El. knyga: European Fair Trading Law: The Unfair Commercial Practices Directive [Taylor & Francis e-book]

Preface		xiii
List of Directives with Abbreviations		xv
1 INTRODUCTION
Geraint Howells		1	(26)
a. Background		1	(1)
b. The Traditions of Fair Trade Regulation within the Member States		1	(8)
(i) Special regime for consumers?		2	(2)
(ii) Use of general clause?		4	(1)
(iii) Consumer typology		5	(1)
(iv) Strict liability?		6	(1)
(v) Civil/criminal law		7	(1)
(vi) Sanctions		7	(1)
(vii) Soft law		8	(1)
c. The Community Acquis		9	(10)
(i) Negative harmonisation		9	(3)
(ii) Legislative competence		12	(1)
(iii) Positive regulation before the Unfair Commercial Practices Directive		13	(3)
(iv) Community policy		16	(3)
d. The Preparation of the Directive and Major Points of Debate		19	(4)
(i) Unfairness standard		20	(1)
(ii) Maximum harmonisation		21	(1)
(iii) Blacklist		22	(1)
(iv) Codes of conduct		23	(1)
(v) Enforcement		23	(1)
e. Outline of the Directive		23	(1)
f. Revision, Transposition and Entry into Force		24	(3)
(i) Entry into force		24	(1)
(ii) Transposition		24	(1)
(iii) Informing consumers		25	(1)
(iv) Revision		25	(2)
2 MINIMUM/MAXIMUM HARMONISATION AND THE INTERNAL MARKET CLAUSE
Hans-W. Micklitz		27	(22)
a. Introduction to the Debate		27	(1)
b. The Legal Background to Maximum Harmonisation and the Internal Market Clause		28	(7)
(i) Background of the minimum–maximum debate		28	(2)
(ii) Background of the country of origin principle		30	(2)
(iii) Background for combining maximum harmonisation and the country of origin principle		32	(3)
c. Maximum Harmonisation in the Directive		35	(4)
(i) The principle and its justification		35	(1)
(ii) The transition period, Articles 3(5) and (6)		36	(3)
(iii) Uncertainties in minimum–maximum harmonisation		39	(1)
d. The Relationship Between the Directive and the Proposed Regulation on Sales Promotions		39	(1)
e. Maximum Harmonisation and the Internal Market Clause in the Directive		40	(9)
(i) The internal market clause in the legislative process		40	(2)
(ii) The possible scenario of conflict		42	(1)
(iii) The correct interpretation of the internal market clause in the Directive		43	(1)
(iii) Article 4 in the harmonised field of the Directive		44	(3)
(iv) Article 4 in the non-harmonised area of the Directive		47	(1)
(v) Article 4 and the deferring effect of full harmonisation		47	(2)
3 SCOPE OF THE DIRECTIVE
Thomas Wilhelmsson		49	(34)
a. Introduction		49	(2)
b. Collective Protection		51	(2)
c. Commercial Practices		53	(5)
(i) Content of the definition		53	(3)
(ii) Before and after the transaction		56	(2)
d. Harming Consumers' Economic Interests		58	(5)
(i) Economic interests		58	(1)
(ii) Taste and decency		59	(3)
(iii) Protection of other societal interests		62	(1)
e. Business-to-Consumer Practices		63	(7)
(i) Introduction		63	(1)
(ii) Definition of consumer		64	(3)
(iii) Definition of trader		67	(2)
(iv) Business-to-consumer practice		69	(1)
f. Some Explicit Additional Delimitations		70	(13)
(i) Introduction		70	(1)
(ii) Intellectual property rights		71	(1)
(iii) Contract law		71	(3)
(iv) Health and safety		74	(2)
(v) Other Community rules		76	(1)
(vi) National rules based on minimum clause		77	(1)
(vii) Jurisdiction		77	(1)
(viii) Regulated professions		78	(2)
(ix) Financial services and immovable property		80	(1)
(x) Precious metal		80	(3)
4 THE GENERAL CLAUSE ON UNFAIR PRACTICES
Hans- W. Micklitz		83	(40)
a. Fair Trading de lege lata — References in Secondary Law		83	(1)
b. The Structure of the General Clause in the Unfair Commercial Practices Directive		84	(2)
(i) Threefold structure		85	(1)
(ii) Consequences and questions arising from the threefold structure		86	(1)
c. The Concept of Fairness		86	(11)
(i) The challenge — fairness, national morals, taste and decency, national cultures — how are they interrelated?		86	(2)
(ii) European fairness as an autonomous concept		88	(3)
(iii) European fairness and national morals		91	(4)
(iv) Taste and decency		95	(1)
(v) National cultures		96	(1)
d. Requirements of Professional Diligence		97	(5)
(i) Criticism of the conceptual approach		98	(2)
(ii) National, European and international professional diligence		100	(1)
(iii) The significance of professional diligence for misleading and aggressive commercial practices		101	(1)
