EUR-Lex
SWD(2016)0163

COM(2013)0138
EUR-Lex

The Commission presents a first report assessing the application of Directive 2005/29/EC on Unfair Commercial Practices (UCPD) in the Member States and evaluating its effects.

As announced in the Communication on the application of the Unfair Commercial Practices Directive accompanying this report, the Commission considers that it does not seem appropriate to amend the Directive at this stage. This outcome reflects the results of the consultation and the preliminary conclusions drawn from the experience on enforcement in Member States, which is significant but still too limited in time for such a comprehensive body of legislation.

The main points of the report are as follows:

Benefits of the Directive : the experience gained from the first few years of the application of the Directive demonstrates that the latter has helped to enhance consumer protection in Member States while protecting legitimate businesses from competitors who do not play by the rules:

· national consumer protection watchdogs have used the Directive to curb and penalise a wide variety of unfair business practices;

· the UCPD is the only general instrument of EU legislation in place to assess environmental claims or aggressive practices ;

· the ‘Black List’ has provided national authorities with an effective tool : (i) for tackling common unfair practices like bait advertising, fake free offers, hidden advertising and direct exhortations to children; (ii) for tackling unfair practices in the fields of financial services and immovable property;

· the legal framework provides a prompt enforcement response to abuses perpetrated by means of new commonly used tools such as price comparison and collective booking websites or in relation, for example, to the increasing involvement of advertising in social networks;

· actions taken under the CPC-Network (network on consumer protection) concerned infringements of the UCPD and several joint surveillance actions (‘sweeps’ ) have been carried out on the basis of UCPD provisions (websites selling airline tickets, online mobile phone services, websites selling consumer electronic goods) ;

· cooperation with national enforcement authorities and the implementation elements gathered in the UCPD Database reveal that the rules are mostly interpreted in a uniform manner.

Improve enforcement of the Directive : the report states that the concerns which have been raised by some stakeholders in relation to the application of the UCPD to certain specific unfair commercial practices can be addressed by initiatives to improve enforcement in the Member States.

In this connection, the Commission considers that future efforts will need to concentrate on key thematic areas where detriment and lost opportunities for consumers appear to be most frequently recurring and where the Single Market's growth potential is the biggest. These key areas are identified as retail trade (including e-commerce), the transport sector, the digital economy and energy / sustainability.

The report notes that more consumers are now interested in making cross-border purchases (52%, +19) and are willing to spend more money cross-border (18%, +5) than in 2006, when the Directive had not yet been transposed in Member States. Nevertheless, it has to be recognised that growth in online cross border shopping lags far behind domestic growth, making it clear that more needs to be done. This is why emphasis now needs to be placed on correct and consistent application of the Directive.

Accordingly, the Commission suggests that further efforts should be made in terms of strengthening UCPD enforcement, improving the deterrent value of penalties and increasing cooperation in cross-border cases within the scope of the CPC Regulation.

The Commission considers that it should take up a more prominent role , joining forces with Member States and supporting them in the application of the Directive across the EU, in particular with regard to unfair practices having a cross-border dimension such as those taking place in the online environment and which raise common questions for enforcers.

COM(2013)0139
EUR-Lex

PURPOSE: the regulation of unfair business-to-consumer commercial practices and the amendment of Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation 2006/2004/EC of the European Parliament and of the Council (Unfair Commercial Practices Directive).

LEGISLATIVE ACT: Directive 2005/29/EC of the European Parliament and of the Council.

CONTENT: The Directive, which was proposed by the Commission in June 2003, aims to clarify consumers’ rights and boost cross-border trading by harmonising EU rules on business-to-consumer commercial practices. The new legislation outlines “sharp practices” which will be prohibited throughout the EU, such as pressure selling, misleading marketing and unfair advertising. Certain rules on advertising to children are also set out. Through this legislation, EU consumers will be given the same protection against aggressive or misleading marketing whether they buy locally or from other Member States’ markets. Businesses will benefit from having a clear set of common EU rules to follow, rather than a myriad of divergent national laws and court case rulings, as has been the case until now.

ENTRY INTO FORCE: 12/06/2005.

DATE OF TRANSPOSITION: 12/06/2007.

Directive 2005/29
OJ L 149 11.06.2005, p. 0022-0039

03616/2005

SP(2005)1076/2

The Commission can accept all 19 amendments adopted by the European Parliament in full. They are the result of a compromise agreement reached between the European Parliament, Council and Commission during the second reading. The amendments are in line with the Commission’s objectives for the proposal and maintain the balance of interests achieved in the common position.

