 20May 1997 on the Protection of Consumers in Respect of Distance Contracts (Distance Selling) [1997] OJ L144/19; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees (Sales Guarantee) [1999] OJ L171/12.
  • [4] The case law of the Court is very clear in this respect. See in particular: Joined Cases C-261 and 299/07 VTB-VAB [2009] ECR I-2949; Case C-304/08 Plus Warenhandelsgesellschaft [2010] ECR I- 217; Case C-540/08 Mediaprint [2010] ECR I-10909; Case C-206/11 Köck [2013] ECR I-xxx, judgment of 17 January 2013.
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