Codes of Conduct's Contribution to Consumer Protection as a Benchmark of Fairness
Codes of Conduct and the Professional Diligence-Test
As the Commission predicted, administrative bodies and courts rarely need to resort to the general clause and the professional diligence requirement laid down in article 5(2) UCPD. This general clause operates as a safety net, the smaller general clauses covering most unfair commercial practices. However, even though the definitions of misleading and aggressive practices do not entail a separate reference to the professional diligence test, codes of conduct may also be relevant to the assessment of such practices. This section assesses whether codes serve as a benchmark of fairness binding all traders irrespective of their allegiance to a code and, if so, whether the level of protection granted by the code is being compared to the UCPD standard.
According to article 2(h) UCPD, the professional diligence requirement of the general fairness clause encompasses both customary ('standard of special skill and care', 'market practice') and normative criteria ('honest', 'good faith'). By failing to transpose this definition, French law keeps the normative dimension of the professional diligence requirement out of sight. The reason why the directive provision has been left aside is not clear as it was not explicitly motivated during the transposition process. Although the lack of visibility of the normative bearing of the requirement could have led to a market-based interpretation of the criterion, it hasn't. As it turned out, French courts have shown a great willingness to interpret French law in conformity with the directive. The professional diligence criterion has been applied to the tied sales practice (which was banned before the UCPD was enacted). Doing so, French courts put normative criteria before current market practice. Likewise, the French Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) - the public body in charge of the enforcement of the UCPD - emphasizes the normative criteria. It explicitly acknowledges, however, that codes of ethics common to licensed (self-employed) professionals in the field of law and medicine and the codes of conduct drawn up by the Distant and Direct Selling Federations may help inform the content of the professional diligence requirement, alongside with trade usage. Apart from the field of advertising, self-regulation of commercial practices is, however, not broadly developed in France and does not have much impact on the fairness assessment. As for the misleading clause, exceptions exist, an example being the case wherein a French price comparison website was accused of misleading and unfair commercial practices as it did not warn the consumer about its advertising nature. Information duties laid down in the Charte des sites Internet comparateurs helped flesh out the misleading clause of article 6(1) UCPD. Since the trader had adhered to the code, emphasis was also put on him breaching his commitment (article 6[b] has not been transposed into French law). The French Supreme Court eventually reversed this decision, finding that the Court of Appeal omitted to verify whether the omissions were likely to substantially distort the average consumer's economic behaviour.
-  COM (2003) 356 final (n 20), s. 52 and 56.
-  Since 'Misleading a consumer or treating them aggressively are considered in themselves to be distortions of consumer behaviour rather than legitimate influence and, as such, contrary to the requirements of professional diligence': COM (2003) 356 final (n 20) s. 57.
-  Howells, 'Codes of Conduct' (n 10), 213.
-  XUP legislature/Assemblee Nationale (No 408), 14 November 2007, 55-56 mentions this choice but does not explain it.
-  JProx Lorient 27 August 2009, No 91-08-000276; C. Cass. 13 July 2010, No 09-15304 and 09-66970; C. Cass. 12 July 2012, No 11-18807.
-  DGCCRF note No 2009-07, 29 January 2009. See also INC Hebdo No 1497, 1 December 2008.
-  The advertising industry is regulated by its own professional association: the Professional Regulation Authority of Advertising (ARPP).
-  CA Grenoble 21 October 2010, No 08/03251.
-  See also CA Paris 8 November 2011, No 11/16050.
-  C. Cass. 29 November 2011, No 10-27402.