The Unfair Commercial Practices Directive 2005/29/EC (referred to as "the Directive") has been adopted by the European Parliament and the Council on May 11th 2005 following the Commission's Green Paper on Consumer Protection of the European Union (EU)which set the grounds for the creation of a better consumer protection system in the EU. Unfair Commercial Practices (UCP) are defined by the Directive as "practices which are contrary to the requirement of professional diligence" and which "materially distort or are likely to materially distort the economic behaviour" of an average consumer. Also, we shall mention the scope of the directive which is restrictive in the way that it only protects consumers in business to consumer relationships (B2C) and does not deal with business to business or consumer to consumer relationships. In B2C relationships, the consumer's protection is very important because it is the weakest party in the contract. However, its scope is broadened by the fact that it applies to commercial practices "before, during and after a commercial transaction in relation to a product, and the product being good or a service, from any sector, any marketing and selling methods.
The aims of the Directive are diverse. On the one hand, its purpose is to implement a better consumer protection within the EU and on the other hand, it also aims at harmonizing member States' legislations in order to increase exchanges within the EU market. Harmonization is under the competence of the EU and, with the development of this economic space within the EU, there was a necessity to create "common rules for a common market".
[...] We will highlight the fact that, through the Directive, the harmonisation concern of the European legislator appears. The Directive, adopted in 2005, was required to be transposed into member States' national laws by June 12th 2007. However, knowing that this new piece of legislation would have considerable effects into national legislations, this deadline could be subject to derogations. As a consequence, member States are allowed to continue to apply more restrictive national measures during a six-year transition period from December 12th 2007 (the deadline from which the measures transposing the Directive have to be applied) provided that these measures are proportionate to the objective of consumer protection[7]. [...]
[...] This may be partly due to the freedom given to the Member States while transposing a directive: nothing is imposed to them apart from the obligation to comply with the Directive's objectives[32]. Thus, they are free in the way they want to draft the act of transposition. The risk is domestication which is the changing of the Directive's language and the use of similar national concepts[33]. Domestication should be avoided by Member States while transposing and they should closely follow the Directive's wording in order to avoid legal uncertainty and achieve full harmonisation. As a consequence, it seems impossible to have a uniform treatment of UCP within the EU. [...]
[...] Council Directive 84/450/EEC on Misleading Advertising and Comparative Advertising, and Directives 97/7/EC on the protection of consumers in respect of distance contracts, 98/27/EC on injunctions for the protection of consumers interests, 2002/65/EC on the distance marketing of consumer financial services of the European Parliament and of the Council, and regulation No 2006/2004 of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws. “Harmonisation by example: European laws against unfair commercial practices”, Hugh Collins, The Modern Law Review, January 2010. Article 1 of the Directive. Unfair Commercial Practices Directive : new laws to stop unfair behaviour towards consumers”, The European Commission, Office for Official Publications of the European Communities available on www.ec.europa.eu Article 249 of the Treaty on the European Union. [...]
[...] Indeed, the provisions in the black list are so detailed that it raises no problem for their application into national legislations and by national courts. Knowing the already existing differences between Member States' national legislations, we can imagine how important the achievement of this agreement on such detailed provisions is[19]. Moreover, some considerations which could have been obstacles to the harmonised treatment of UCP have not been included into the scope of the Directive. Actually, the Directive does not take into account any consideration related to taste and decency. [...]
[...] The difficult achievement of a fully harmonised treatment of Unfair Commercial Practices under the Directive. The issue of transposition into national legislations: a barrier to harmonisation? The choice of the directive for the implementation of this new piece of legislation is justified by the fact that the directive is the best tool to harmonise legislations. However, contrary to regulations, it is not directly applicable into national laws; that is the reason why Member States have to transpose it, according to article 249 of the Treaty on the European Union. [...]
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