COM(2005)0096
EUR-Lex

The European Parliament adopted the report by Mercedes BRESSO(PES, IT) modifying the Council's common position. (Please refer to the summary dated 02/02/2005).

The report as adopted contains 19 amendments to the draft directive. To avoid going to conciliation, MEPs compromised on some of their initial proposals (68 in number) and withdrew others. The Council, which had already agreed to a majority of Parliament's 58 first reading amendments, made it clear that it would not accept some of the MEPs' resubmitted proposals. In particular, with regard to the 'common market' clause, the Council refused to reintroduce (as in the Commission's initial proposal and as favoured by certain MEPs) the 'country of origin' principle (under which the law of the Member State where the trader is established is applicable). This point serves to link this directive on unfair commercial practices to the services directive (now being debated by Parliament) and the text regulating sales promotions (currently blocked in Council over the 'country of origin' principle).

T6-0048/2005
OJ C 304 01.12.2005, p. 0275-0351 E

Results of vote in Parliament

The European Parliament adopted the report by Mercedes BRESSO(PES, IT) modifying the Council's common position. (Please refer to the summary dated 02/02/2005).

The report as adopted contains 19 amendments to the draft directive. To avoid going to conciliation, MEPs compromised on some of their initial proposals (68 in number) and withdrew others. The Council, which had already agreed to a majority of Parliament's 58 first reading amendments, made it clear that it would not accept some of the MEPs' resubmitted proposals. In particular, with regard to the 'common market' clause, the Council refused to reintroduce (as in the Commission's initial proposal and as favoured by certain MEPs) the 'country of origin' principle (under which the law of the Member State where the trader is established is applicable). This point serves to link this directive on unfair commercial practices to the services directive (now being debated by Parliament) and the text regulating sales promotions (currently blocked in Council over the 'country of origin' principle).

T6-0048/2005

Debate in Parliament

A6-0027/2005

A6-0027/2005

The committee adopted the report by Mercedes BRESSO (PES, IT) modifying the Council's common position under the 2nd reading of the codecision procedure. One amendment specified that the 'blacklist' of misleading commercial practices attached to the directive is a single list which shall apply in all Member States and can only be changed by revising the directive.

MEPs added a number of definitions to the blacklist:

- promoting a product similar to that made by a particular manufacturer in a way that implies that the product was made by the same manufacturer;

- falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer;

- creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold;

- systematic failure, on the part of insurers, to respond to "pertinent correspondence".

The committee also adopted an amendment aimed at ensuring that advertisements should not include a direct exhortation to children to buy a product.

Lastly, an amendment was adopted to ensure that "misleading omissions" would also include cases where a lack of clear information on the part of a trader "causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise".

The Commission supports the Council's common position. It is line with the aims and approach taken in the Commission's original proposal and endorsed by the Parliament. The common position reflects the spirit of all or part of 51 of the 58 amendments which were acceptable to the Commission in full, in part or with changes, and 3 amendments which the Commission had originally indicated it was unable to accept.

In particular:

- the common position retains the average consumer benchmark proposed by the Commission and supported by the Parliament as the ‘default' benchmark against which the impact of potentially unfair commercial practices will be assessed. The drafting has been amended so that there is no longer a definition of the average consumer in the text, following concerns that this would prevent the concept from evolving in line with ECJ jurisprudence;

- the common position also makes specific provision for the protection of vulnerable consumers. This reflects the concern expressed in a number of Parliament amendments that the articulation between protection of the average consumer and of vulnerable consumers should be more explicit. The Commission can support these changes because they do not require an assessment of each individual's circumstances, which would be unworkable. They do ensure that vulnerable consumers can be protected when they are particularly at risk while safeguarding legitimate advertising practices, such as statements which are not meant to be taken literally;

- the Council adjusts the concept of professional diligence to incorporate the concept of good faith and refers to the standard of skill and care that a trader may reasonably be expected to exercise;

- it includes a definition of ‘transactional decision' to clarify what is included within a consideration of the consumer's ‘economic behaviour';

- on the choice of law, the Commission's proposal had included a provision specifying that the law of the country where the trader was established would always be the applicable law (i.e. a choice of law rule). The Parliament's amendment had proposed excluding the rules which determine the law applicable to non-contractual obligations from this provision. The Commission had indicated that this amendment was not acceptable because it could have the effect of making traders subject to the public law requirements of one country and, simultaneously, under the laws governing international private law, the law of another member state. In the common position, the choice of law rule was deleted in part because of most Member States' concern that in cross-border disputes consumers could be disadvantaged if the law of the trader were applied. The Commission does not share these concerns because of the full harmonisation and the high level of consumer protection achieved in the proposal. However, the Commission does not consider it essential to insist on this point in this particular case given the considerable simplification arising from the full harmonisation and the consequent internal market benefits. In line with normal practice, the applicable law in cross-border disputes will therefore be determined by the courts.

