CYIL vol. 8 (2017)

RADKA MACGREGOR PELIKÁNOVÁ – MAREK BENEŠ CYIL 8 ȍ2017Ȏ Estée Lauder, C-356/04 Lidl Belgium, C-446/07Severi, C-159/09 Lidl, C-195/14 Teekanne, C-75/15 Viiniveral Oy , etc. This consistent case law suggests that the average consumer is regarded by the CJ EU as a consumer who is not merely a weak party needing reinforced protection. 29 This is a highly controversial approach, or more precisely standard, but it must be admitted that the Commission via UCPD and Europe 2020 is consistent with the CJ EU, i.e. consumers are rather an auxiliary subject linked to the top priority – well functioning, preferably fair, competition and a competitive economy as such. Sustainable growth is linked to a more competitive economy (2. Europe 2020) and the Commission has to propose “action to tackle bottlenecks in the single market by pressing ahead with the Smart Regulation agenda, including considering the wider use of regulations rather than directives … improving the business environment and supporting entrepreneurship…” (3.1 Europe 2020). Well, this sounds at least as an endorsement of the move from minimal to full harmonization by the UCPD. Europe 2020 follows by moving from the public macro-sphere to the private micro- sphere and underlines the need for making “it easier and less costly for businesses and consumers to conclude contracts with partners in other EU countries, notably by offering harmonised solutions for consumer contracts, EU model contract clauses and by making progress towards an optional European Contract Law… making it easier and less costly for businesses and consumers to enforce contracts and to recognise court judgments and documents in other EU countries…” (3.1 Europe 2020). Europe 2020 mentions consumers only 12 times, and the last mention deals with the reform of the financial market – “Completing the strengthening of our prudential, accounting and consumer protection rules in the form a single European rule-book covering all financial actors and markets in an appropriate way…” (4.2 Europe 2020). Well, the literate and teleological interpretation of Europe 2020 does not provide direct answers to the stated key questions, but still provides clear indices of endorsement of the full harmonization of the UCPD and of the recognition of the average consumer standard established by the CJ EU, i.e. a reasonably well-informed, observant and circumspect consumer, see C-210/96 Gut Springenheide and Tusky . However, it must be pointed out that Europe 2020 hardly prioritizes consumers; instead it truly focuses on competition and its interplay as such, and goes more for objects and subject matters than subjects. In addition, these subjects of interest are more SMEs than consumers. With a touch of exaggeration, it can be suggested that Europe 2020 deals rather peripherally with consumers, and in its perspective the UCPD should be rather B2B than B2C. Perhaps this sounds less politically correct, but for sure it is more legislatively direct and honest. Europe 2020 is here predominantly to protect the operation of the market, not consumers and perhaps the crisis trauma helped to state it boldly. And how has the UCPD reacted to it?

29 DUIVENVOORDE, B. B., The Consumer Benchmarks in the Unfair Commercial Practices Directive. Studies in European Economic Law and Regulation 5. Amsterdam : Springer, 2015, 244 p. DOI: 10.1007/978-3-319- 13924-1.

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