The Interaction between the Unfair Commercial Practices Directive and Self-Regulation: The Case of Codes of Conduct
Charlotte Pavillon
Introduction
In their relations with consumers, businesses must abide by legal rules, which often originate from European directives such as the Unfair Commercial Practices Directive (UCPD).[2] In addition to legal rules, traders may also voluntarily subject themselves to rules and standards that are the product of self-regulation in the sector.[3] The Association of British Travel Agents (ABTA) has for instance launched a code of practice that safeguards and promotes consumer interests beyond the legal minimum. Likewise, the French FEVAD (Fédération du e-commerce et de la Vente à Distance) and several other trade organizations have issued a code governing their members' e-commerce and distant selling practices.[4]
This chapter revolves around the question of whether the UCPD allows for self-regulation to help reach the directive S twofold goal of consumer protection and harmonization. The UCPD aims at both a high and a common level of consumer protection in order to smoothen the functioning of the internal market.[5]
A high level of consumer protection enhances consumer confidence and a harmonized level of protection induces (small) businesses to participate in the internal market. As such, this chapter explores the interplay between the UCPD and codes of conduct regulating business-to-consumer (B2C) trade at the EU and at the national level. Codes of conduct can potentially add to advancing the consumer protection and harmonization goals of the directive by impacting both the interpretation and the enforcement of the directive's standards. This impact is, however, to some extent either constrained or stimulated by the UCPD itself and by how it is implemented, interpreted and enforced at the national level. The purpose of this paper is to examine how the interplay between private regulation and the UCPD could be optimized with a view to ensuring the interests of both consumers and traders.
Section 2 establishes how the foundation for this interplay was laid, that is, how codes were integrated into the UCPD. Section 3 delves into the influence codes of conduct exercise on the fairness assessment by public authorities and national courts, and section 4 takes a closer look at the enforcement of the UCPD standard by private bodies. Both sections 3 and 4 assess how codes of conduct add to a high level of consumer protection whereas section 5 determines their contribution to harmonization. In sum, sections 3, 4 and 5 investigate how the directive allows for those contributions to be made. This chapter focuses on three Member States in particular: the United Kingdom, the Netherlands and France. In the first two Member States, codes of conduct often serve as a complement to legislation. In various fields of activity, many codes of conduct in place in the United Kingdom and the Netherlands preceded the UCPD.[6] In France, codes of conduct are less common (except in the advertising industry). The differences and resemblances between Member States will help map both the increase and convergence in self-regulatory enterprise can only be eliminated by establishing uniform rules at European level, which establish a high level of consumer protection. Member States are not allowed to adopt more protective rules within the field approximated by the UCPD (art 4). A high level of consumer protection is therefore subordinate to the harmonization goal.
- [1] This chapter is an updated and amended version of an article that appeared under the title 'The Interplay between the Unfair Commercial Practices Directive and Codes of Conduct' in 5 Erasmus Law Review (2012) 267.
- [2] Directive 2005/29/EC on unfair business-to-consumer commercial practices in the internal market (OJ 2005 L 149/22), see art 18.
- [3] Self-regulation is 'defined as the possibility for economic operators, the social partners, non-governmental organizations or associations to adopt amongst themselves and for themselves common guidelines at European level (particularly codes of practice or sectoral agreements)': Inter-institutional Agreement on Better Law Making (OJ 2003 C 321/1), 22.
- [4] This code can be consulted at fevad.com/uploads/files/Publications/ Guide_bonnes_pratiques_ecommerce_251011.pdf.
- [5] Recital 1 of the UCPD states that the European Community ought to contribute to the attainment of a high level of consumer protection. According to recital 5, obstacles to the free movement of services and goods across borders or the freedom of establishment
- [6] The Dutch process of self-regulation entails above all a dialogue between business and consumer organizations that gives rise to bipartisan general terms and conditions (GTC). In the Netherlands, the number of bilateral sets of GTC has increased over the years, but this development can hardly be linked to the enforcement of the UCPD. The bilateral GTC dictate commercial conduct and describe many commercial practices. Public enforcers see them as codes of conduct: CFI Rotterdam 19 January 2010, ECLI:NL:RBROT:2010:BK9796 and ECLI:NL:RBROT:2010:BK9798. They lack, however, a number of commitments that characterize codes of conduct such as standards of service and advertising guidelines.
