The United Kingdom
In the United Kingdom, the professional diligence requirement has been linked to the common law concepts of 'due diligence' and 'due care' on which is based the 'standard of (reasonable) care'. This standard is fixed by 'current market practice', that is, a 'practice common to a reasonable body of opinion'. During the transposition process, the UK government stated that in 'regulated sectors like financial services [the requirement of professional diligence was] likely to equate to compliance with existing regulation and conduct of business rules'. Although compliance with a code does not constitute a formal guarantee for passing the professional diligence test, a market-based interpretation of the fairness clause laying the emphasis on the customary criteria is therefore likely to prevail. Such an interpretation may allow for codes of conduct to provide conclusive evidence as to the requirements of professional diligence in a specific sector.
As of today, the professional diligence requirement has not been applied very often and the 'standard of care/due diligence' has barely impacted the interpretation of the UCPD. The traditional inclination to self-regulation has not yet been reflected in the way the UCPD is being enforced by the Office of Fair Trading (OFT). Approved codes do for instance not give 'safe harbours' from potential OFT action. The OFT has, however, not yet taken any action against a trader who has subscribed to an approved code. The judiciary has recently, for the first time, brought (the breach of) the professional diligence requirement in relation to (the breach of) a code of practice. In this criminal case, the defendant had presumably engaged in an unfair commercial practice resulting from the sale of security systems to a 76-year-old customer described as vulnerable, thereby violating its own code of practice.
Self-regulation has not exerted much impact on the interpretation of the directive's general clause by public authorities. Codes of conduct barely flesh out the clauses, mainly because the professional diligence requirement is not applied very often (United Kingdom) but also because of the lack of such codes (France). Codes of conduct clearly inform the content of the professional diligence requirement in the Netherlands. As expected, codes appear more successful in providing evidence that a practice is unfair than in proving fairness. In none of the three Member States under scrutiny do codes operate as safe harbours.
Dutch public authorities have established non-compliance with the requirement of professional diligence by testing a commercial practice against self-regulatory standards. Interestingly, the CA/ACM nor the administrative court have yet explicitly tested the codes of conduct filling in the professional diligence requirement against the UCPD standards (including the black list). Professional standards that outreach the directive's level of protection can only constitute an unfair - misleading - practice if the trader has made his commitment public (article 6[b]). The risk of binding not publicly committed traders to professional standards that are too high in respect of the directive's level of protection is further increased by the consumer-friendly interpretation the administrative authority gives to the codes it holds onto. Instead of turning to the (plausible) interpretation of the code by the responsible private bodies, the CA/ACM gives private standards its own (extensive) interpretation. In the NLE case, the court blew the whistle, finding that the public authority had conferred a wrong interpretation on the Consumer and Energy Supplier Code.
Because of the use of general clauses, it may, however, prove difficult to define the directive's level of protection with exactitude and thus to determine whether the threshold in private regulation is set too high. The administrative authority and the courts do not have many other benchmarks of fairness at their disposal than the existing codes and, what is more, a less protective public standard may discourage self-regulatory initiatives. The information duties laid down in article 7 and the exhaustive black list do, however, provide some useful guidance.
-  GB Abbamonte, 'The Unfair Commercial Practices Directive and Its General Prohibition', in S Weatherill and U Bernitz (eds), The Regulation of Unfair Commercial Practices Under EC Directive 2005/29: New Rules and New Techniques (Hart Publishing, 2007) 22.
-  Bolam v Friern Hospital Management Committee  1 WLR 582.
-  M Griffiths, 'Unfair Commercial Practices. A New Regime' (2007) 12(6) Communications Law 198.
-  Twigg-Flesner et al. (n 19) 6.
-  Government Response to the Consultation on an EC Directive on Unfair Business-to-Consumer Commercial Practices in the Internal Market (March 2004) 3.
-  OFT, 'Policy Statement on the Role of Self-Regulation in the OFT's Consumer Protection Work' (September 2009) s. 2.8, 188.8.131.52/shared_oft/reports/ consumer-policy/oft1115.pdf.
-  R. vXLtd  EWCA Crim 818 (23 May 2013).