THE UNFAIR COMMERCIAL PRACTICES DIRECTIVE Uniform implementation: priorities and next steps Ankara, 7 December 2009 Karine Maillard Consumer contract and marketing law Unit B2 – Consumer contract and marketing law

UCP Directive – Our priorities in Adequate transposition 2 - Uniform interpretation 3 - Effective enforcement Crucial in order to achieve the aim of the UCP Directive: uniform protection of consumers across the internal market and legal certainty for traders.

1. UCP – Adequate transposition 26 MS have transposed – ES case referred to the ECJ Inadequate transposition : two main concerns Concepts and provisions of the Directive inadequatly transposed Inadequate screening - more restrictive national rules on commercial practices which fall within the scope of UCPD Administrative and political contacts in references for preliminary rulings (2 BE, DE, AT) – Judgement of the Court of Justice (“Total Belgium” case, 23 April 2009): UCP Directive precludes a national prohibition of joint offers. Infringement proceedings have started and will continue EP resolution on UCP transposition and implementation (13/01/2009) : « In cross-border transactions, consumers and businesses are hampered by incorrect and delayed transpositions of Directives by Member States ». Unit B2 – Consumer contract and marketing law

2. UCP – Uniform interpretation: a public database in 2010 EP resolution on UCP transposition and implementation (13/01/2009) : « calls on the Commission to use this database to set up a single point of access website where both undertakings and consumers can retrieve information on the legislation in force in Member States ». UCP Database : - signature of the contract in August contractor and Commission have started the project - public version available in September 2010 Open access to all legislation, ECJ case-law, relevant national case-law and decisions (incl. summaries in English), academic sources… Candidate countries covered as of the day of their accession

2. UCP – Uniform interpretation - Need for Guidance Several working groups with the national authorities in : need for guidance on certain concepts (e.g. invitation to purchase;use of the word « free ») or on new practices (misleading green claims) Consultations (national authorities; stakeholders; ECCs) European Parliament: 60 questions related to the UCP Directive between 2007 and 2009 – Resolution on the application of the UCP Directive in January 2009

2. Guidance on the implementation of UCP Objectives Clarify problematic and broad concepts and provisions Intermediate step in the preparation of the Report on the application of the Directive to be submitted to the EP and Council by June 2011 Prepare the possible review of the Directive

2. Guidance on the implementation of UCP A living document Published on 3 December on SANCO webpages Dialog mailbox: comments welcome ! Regular updates when the need arises: New products and marketing methods (e.g.digital services) National and Court of Justice’s case law Example: the concept of professional diligence ; the use of the general clause; pyramidal schemes

2. Guidance on the implementation of UCP Content Clarification of the scope: what is covered (after-sales services, sales promotions, financial services, certain practices occurring on blogs …), what ids not covered, who can be considered a trader, where does full harmonisation apply Common understanding of the general provisions (transactional decision; average consumer; vulnerable consumer; invitation to purchase) Clarification of certain black listed practices, e.g. false free offers

3. UCP - Effective enforcement Consumer Protection national authorities are responsible for enforcing the Directive. Enforcement is not fully harmonised. Consumer Protection Cooperation Network for cross-border cases: - exchange of information on request - alerts - request for enforcement measures - joint enforcement activities: « Sweeps » Sweeps in : airlines tickets ; mobile phone services ; online sale of electronig goods (incl. mystery shopping), partly using UCP Directive as legal basis : price must be inclusive of taxes; no hidden charges; free means free; no hidden subscription… Improving awareness Digital guide for consumers (ec.europa.eu/eyouguide) Unit B2 – Consumer contract and marketing law

3. UCP - Effective enforcement - Targeting sectors and practices Most problematic sectors and practices - n°1 for ECCs (cross-border): timeshare related products and holiday clubs / aggressive practices, pressure selling, omission of information - n°1 for national enforcers: misleading or incomplete price in telecom services and financial services - fake lotteries and prize draws - unsolicited commercial communications (spams, SMS) - unsolicited supply of (cultural) products - new online services (astrology, health checks, online dating) : hidden charges; usage of word « free »; hidden subscription - internet services : false free offers; hidden subscription ; hidden charges; omission of information or misleading information (in particular on the broadband speed). - airlines and car rental websites Unit B2 – Consumer contract and marketing law

UCP – Next steps Infringment proceedings will continue Follow-up and update of the Guidance Report on the application of UCP Directive to be submitted to the EP and the Council by June 2011