An evaluation of the harmonised treatment of unfair commercial practices

The Unfair Commercial Practices Directive 2005/29/EC (referred to as “the Directive”) has been adopted by the European Parliament and the Council on May 11th 2005 following the Commission’s Green Paper on Consumer Protection of the European Union (EU)which set the grounds for the creation of a better consumer protection system in the EU. Unfair Commercial Practices (UCP) are defined by the Directive as “practices which are contrary to the requirement of professional diligence” and which “materially distort or are likely to materially distort the economic behaviour” of an average consumer. Also, we shall mention the scope of the directive which is restrictive in the way that it only protects consumers in business to consumer relationships (B2C) and does not deal with business to business or consumer to consumer relationships. In B2C relationships, the consumer’s protection is very important because it is the weakest party in the contract. However, its scope is broadened by the fact that it applies to commercial practices “before, during and after a commercial transaction in relation to a product, and the product being good or a service, from any sector, any marketing and selling methods.

The aims of the Directive are diverse. On the one hand, its purpose is to implement a better consumer protection within the EU and on the other hand, it also aims at harmonizing member States’ legislations in order to increase exchanges within the EU market. Harmonization is under the competence of the EU and, with the development of this economic space within the EU, there was a necessity to create “common rules for a common market”.

[...] The choice of a harmonisation model favouring the harmonised treatment of Unfair Commercial Practices under the Directive. Harmonisation was a core objective during the elaboration of the Directive. As studied previously, it is necessary for the development of the EU internal market in accordance with article 95 of the European Community Treaty about the approximation of laws. Besides, harmonisation has two functions: not only does it enable to have twenty seven regimes reduced in one common regime but it also regulates theses regimes according to a standard created at the EU level[8]. [...]

[...] This could be a problem for the harmonised treatment of UCP. Indeed, despite all the efforts to ensure harmonisation that can be seen through the drafting of the Directive, this could be of no effect if it is not adequately implemented by Member States. We shall first remind that the deadline for transposition was June 12th 2007[23]. It would be appropriate to check if Member States successfully complied with this obligation. In some cases, it was not a problem, and the Directive was adequately transposed in national legislation before the deadline. [...]

[...] Indeed, the full harmonisation model and the way the Directive has been drafted clearly represent a considerable achievement towards harmonisation. However, some other aspects in relation to the Directive are very likely to impede the harmonised treatment of UCP in all Member States. II. The difficult achievement of a fully harmonised treatment of Unfair Commercial Practices under the Directive. The issue of transposition into national legislations: a barrier to harmonisation? The choice of the directive for the implementation of this new piece of legislation is justified by the fact that the directive is the best tool to harmonise legislations. [...]