CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

DOES THE FULL HARMONIZATION OF THE CONSUMERS’ PROTECTION …

(Re)Action of the UCPD on Europe 2020 In 2013, the Commission, as the author of Europe 2020, made the initial move, as a matter of fact a double move, with respect to the UCPD. After years of silence and a lack of any explanatory notes, in 2013, the Commission adopted COM (2013) 138 Communication on the application of UCPD (“Communication UCPD”) 30 and COM (2013) 139 Report (“Report UCPD”) 31 in order to explain and enforce efforts to guarantee a high level of consumer protection in a national context, and particularly at a cross-border level. The Communication UCPD insists on the win-win idea symbiosis of competition fairness and consumer protection by stating “ The Directive constitutes the main general body of EU legislation regulating misleading advertising and other unfair practices in business-to-consumer transactions. It has a broad scope of application, applying to all business-to-consumer transactions (“B2C”) and in all sectors. …The Directive provides for a high level of consumer protection in all sectors .” What Europe 2020 is hoping for and perhaps assuming, Communication UCPD firmly states … and this without providing any justification. The Report UCPD seems more pragmatic and recognizes that there were “ significant delays in the transposition ” of the UCPD. Manifestly, the enthusiasm of the Commission, expressed in the UCPD and Communication UCPD, and even Europe 2020, was not shared by many EU member states. On May 25, 2016, the Commission adopted an updated version of the 2009 Guidance on the application of the Unfair Commercial Practices Directive (“Updated Guidance”). 32 Regarding the nature and purpose of the UCPD, it states “The Directive is horizontal in nature and protects the economic interests of consumers. Its principle-based provisions address a wide range of practices and are sufficiently broad to catch fast-evolving products, services and sales methods…” Does this mean a departure from the “European single internal market” priority and a move towards the economic interests of consumers? 33 The more we are uncertain about the substantive aspects, the more we are certain about the procedural aspects, i.e. enforcement. According to the Updated Guidance, “ The UCPD constitutes the overarching piece of EU legislation regulating unfair commercial practices in business-to-consumer transactions. It applies to all commercial practices that occur before (i.e. during advertising or marketing), during and after a business-to-consumer transaction has taken place. The 2013 Communication on the application of the UCPD… and its accompanying Report have shown that there is a need to step up enforcement of the UCPD provisions.” Further, the Updated Guidance underlines that “the UCPD does not cover national rules intended to protect interests which are not of an economic nature …” and refers to C-559/11 Pelckmans in which the Court of Justice of EU (”CJ EU”) accordingly confirmed the non-application of the UCPD to national provisions prohibiting traders from opening their shop seven days a week by requiring them to choose a weekly closing day. However, Guidance 2016 adds “ Conversely, national rules that aim to protect 30 COM(2013) 138 Communication on the application of UCPD, Brussels, 14 March, 2013. Available at http:// ec.europa.eu/justice/consumer-marketing/files/ucpd_communication_en.pdf [Accessed on 30 May 2017]. 31 COM(2013) 139 First Report from the Commission on the Application of UCPD, Brussels, 14 March, 2013. Available at http://ec.europa.eu/justice/consumer-marketing/files/ucpd_report_en.pdf [Accessed on 30 May 2017]. 32 COM(2016) 320 Guidance on the implementation/application of UCPD. UCPD Website – Updated Guidance. Available at http://ec.europa.eu/justice/consumer-marketing/files/ucp_guidance_en.pdf [Accessed on 30 May 2017]. 33 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.

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