The Recourse to Self-Regulatory Bodies
The legal regime of the UCPD is largely based on enforcement through courts and public supervisory bodies. Codes of conduct are voluntarily accepted rules and are supplementary to both legislation and case law. Articles 10 and 11(1) define the role of self-regulation in controlling unfair practices. Article 10 is 'not overly friendly towards codes'. Although self-regulation cannot replace judicial or administrative recourse, Member States may encourage the recourse to self-regulatory bodies in addition to court or administrative proceedings. This provision does not oblige Member States to stimulate control of unfair commercial practices by code owners, nor does it require them to foster the development of codes (unlike the E-commerce or the Services Directive). Article 11(1) goes a little further in encouraging reliance on codes. It enables Member States to decide whether to enable the courts or administrative authorities to require prior recourse to 'other' established means of dealing with complaints, including those referred to in article 10. Finally, article 17 asks Member States, where appropriate, to encourage traders and code owners to inform consumers of their codes of conduct.
The UCPD and Codes of Conduct: Incentive or Disincentive?
Codes were very cautiously brought into the UCPD, which places the emphasis on the honest use of codes of conduct rather than on their development and content. When it comes to stimulating the drafting and membership of codes, the UCPD does not adopt a 'carrot approach'. No privileges were granted to those who voluntarily comply with a non-binding code. Codes, according to the directive's wording, are neither 'safe harbors' nor presumed to be in conformity with the UCPD, even if they have been publicly endorsed. The 'stimulating' effect of the UCPD as regards self-regulation will mainly reside in a 'stick approach': the public threat to start proceedings under the directive or to legislate in case traders do not draft, sign up to or abide by a code of conduct.
According to the European Association of Communication Agencies, the UCPD even expresses a bias against self-regulation, threatening self-regulatory regimes instead of stimulating them. Because of article 11(1) 2nd section (b) trade associations may be disheartened from drafting codes and, having regard to article 6(2)(b), code membership increases the risk to be found guilty of a misleading practice. Furthermore, code membership could be discouraged by the fact that, in view of the full harmonization nature of the UCPD, 'free-riders' may not be held to code provisions outreaching the directive standards.
Is such a deterrent effect noticeable at the national level? Or has the national implementation of the UCPD had a positive impact on the codes' share in the achievement of the consumer protection and harmonization goals of the directive? And does this impact result from either a carrot or a stick approach? The interplay between the UCPD and codes of conduct will be assessed through an analysis of Dutch, French and English case law and self-regulatory practice. The UCPD has been transposed in the Civil Code in the Netherlands, in the Consumer Code in France and in the Consumer Protection from Unfair Trading Regulations 2008 in the United Kingdom (CPR 2008).
-  Howells, 'Codes of Conduct' (n 10), 211.
-  Established means are well-founded and effective systems of regulation (including self-regulation).
-  Position Paper of the European Association of Communication Agencies 15 November 2003.
-  It goes without saying that the increase of self-regulatory practice depends on more factors than the legal status of codes of conduct such as the need and the willingness to ban rogue traders from the market and to prefer 'fair' regulation above minimum standards which are cheaper to comply with: Collins (n 12), 32. This paper, however, focuses on the interplay between the law and self-regulation.
-  Wet van 25 September2008 tot aanpassing van de Boeken 3 en 6 van hetBurgerlijk Wetboek en andere wetten aan de richtlijn betreffende oneerlijke handelspraktijken van ondernemingen jegens consumenten op de interne markt, Stb. 2008, 397 and 398.
-  Loi no 2008-3 du 3 janvier 2008 pour le développement de la concurrence au service des consommateurs JORF n°0003 January 4th 2008 and Loi no 2008-776 du 4 août 2008 de modernisation de l'économie, JORF n°0181 August 5th 2008.
-  The Consumer Protection from Unfair Trading Regulations 2008 (2008 No 1277).