Unfair Commercial Practices - 2005/29/EC

Question 1

Aim of consumer protection

Answer 1

improve the ‘weak’ position of the consumers vis-à-vis businesses

Question 2

UCPD - key notes

Answer 2

• B2C commercial practices
• full harmonisation (except financial services, immovable property)
• sanctions are national

Question 3

Flowchart of assessment of UCPD

Answer 3

see Desktop

Question 4

B2C commercial practice

Answer 4

• Art. 2 UCPD
• Case law: commercial acts that originate from a trader and which clearly form part of an operator’s commercial strategy and relate directly to the promotion thereof and its sales development

Question 5

“Trader / business”

Answer 5

• Art 2 UCPD

- Case law: any natural or legal person which carries out a gainful activity (public or private, BKK Mobil Oil)

Question 6

“Consumer”

Answer 6

• Art 2 UCPD

- case law: CJEU case law: any individual not engaged in commercial or trade activities

Question 7

Time period UCPD is applicable

Answer 7

Before, during and after a commercial transaction (“cradle-to-grave” regime)
-> e.g. UPC

Question 8

“Practice”

Answer 8

“Practice” ≠ single communication
• Repeated more than once
• Addressed to indefinite number of consumers

HOWEVER: UPC -> any misleading practises in communication (also single one), is to be regarded as “misleading commercial practice”

Question 9

Harmonisation degree of UCPD

Answer 9

Full harmonisation (uniform law)
= MS may not maintain or adopt stricter national provisions (same minimum and maximum protection in EU)
= MS should virtually copy-paste the provisions of the Directive in national law
-> Precise SCOPE OF APPLICATION crucial:
ARTICLE 3 DIRECTIVE 2005/29 + RECITAL 6

Question 10

Practices included in scope (contrary to some national legislation)

Answer 10

• Premium selling/ tying (VTB-VAB, Plus)
• National legislation prohibiting certain announcements of price reductions (Wamo) -> insofar incompatible with National Law as consumer protection is pursued as objective
• Announcement of clearance sales (Köck) allowed
• Sale at a loss (Euronics) -> in so far as the prohibition is aimed at the protection of consumers

Question 11

Practices excluded/ not included from scope

Answer 11

Recital 6:

• national legislation relating to unfair commercial practices
• which harm only competitors’ economic interests or
• which relate to a transaction between traders

Case law:

• Tying of financial services (Citroen Benelux) (Art. 3 (9))
• Opening hours (consumer protection not an objective) (Pelckmans)
• Art. 3 (3, 8): provisions protecting public health or upholding professional standards (Vanderborght, Wamo)

Question 12

Misleading omission

Answer 12

Art. 7 UCPD

-> case law: Canal Digital Danmark (including all material info of Art 7 (4) does not preclude Art 6 (1) or Art 7 (2))

Question 13

Art. 7 (3) UCPD

Answer 13

transactional decision test applies here, too (Ving Sverige)

Question 14

Deroo-Blanquat case

Answer 14

Combined offer consisting of the sale of a computer equipped with pre-installed software
-> price of each of those items does not constitute material information

Question 15

Art 5 (2) UCPD

Answer 15

Unfair, if:

• contrary to requirements of professional diligence
• likely to appreciably impair the average consumer’s ability to make a free and informed decision AND
• likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

Question 16

Sanctions

Answer 16

Wide variety of sanctions:
o private law sanctions
o injunctions
o administrative sanctions
o criminal sanctions?

Enforcement:

• see above
• Cross-border enforcement: CPC Regulation 2006/2004
• > Exchange of information
• > Mutual assistance requests