The Unfair Commercial Practices Directive in Context: From Legal Disparity to Legal Complexity?

Abstract

Based on a maximal harmonization model, the Unfair Commercial Practices Directive purports to introduce legal consistency and simplicity towards consumers by removing the differences between disparate commercial illegality standards that applied at national level in relation to the sale of goods and the provision of services. However, its practical reality seems likely to compromise its operation as a viable instrument of legal convergence and market transparency. This is partly because it relies predominantly on general clauses and vague notions, giving rise to the potential risk of interpretative disparities in its application by national courts. It is, however, primarily due to its strategic choice to approximate only the national laws on business-to-consumers relations, disregarding the evident impact that the laws on commercial practices may also have on the interests of competitors, and posing serious implementation problems in those countries where consumer protection and fair competition policy have been traditionally integrated in the same body of law. This is not, however, to say that the Directive does not constitute a revolutionary legal measure with potential implications even outside the scope of consumer protection policy. This is particularly so as concerns the legislative status it attributes to the average consumer concept, developing the respective Community case law and paving the way to its application in other related EU law areas