CYIL vol. 8 (2017)

RADKA MACGREGOR PELIKÁNOVÁ – MAREK BENEŠ CYIL 8 ȍ2017Ȏ the economic interest of consumers, in conjunction with other interests, do fall within its scope.” Well, it appears that the “economic interests of consumers” is becoming a new hybrid ephemeral category of the EU law. Perhaps most surprising and confusing is the final disclaimer, that Updated Guidance “ is linked to the Commission’s Communication on a comprehensive approach to stimulating cross border e-Commerce for Europe’s citizens and businesses” (COM(2016)320),… “It was prepared by the Commission services and does not necessarily reflect the views of the European Commission. It is intended to facilitate the implementation of Directive 2005/29/EC on unfair commercial practices. However, it is itself not legally binding. Any authoritative reading of the law should only be derived from Directive 2005/29/EC itself and other applicable legal acts or principles. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law.” Conclusions The EU motto is “united in diversity” and the Europe 2020 backbone idea is “ Europe can succeed if it acts collectively, as a Union”. Since the internal single market with the famous four freedoms is a strategic priority, competition and competitiveness have always been at the very heart of the EU. In 2005, the EU crossed the Rubicon, and decided to fight in a “ united ” and “ collective ” manner, not only for the existence of competition, but as well for its fairness. In other words, the regulations protecting the existence of competition were complemented by a full harmonization consumer protection directive, UCPD. Both, the move from minimal to full harmonization, as well as generally the use of the B2C directive to address the quality of competition, i.e. often B2B relations, along with the combining of the protection of the competition fairness and the consumer protections, still are controversial. Further, its purpose remains unclear and its use of the average consumer standard litigates against the alleged primary objective – consumer protection. Europe 2020 is concerned with “ structural weaknesses in Europe’s economy ” and its 2 nd priority, sustainable growth, requires a “ more competitive economy.” Consumers are not at its heart. Europe 2020, unlike the UCPD with its reports, communications and guidance, even does not attempt to make this misleading impression. Europe 2020 says and does what the UCPD probably does not dare to say boldly, but still wants to do and achieve. The author of both, the Commission, seems, even after Europe 2020, to lack the courage to state clearly that the UCPD is here for the modern integration, for well-functioning competition where the consumer protection and welfare are relevant, but are not the top priority. Well- functioning competition is made by competitors, including the Europe 2020 protegés – SMEs, and consumers are only stakeholders, not project shareholders! Unfair commercial practices are B2B at least as much as B2C and the primary victims are honest competitors. To recapitulate, there are at least three critical problems challenging the fitness and compliance of the UCPD and its full harmonization with Europe 2020: (i) the use of the (alleged) consumer protection and B2C conceptual approach by the UCPD, (ii) unclearness regarding the top purpose of the UCPD, and (iii) the admitted resistance of the EU member states leading to transposition issues. Another two issues, the drive for the full harmonization and high expectations regarding average consumers, are covered in a symbiotic manner by the UCPD and Europe 2020, but still remain highly controversial from the EU member states perspective and even from the academic perspective. This leads to the score 3:2, i.e.

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