- the common position includes a temporary derogation for national laws based on the minimum clauses in existing directives, which reflects that proposed in Parliament's amendment. It also includes a clause calling for a review of the application of the directive after four years. The Commission is prepared to accept this derogation on the basis that it is limited and temporary, to enable Member States to manage the transition from minimum to full harmonisation.

The following declaration is annexed to the Commission's opinion:

The Commission can only agree to the deletion of article 4.1 of its proposal on the understanding that the present directive provides for a full harmonisation of the domain covered by the directive and that for this reason article 4.1 is not legally required to ensure the proper functioning of the internal market in this field. The practical implementation of this directive will be actively monitored by the Commission so as to achieve its uniform application.

COM(2004)0753
EUR-Lex

In general, the Council has followed the European Parliament Opinion and the Commission's position on such opinion. It has integrated in its common position 51 out of the 58 Amendments accepted by the Commission, either in whole or partly. It has also endorsed 4 amendments which the Commission had initially indicated it was unable to accept.

The common position represents a balance of concerns and interests with the main results of:

- maintaining the general prohibition of unfair commercial practices, with Annex I containing the list of those commercial practices which shall in all circumstances be regarded as unfair;

- retaining the proposed average consumer benchmark but with the inclusion of explicit provisions for the protection of the vulnerable consumer;

- deleting the country of origin clause originally proposed by the Commission;

- maintaining the clause of free circulation of services or goods whereby free circulation cannot be restricted for reasons falling within the field approximated by this Directive;

- temporarily allowing Member States to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing minimum harmonization clauses;

- clarifying the scope of the Directive notably in relation to certain professions, products or activities;

- inserting a review clause.

Of Parliament's 94 amendments, the Council accepted 7 without amendment, 48 in part or with drafting modifications and did not include 39 amendments in the common position.

The Council also rejected 7 amendments accepted by the Commission.

The other innovations introduced in the common position are:

- the adjustment of several definitions and a new definition of "transactional decision" is inserted and the definitions of "average consumer" and of "Community level code" are deleted;

- adjustments to the criteria for misleading actions;

- clarification of the status and content of the Annexes.

11630/2/2004
OJ C 038 15.02.2005, p. 0001-0020 E

In general, the Council has followed the European Parliament Opinion and the Commission's position on such opinion. It has integrated in its common position 51 out of the 58 Amendments accepted by the Commission, either in whole or partly. It has also endorsed 4 amendments which the Commission had initially indicated it was unable to accept.

The common position represents a balance of concerns and interests with the main results of:

- maintaining the general prohibition of unfair commercial practices, with Annex I containing the list of those commercial practices which shall in all circumstances be regarded as unfair;

- retaining the proposed average consumer benchmark but with the inclusion of explicit provisions for the protection of the vulnerable consumer;

- deleting the country of origin clause originally proposed by the Commission;

- maintaining the clause of free circulation of services or goods whereby free circulation cannot be restricted for reasons falling within the field approximated by this Directive;

- temporarily allowing Member States to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing minimum harmonization clauses;

- clarifying the scope of the Directive notably in relation to certain professions, products or activities;

- inserting a review clause.

Of Parliament's 94 amendments, the Council accepted 7 without amendment, 48 in part or with drafting modifications and did not include 39 amendments in the common position.

The Council also rejected 7 amendments accepted by the Commission.

The other innovations introduced in the common position are:

- the adjustment of several definitions and a new definition of "transactional decision" is inserted and the definitions of "average consumer" and of "Community level code" are deleted;

- adjustments to the criteria for misleading actions;

- clarification of the status and content of the Annexes.

11630/2/2004

14166/2004

T5-0298/2004
OJ C 104 30.04.2004, p. 0035-0260 E

T5-0298/2004

Debate in Parliament

A5-0188/2004

A5-0188/2004

CES0105/2004
OJ C 108 30.04.2004, p. 0081-0085

2539

COM(2003)0356
EUR-Lex

EUR-Lex
SEC(2003)0724

COM(2003)0356
EUR-Lex