Transcript Document

Unit B2 – Consumer contract and
marketing law
THE UNFAIR COMMERCIAL
PRACTICES DIRECTIVE
Uniform implementation: priorities
and next steps
Ankara, 7 December 2009
Karine Maillard
Consumer contract and marketing law
UCP Directive – Our priorities in
2009-2010
1 - Adequate transposition
2 - Uniform interpretation
3 - Effective enforcement
Crucial in order to achieve the aim of the UCP
Directive: uniform protection of consumers
across the internal market and legal certainty
for traders.
Unit B2 – Consumer contract and
marketing law
1. UCP – Adequate transposition
26 MS have transposed – ES case referred to the ECJ
Inadequate transposition : two main concerns
Concepts and provisions of the Directive inadequatly transposed
Inadequate screening - more restrictive national rules on commercial
practices which fall within the scope of UCPD
Administrative and political contacts in 2008-2009
4 references for preliminary rulings (2 BE, DE, AT) – Judgement of the Court of
Justice (“Total Belgium” case, 23 April 2009): UCP Directive precludes a national
prohibition of joint offers.
Infringement proceedings have started and will continue
EP resolution on UCP transposition and implementation (13/01/2009) : « In
cross-border transactions, consumers and businesses are hampered by incorrect
and delayed transpositions of Directives by Member States ».
2. UCP – Uniform interpretation:
a public database in 2010
EP resolution on UCP transposition and implementation
(13/01/2009) : « calls on the Commission to use this database
to set up a single point of access website where both
undertakings and consumers can retrieve information on the
legislation in force in Member States ».
UCP Database :
- signature of the contract in August 2009
- contractor and Commission have started the project
- public version available in September 2010
Open access to all legislation, ECJ case-law, relevant national
case-law and decisions (incl. summaries in English), academic
sources…
Candidate countries covered as of the day of their accession
2. UCP – Uniform interpretation Need for Guidance
Several working groups with the national authorities
in 2008-2009: need for guidance on certain
concepts (e.g. invitation to purchase;use of the
word « free ») or on new practices (misleading
green claims)
Consultations (national authorities; stakeholders;
ECCs)
European Parliament: 60 questions related to the
UCP Directive between 2007 and 2009 – Resolution
on the application of the UCP Directive in January
2009
2. Guidance on the
implementation of UCP
Objectives
Clarify problematic and broad concepts
and provisions
Intermediate step in the preparation of
the Report on the application of the
Directive to be submitted to the EP and
Council by June 2011
Prepare the possible review of the
Directive
2. Guidance on the
implementation of UCP
A living document
Published on 3 December on SANCO webpages
Dialog mailbox: comments welcome !
Regular updates when the need arises:
New products and marketing methods (e.g.digital
services)
National and Court of Justice’s case law
Example: the concept of professional diligence ; the
use of the general clause; pyramidal schemes
2. Guidance on the
implementation of UCP
Content
Clarification of the scope: what is covered (after-sales
services, sales promotions, financial services, certain
practices occurring on blogs …), what ids not covered,
who can be considered a trader, where does full
harmonisation apply
Common understanding of the general provisions
(transactional decision; average consumer; vulnerable
consumer; invitation to purchase)
Clarification of certain black listed practices, e.g. false
free offers
Unit B2 – Consumer contract and
marketing law
3. UCP - Effective enforcement
Consumer Protection national authorities are responsible for
enforcing the Directive. Enforcement is not fully harmonised.
Consumer Protection Cooperation Network for cross-border cases:
- exchange of information on request
- alerts
- request for enforcement measures
- joint enforcement activities: « Sweeps »
Sweeps in 2008-2009: airlines tickets ; mobile phone services ;
online sale of electronig goods (incl. mystery shopping), partly using
UCP Directive as legal basis : price must be inclusive of taxes; no
hidden charges; free means free; no hidden subscription…
Improving awareness
www.isitfair.eu
Digital guide for consumers (ec.europa.eu/eyouguide)
Unit B2 – Consumer contract and
marketing law
3. UCP - Effective enforcement Targeting sectors and practices
Most problematic sectors and practices
- n°1 for ECCs (cross-border): timeshare related products and holiday clubs /
aggressive practices, pressure selling, omission of information
- n°1 for national enforcers: misleading or incomplete price in telecom services
and financial services
- fake lotteries and prize draws
- unsolicited commercial communications (spams, SMS)
- unsolicited supply of (cultural) products
- new online services (astrology, health checks, online dating) : hidden charges; usage of
word « free »; hidden subscription
- internet services : false free offers; hidden subscription ; hidden charges; omission of
information or misleading information (in particular on the broadband speed).
- airlines and car rental websites
UCP – Next steps
Infringment proceedings will continue
Follow-up and update of the Guidance
Report on the application of UCP
Directive to be submitted to the EP and
the Council by June 2011