CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ DOES THE FULL HARMONIZATION OF THE CONSUMERS’ PROTECTION … stronger economic governance to avoid the decline of highly interdependent economies. It glorifies the single market and is aimed at regarding its functioning and focuses on the access of both consumers and businesses. Sustainable growth is linked to a more competitive economy, which should lead to more jobs, innovations and increased general welfare. Since its adoption, until today, the full harmonization effect of the UCPD has been subject to criticism and undoubtedly is the most controversial aspect of the UCPD. Interestingly, the UCPD was adopted in 2005, it transposition deadline was 2007 and Europe 2020 was issued in 2010. Hence, the more general and strategic policy- oriented Europe 2020 came after a few years of the operation of UCPD and they have been fully co-existing for the last 7 years. This leads to an obvious question without any obvious answer – what kind of co-existence is it? Indeed, does the full harmonization of consumers’ protection against unfair commercial practices via UCPD fit in Europe 2020? Do we have a mutually supporting symbiosis or an internal inconsistency and contradiction? UCPD full harmonization for freedom on the internal market The UCPD applies to unfair business-to-consumer, B2C, commercial practices (Art. 3 UCPD) and EU member states are not allowed to restrict the freedom of movement of goods or services for reasons covered by this approximation (Art. 4 UCPD). Academia has very quickly reached a consensus that the UCPD is a complete harmonization instrument 12 designed for B2C situations. This consent was facilitated by the case law of the CJ EU, e.g. C-261/07 Total Belgium , in which the CJ EU held that the full harmonization by the UCPD means no more, no less, as well as explanatory statements issued by the Commission. 13 In sum, the EU opted to cover only B2C practices and to impose “no more, no less” protection to consumers all over Europe against unfair commercial practices, especially misleading and aggressive ones (Art. 5 UCPD). This choice to go via consumer protection law, and moving from traditional minimum harmonization to full harmonization, immediately confronted strong conceptual disparities in EU member state laws. 14 Before the UCPD, no general harmonization of laws against unfair competition was in the EU 15 and, in common law jurisdictions, the unfair trading cases were covered by general tort law and in particular its “most protean” subpart, the law of passing off, 16 while in continental jurisdictions there was generally applied a special unfair competition regulation stricto senso included in the Civil Code, in the Commercial Code, or in a special Act. Similarly, in accounting, the EU 12 STUYCK, J., Réflexions sur une meilleure intégration du droit de la concurrence et du droit des pratiques commerciales déloyales. Revue internationale de droit économique , 2011, 4, 455-479. 13 MacGREGOR PELIKÁNOVÁ, R., CÍSAŘOVÁ, J., BENEŠ, M., The Ambivalent Nature and Purpose of the Unfair Commercial Practices Directive. AA Law Forum , 2007, 8, 10-20. 14 OSUJI, O.K., Business-to-consumer Harassment, Unfair Commercial Practices Directive and the UK – A Distorted Picture of UniformHarmonisation? Journal of Consumer Policy, 2011, 34: 437. DOI: http://dx.doi.org/10.1007/ s10603-011-9175-4. 15 MARGONI, T., The Protection of Sports Event in the EU: Property, Intellectual Property, Unfair Competition and Special Forms of Protection. International Review of Intellectual Property and Competition Law , 2016, 47(4): 386-417. DOI: http://dx.doi.org/10.1007/s40319-016-0475-8. 16 NG, C.W., The Law of Passing Off – Goodwill Beyond Goods. International Review of Intellectual Property and Competition Law , 2016, 47(7): 817-842. DOI: http://dx.doi.org/10.1007/s40319-016-0510-9.

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