Self-Regulation's Contribution to Fulfilling the Harmonization Objective

Converging National Private Standards of Fairness

Not all codes integrate the UCPD standards or flesh them out (section 4.3.1). But if they do so, codes tend to focus on different types of commitments as practices in a same sector differ across markets and countries. Code owners are moreover not formally required to confine themselves to the legal standards set by the UCPD and may award more protection to consumers than the directive. The UCPD is a minimum harmonizing instrument with regard to codes of conduct. Codes of conduct varying from one Member State to another, therefore, contribute to differentiating the fairness appraisal - if they were to impact on this appraisal. This, however, turns out not to be the case very often (section 3).

The level of convergence between private standards can be measured by comparing codes of conduct in a same sector of activity across the European Union. In the car sector, the Dutch two-sided BOVAG terms can for instance be collated with the Vehicle Builders & Repairers Association (VBRA) Code in the United Kingdom. There are differences in the type of commitments traders reach to enable the consumer to make an informed decision. The VBRA stipulates that terms of self-regulation have remained largely unheeded and typical features of the codes of conduct have not been sufficiently exploited' the customer should be advised that, if required, any displaced parts can be made available for inspection or returned with the exception of those parts required for exchange or warranty. Where parts are required to be fitted, the customer should be provided with a clear explanation for the need for replacement. According to the BOVAG terms, parts that have been replaced may be reclaimed by the customer at the time the order to repair the car was placed. They do not mention any obligation to inform the consumer about his rights before the replacement takes place.

In the field of direct selling, the Consumer Code of Practice of the UK Direct Selling Association can be compared with the French Code Ethique de la Vente Directe and the two-sided GTC of the Dutch Vereniging Directe Verkoop. The trader's response to a complaint should occur within respectively 10, 21 and 14 working days. The British Code is much longer and more detailed than its French and Dutch counterparts. This code, to quote but one example, provides for concrete guidelines as to the time of day an appointment should be made (9 a.m. to 8 p.m.) and what can be regarded as a visit of reasonable length in the case of a straightforward product (maximum 30 minutes) and a party plan visit (maximum 2 hours).

Codes of conduct include many general clauses and open-textured commitments. Given the similar general wording of most advertising codes - which oblige their members to refrain from using misleading practices - interpretation differences may arise among self-regulatory bodies from different Member States.[1] What is more, a major focus of self-regulatory codes in the field of advertising seems to be on nationally tainted issues of 'taste and decency', which are not addressed by the UCPD (recital 7) but nonetheless influence the fairness assessment by private bodies. Finally, the fact that self-regulatory bodies have no access to preliminary procedures also hinders harmonization.

EU-Wide Codes of Conduct

Private regulation has contributed to European legal integration, mainly in the fields of advertising (EASA), direct marketing (FEDMA), timeshare (OTE), direct selling (FEDSA) and distance selling (EMOTA).[2] The EASA Best Practice Self-Regulation Model has driven the coordination and integration of different national self-regulatory regimes in the field of advertising. The EASA was implicitly mandated thereto by the Commission.[3] The Model has benefited the creation of self-regulatory regimes in the new Member States (section 4.2). The run-up to the UCPD has acted as a catalyst for this process for it was clear that the directive would to some extent recognize and incorporate private regulation in the advertising industry and the EASA wanted to demonstrate its goodwill.[4] The move towards full harmonization has bolstered the EASA's coordinating role without, however, leading to the drafting of a European advertising code.[5]

The directive does not expressly encourage the allocation of a complementary function to code-based schemes in regulating commercial practice and it has hardly impacted on EU-wide self-regulation of other commercial practices and sectors. EU-wide codes remain scarce.[6] Unlike the Services Directive or the E-commerce Directive, the UCPD does not promote the development of EU-wide codes of conduct. It goes without saying that differences in national laws keep hampering the development of EU-wide codes of conduct.

In its Green Paper, the Commission stated the option for EU-wide self-regulation could only work if non-compliance with a voluntary code would define as either a misleading or unfair trading practice and if the general duty would apply to trade associations and other organizations that make recommendations on trading practices and draw up codes.[7] Although the reinforcement of the responsibility of code owners in developing codes was left to the Member States, the directive has made voluntary commitments legally binding. Article 6(2)(b), however, has not yet fostered self-regulation at the European level. The technique of creating 'safe harbours' might have been a greater stimulus for self-regulation at the EU level given that EU-wide codes of conduct could effectively help creating practicable and attractive 'safe harbours'.[8]

  • [1] Interpretation divergences regarding the content of codes also occur between self-regulatory bodies and administrative authorities, as shows the Celldorado case.
  • [2] Van der Zeijden and Van der Horst (n 88) 19-20.
  • [3] Verbruggen (n 65) xiii and 135.
  • [4] Ibid xiii and 80.
  • [5] Ibid xxii and 144.
  • [6] European Communities, 'Enhancing the Quality of Services in the Internal Market: The Role of European Codes of Conduct' (2007) 5: market/services/docs/services-dir/codeconduct/the_role_of_european_codes_of_conduct_ en.pdf.
  • [7] COM (2001) 531 final (n 7) 14.
  • [8] Collins (n 12) 30.
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