(iv) Consequences arising from the lack of Europeanised professional diligence		102	(1)
e. Material Distortion of the Economic Behaviour of the Consumer		102	(9)
(i) Economic behaviour, informed and transactional decisions		103	(1)
(ii) The objective side of the distortion: the autonomy of the consumer		104	(1)
(iii) The subjective side of the distortion — intent and fault		105	(1)
(iv) The relevance of the materiality criterion		106	(1)
(v) The practical significance of the materiality threshold		107	(2)
(vi) Actual or potential distortion		109	(1)
(vii) Causality between the distortion and the process of taking the decision		110	(1)
f. The 'Average Consumer' and Particularly Vulnerable Groups		111	(6)
(i) The average consumer as a standard model		111	(1)
(ii) Particularly vulnerable consumer groups as a special provision		112	(1)
(iii) Children, the elderly, disabled and credulous people		113	(2)
(iv) The purpose of the commercial practices		115	(1)
(v) The abolition of statistical evidence?		116	(1)
g. Language and Fairness		117	(1)
h. Relationship of the General Clause and the Special Provisions		117	(6)
(i) Concept and practical significance		117	(2)
(ii) The general clause as safety net		119	(2)
(iii) The system of Annex I		121	(2)
5 MISLEADING PRACTICES
Thomas Wilhelmsson		123	(44)
a. Introduction		123	(2)
b. Misleading Actions		125	(22)
(i) Definition		125	(2)
(ii) The untruthfulness/deceptiveness condition		127	(4)
(iii) The average consumer test		131	(5)
(iv) The materiality condition		136	(2)
(v) What information?		138	(7)
(vi) Imitative marketing		145	(1)
(vii) Non-compliance with codes of conduct		146	(1)
c. Misleading Omissions		147	(11)
(i) An indirect duty to inform		147	(3)
(ii) Omission and withholding of information		150	(2)
(iii) The consumers' informational needs test		152	(2)
(iv) Material information in invitation to purchase		154	(3)
(v) Established information requirements		157	(1)
d. Practices That Are Always Regarded as Unfair		158	(6)
(i) Nature of the Annex		158	(2)
(ii) The cases		160	(4)
e. Understanding Misleading Practices		164	(3)
6 AGGRESSIVE COMMERCIAL PRACTICES
Geraint Howells		167	(28)
a. Introduction		167	(4)
(i) Beyond misleading practice		167	(1)
(ii) How far beyond misleading practices?		168	(2)
(iii) Aggressive practices — elements of an underdeveloped concept		170	(1)
b. Aggressive Practices		171	(7)
(i) Harassment, coercion, or undue influence		172	(2)
(ii) Impairment of the consumer's freedom of choice or conduct		174	(3)
(iii) Taking a transactional decision that he would not otherwise have taken		177	(1)
(iv) In its factual context		178	(1)
(v) Legal and illegal means		178	(1)
c. Harassment		178	(6)
(i) Protection of private sphere		178	(1)
(ii) Relevant factors		179	(1)
(iii) Objective or subjective test		179	(1)
(iv) General harassment laws		180	(1)
(v) Particular practices		181	(3)
d. Coercion		184	(3)
(i) Relationship with other concepts		184	(1)
(ii) Physical and psychological		184	(1)
(iii) Relevant factors		185	(1)
(iv) Borderline with legitimate pressure		185	(2)
e. Undue Influence		187	(3)
(i) The definition		187	(1)
(ii) Physical force		187	(1)
(iii) Position of power		187	(2)
(iv) Exploitation of position of power		189	(1)
f. Relevant Factors		190	(2)
g. Practices Considered Aggressive in all Circumstances		192	(1)
h. Towards an Understanding of Aggressive Practices		193	(2)
7 CODES OF CONDUCT
Geraint Howells		195	(22)
a. Codes, Soft Law, Self-Regulation and Co-Regulation		195	(1)
b. A 'Win-Win-Win' Solution		196	(1)
c. Varying Attitudes to Codes		197	(2)
d. Support for Codes in EU Policy		199	(1)
e. Codes in EU Legal Instruments		200	(2)
f. Code of Conduct — the Definition		202	(4)
(i) Agreement or set of rules		203	(2)
(ii) Trader behaviour		205	(1)
(iii) Commercial practice or business sectors		205	(1)
(iv) Trader undertaking		206	(1)
g. Code Owner		206	(1)
h. Non-Compliance With a Code as Misleading Conduct		206	(5)
(i) Not aspirational		208	(1)
(ii) Firm		208	(1)
(iii) Verifiable		209	(1)
(iv) Indication in a commercial practice		210	(1)
i. Unfair Practices in All Circumstances		211	(1)
j. Encouraging Reliance on Codes		211	(1)
k. Codes and Standards of Fairness		212	(3)
l. Policy		215	(2)
8 LEGAL REDRESS
Hans-W. Micklitz		217	(24)
a. Regulation of Enforcement Under the Unfair Commercial Practices Directive: Some Introductory Remarks		217	(3)
