THE UNFAIR COMMERCIAL PRACTICES DIRECTIVE Uniform implementation: priorities and next steps Ankara, 7 December 2009 Kar

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

2. UCP Directive – Our priorities in 2009-2010 1 - 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.

3. Unit B2 – Consumer contract and marketing law 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 2008-2009 • 4 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 ».

4. 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 2009 - 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

5. 2. UCP – Uniform interpretation - Need for Guidance • Several working groups with the national authorities in 2008-2009: 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

6. 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

7. 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

8. 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

9. Unit B2 – Consumer contract and marketing law 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 2008-2009: 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 • www.isitfair.eu • Digital guide for consumers (ec.europa.eu/eyouguide)

10. 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

11. 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