Harmonisation by Example: European Laws against Unfair Commercial Practices
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00785.x |
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| Author | Hugh Collins |
LEGISLATION AND REPORTS
Harmonisation by Example: European Laws against
Unfair Commercial Practices
Hugh Collins
n
This examination of the implementation of the European Union’s Directive on
Unfair Commercial Practices in the United Kingdom by the Consumer Protec-
tion from Unfair Trading Regulations 2008 assesses the likely impact on the
national law governing the marketing practices of rogue traders, including its
ambition to simplify and extend legal protection, and the likely success of the
Directive in achieving the harmonisation of the laws and practices regulating
marketing in Europe. In particular, the discussion evaluates the regulatory strat-
egy of the Directive in its attempt to secure uniform laws through thecombina-
tion of principles, rules, and concrete examples of prohibited practices.The paper
also investigates the likely impact of theRegulationson the private law ofcontract
and tort and the possibilities for improvements in a consumer’s personal right of
redress.
INTRODUCTION
The EuropeanUnion is often presented as disunited and confused about it goals.
While this perspective may be an apt description of the politics surrounding
reforms to the governing treaties, it overlooks some of the important achieve-
ments of the European Community in laying the foundations fora competitive
single market. In particular, increasingly comprehensive consumer protection
measures are gradually transforming the legal frameworkthat regulates everyday
transactions in all the Member States. The boldest initiative enacted so far is the
Unfair Commercial Practices Directive 2005.
1
It creates uniform rules to govern
all marketing practices which are designed to induce consumers to purchase
goods and services, controlling misleading advertising, false claims about pro-
ducts and services, deceptive pricing, high pressure sales techniques, and similar
sharp practices. The Directive demonstrates an evolving con¢dence and clear
strategic approach shared by the Commission, the Council of Ministers, and the
n
Professor of English Law, London School of Economics.
1 Directive 2005/29 of the European Parliament and of the Council of 11May 2005 concerning
unfair business-to-co nsumercommercial practices in the internal market and amending Council
Directive84/450/EEC,Directives 97/7/EC,98/27/EC and 2002/65/ECof the European Parliament
and of the Council and Regulation (EC) No20 06/2004 of the European Parliament and of the
Council, OJ L149/22(2005). Unless otherwise stated, all references toArticles below refer to this
Directive.
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(2010) 73(1) 89^118
European Parliament.
2
Even more ambitious in some respects is the next Eur-
opean legislation in the pipeline: the proposed Consumer Rights Directive.
3
Although this latest proposal may be presented as a consolidation of more nar-
rowly focused existing European directives concerning amongst other matters
consumer guarantees and unfair terms,
4
the sum is greater than the parts, because
the draft directive envisages a comprehensive law governing consumer contracts
for the purchase of goods and services. But will this new comprehensive Eur-
opean legislation succeed in its goal of harmonising the law of consumer protec-
tion across Europe in order to promote consumer con¢dence in the single
market?
One persistent reason to doubt that European measures will succeed in their
goal of uniform laws is the obstacle presented by wide divergences in national
traditions in lawand regulation.
5
To implement consumer directives, each Mem-
ber State has to ¢t them into their existing regulatory and private law schemes.
O⁄cials and judges interpret the new laws in the light of national traditions and
the context into which the European measures are inserted. It is not di⁄cult to
foresee that despite the harmonising e¡orts of the Directive, di¡erences between
nationallaws and practice will persist, and indeed that new divergences will arise.
6
Acknowledging that such problems exist, the European Commission has
proposed that what is required, in addition to a clari¢cation and consolidation
of the existing legislation, is the development of a‘Common Frame of Reference’,
which would provide common principles, concepts, and guidance for
courts when interpreting legislation that implements Directives that a¡ectprivate
law.
7
One reasonwhy consumer protection directives have in the past only achieved
patchy harmonisation has been their limited ambition of only setting minimum
standards. Member States have been permitted to retain their existing laws in so
2 See Commission,EU PolicyStrategy2007^2013:Empowering Consumers, EnhancingtheirWelfare, E¡ec-
tively ProtectingThem, Brussels, 13.3.2007, COM(2007)9 9 ¢nal.
3 COM (2008)614/3,8/10/2008.
4 Directive93/13 on unfair terms in consumer contracts [1993] OJ L95/29; Dir.1999/44 on certain
aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/12.
5 The possibility and desirability of u niform private laws i n Europe, given the existing diversity,
has been much debated in recent years,begi nning with the controversy about convergence: e.g.
B.S. Markesinis (ed), GradualConvergence: Foreign Ideas,ForeignIn£uences,and English Lawon the Eve
of the 21
st
Century (Oxford: OxfordUniversity Press, 1994); P. Legrand,‘European Legal Systems
are NotConverging’ (1996) 45 ICLQ 52;P. Legrand,‘Againsta European Civil Code’ (1997) 60 M
L R 44;T.Wilhelmsson, E. Paunio and A. Pohjolainen (eds), PrivateLaw and the Many Cultures of
Europe (The Hague: Kluwer Law International, 2007); O. Lando,‘Can Europe Build Unity of
Civil Lawwhile Respecting Diversity?’ (2006) Europae diritto privato 1;T.Wilhelmsson,‘The Ethi-
cal Pluralism of Late Modern Europe and Codi¢cation of European Contract Law’, in J. Smits
(ed),The Need for a European Contract Law:Empirical and Legal Perspectives (Gronigen: Europa Law
Publishing, 2005) 121; H. Collins,The European Civil Code:The Way Forward (Cambridge: Cam-
bridge UniversityPress, 2008) 124.
6 G.Teubner,‘Legal Irritants: Good Faith in British Law or HowUnifyi ngLaw Ends Up in New
Divergences’ (1998) 61MLR 11.
7 Communication from the Commission to the European Parliament and the Council, AMore
Coherent European Contract Law: An ActionPlan COM(2003) 68 ¢nal; Communication from the
Commission to the European Parliamentand the Council, European ContractLaw and the Revision
of the acquis:TheWay Forward COM(2004) 651¢nal.
Harmonisation by Example
90 r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(1) 89^118
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