(i) The rules under the Unfair Commercial Practices Directive		217	(1)
(ii) The unanswered questions on enforcement		218	(1)
(iii) The broader picture: individual and collective legal protection in unfair commercial practices law outside the Directive		219	(1)
(iv) A connected issue: cross-border litigation and cross-border enforcement		219	(1)
(v) A disclaimer		220	(1)
b. Individual Legal Redress		220	(2)
(i) The individual legal redress of competitors		221	(1)
(ii) Individual legal redress for the consumer		221	(1)
c. Collective Legal Redress Through Public Authorities, Consumer or Trade Organisations		222	(6)
(i) Freedom of choice or limited choice?		222	(1)
(ii) The rules under Article 11 of the Unfair Commercial Practices Directive		223	(1)
(iii) Other Directives containing provisions on legal actions taken by associations		223	(3)
(iv) Standing to sue as an LC obligation		226	(1)
(v) Minimum requirements for enforcement bodies		227	(1)
d. Procedure and Remedies		228	(4)
(i) Prior consultation		228	(1)
(ii) Interim relief		229	(1)
(iii) Injunction		229	(1)
(iv) Penalties, sanctions and compensation for damages		230	(1)
(v) Substantiation of claims		231	(1)
e. Enforcement of Collective Consumer Interests in Conflicts Across National Borders		232	(5)
(i) Problems and experiences with legal enforcement across national borders		232	(1)
(ii) International jurisdiction for actions against cross-border injunctions		233	(1)
(iii) The right to take action and the legitimate interest to take legal action		233	(2)
(iv) The determination of the law applicable under EC private international law		235	(1)
(v) Execution of a judgment		236	(1)
f. The Regulation (EC) No 2006/2004 on Consumer Protection Cooperation		237	(4)
(i) The objective and contents of the Regulation		238	(1)
(ii) The significance of the Regulation with regard to the organisation of law enforcement		239
9 CONCLUSIONS
Thomas Wilhelmsson		241	(20)
a. A Directive of Legal and Practical Importance		241	(1)
b. The Measure of Assessment: The Purposes of the Directive		242	(2)
c. Consumer Confidence		244	(3)
d. The Level of Protection		247	(3)
e. Traders' Costs and Risks		250	(4)
f. Legal Certainty		254	(2)
g. United in Diversity		256	(5)
Appendix		261	(28)
Index		289

Geraint Howells is Professor of Law at Manchester University, UK and Barrister Gough Squre Chambers, UK. He has written widely on consumer law issues and his books include: Consumer Product Safety, (Ashgate, 1998); Consumer Protection Law , (2nd Edition, Ashgate, 2005); and EC Consumer Law, (Ashgate, 1997). He frequently acts as consultant for organisations such as the European Commission, DTI and NCC and is a member of the European Consumer Law Group. He is currently editor of the Yearbook of Consumer Law and Markets and Law series for Ashgate publishers. Hans-W. Micklitz is Jean Monnet Chair of Private Law and European Economic Law at the University of Bamberg, Germany and Head of the Institute of European and Consumer Law (VIEW). His work includes: studies of law and sociology in Mainz, Lausanne/Geneva, Giessen and Hamburg; consultancies for OECD in Paris, UNEP Geneva Switzerland/Nairobi Kenya and CI (Consumers International) as well as study visits at the University of Michigan, USA. Miclitz is also Jean Monnet Fellow at the European University Institute Florence, Italy and visiting professor at the University of Oxford. He has been head of the Scientific Committee on Consumer and Nutrition Policy at the Ministry of Consumer Protection, Nutrition and Agriculture since 2003. Dr Thomas Wilhelmsson is Professor of Civil and Commercial Law at the University of Helsinki, Finland. He is Vice-rector of the University and in charge of international affairs. Professor Wilhelmsson has published law books and articles in twelve languages. His main books in English are Social Contract Law and European Integration (Ashgate,1995) and EC Consumer Law (with Geraint Howells: Ashgate, 1997). For ten years he was a member of the Finnish Market Court and is actively engaged in commercial arbitration. He is a member of the Commission on European Contract Law (the Lando-Commission) and the Acquis group and has been awarded the title Doctor iuris honoris causa by the Uppsala, Oslo and Tartu Universities.