Overview of the application of the Unfair Commercial Practices Directive Humbolt Universität 7 May 2015

Transcription

1 Overview of the application of the Unfair Commercial Practices Directive Humbolt Universität 7 May 2015 Sophie Ridoux Unit E2 Consumer and Marketing Law DG Justice and Consumers

2 Directive 2005/29/EC (the UCPD) Main body of legislation on misleading advertising and business-to-consumer commercial practices in the EU. Full harmonisation character (confirmed by ECJ case law) Protection of economic interests "Safety net"

3 Timeline of Key events 2005 adoption End of 2009: last MS transposing the Directive Adoption of the Guidance on the implementation of the Directive 2011 UCPD legal database 2011 Beginning of a broad transposition check 2013 UCPD Communication and Rapport to EP and Council 2015 Modernisation of the UCPD Guidance

4 Application of the Directive Crucial role of the CJEU Confirmed the incompatibility of several national rules Prohibition of combined offers / sales with bonuses Prohibition to condition the participation of consumers in a prize draw on the purchase of product Specific rules on the display of price reductions (price of reference) Clarified what falls outside the scope of the Directive Commercial practices harming only competitors' interests Provisions not protecting economic interests of consumers Clarified the interpretation of substantive provisions Definitions of core concepts (e.g. invitation to purchase) Articulation between Article 5 et Article 6 (professional diligence) Clarification of Annex I (fake prizes, pyramid schemes)

5 Broad transposition check 25 pre-infringement letters sent since closed files 3 files about to be closed 11 infringement procedures opened (3 about to be closed) In addition Reasoned Opinion against France Case C-421/12 Commission v Belgium

6 Report on the application of the UCPD

7 2013 UCPD Report Main findings UCPD helped to enhance consumer protection Used to curb a wide variety of practices Well suited to assessing new on-line practices developing in parallel with the evolution of advertising techniques Premature to revise the Directive but further efforts should be made to strengthen enforcement

8 Enforcement concerns Limited resources, complexity/length of enforcement procedures and lack of deterrence of sanctions Both national and cross-border enforcement affected Inadequate response to cases of EU wide relevance Key sectors/ areas (detriment and growth potential) identified Need to focus on practices which target vulnerable consumers

9 UCPD Report Recommendations The Commission to take up a more prominent role, joining forces with the Member States (cross-border and cases which raise common questions for enforcers) Key priorities for action include: Establishing regular thematic workshops with enforcers and promoting "sweeps" Updating the UCPD Guidance Further developing the UCPD legal database Whilst continuing to ensure the compliance of national laws with the Directive.

10 Modernisation of the Guidance

11 Preparatory work 2013/ workshops with national enforcers Bilateral meetings with several MS and stakeholders Position papers received 27 April 2015 CPC workshop 5 May 2015 CPN meeting Soon: MS/stakeholder conference with a view to adopting the revised Guidance in 2015

12 Key objectives Focus enforcement action on specific key areas Explain interplay between the UCPD and other horizontal (e.g. CRD, data protection) or sector specific EU legislation (e.g. financial services, telecom) Integrate key case-law developments at EU and national level Tackle challenges linked to new on-line business models/advertising strategies Overall: enhance legal certainty and boost consumer trust especially within the Digital Single Market.

13 Key novelties New/expanded sections for key areas Online sector (new) Environmental claims (expanded) Travel and transport (new) Financial Services and Immovable Property Dedicated section on the interplay between the UCPD and EU sector specific / general legislation Key case law Other novelties

14 Online practices Liability of online intermediaries - "trader" / "hosting service provider" Comparison tools Online user reviews Commercial practices in social media Personalised pricing / marketing Geoblocking

15 Other key sectors Environmental claims Two main principles confirmed Taking into account the work of MDEC / national guidelines Travel and transport Issues related to online sales in these sectors Specific issues related to air transport and car rentals Financial services and immovable property Notion of "consumer" / "trader" Transparency of information / material information

16 Interplay with EU sector specific law Will prevail over the UCPD if there is a "conflict" E.g. Mortgage Directive More specific information requirements add to the general requirements set out in the UCPD E.g. Consumer Credit Directive UCPD complements sector-specific rules E.g.: Telecoms package

17 Consumer Rights Directive Interplay with other EU law Fully harmonised list of pre-contractual information requirements - Exception: onpremises sales Unfair Contract Terms Directive Compliance with UCPD is one of the elements in order to assess the fairness of a contract term / Notdirecteffecton the assessment of the validity of the contract/credit agreement (C-453/10 Perenič ) E-Commerce Directive Conditions for promotional offers clearly presented Art. 6 Competition / data protection rules Breach is not in itself a UCP infringement However can be an aggravating factor when assessing fairness

18 Other novelties In-app purchases taking into account experience gained through the 2014 CPC joint action Corporate Social Responsibility (CSR) claims "Up to" claims

19 Update on other consumer files 2 nd Awareness Raising Campaign on 5 basic consumer rights Report on the implementation of the Timeshare Directive Revision of the Misleading and Comparative Advertising Directive Revision of the Package Travel Directive

20 Thank you! DG JUST website: Legal database: More questions?