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Conclusion

The regulatory framework is inherently complex, and it may be preferable to acknowledge this complexity, rather than pretend that the UCP Directive will create a uniform level playing field. Overall, one cannot but question the Commission's statement:

The Internal Market clause has resulted in a major simplification of the rules on misleading advertising and unfair commercial practices in business-to-consumer transactions across the EU, by replacing the 28 national regimes with one set of rules, whilst maintaining a high level of consumer protection. It was essential to overcome the specific legal barriers caused by the fragmented regulation of unfair commercial practices, which gave rise to cost, complexity and uncertainty for both businesses and consumers.[1]

The question remains whether businesses feel confident that they can save on costs by dispensing from seeking legal advice on how the UCP Directive and its general clauses more specifically apply in different EU jurisdictions. Let us not dismiss altogether the potential contribution that the UCP Directive can make to the proper functioning of the internal market, but let us not pretend either that the all the 'legal barriers' identified by the Commission have been overcome and a uniform level playing established. Seven years after the UCP Directive entered into force, the question remains as vividly as ever whether the gains in terms of legal certainty really justify the loss of flexibility by some Member States to increase the level of consumer protection which they were traditionally able to provide.

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  • [1] First Application Report (n 1) 4.
 
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