Assess the implementation of the Unfair Commercial Practices Directive in the UK. In particular, are the enforcement methods provided for effective or could they be improved?
Directive 2005/29/EC, the Unfair Commercial Practices Directive, was adopted in May 2005. This Directive aimed to improve consumer protection from unfair business practices and to simplify cross border trading by resolving the discrepancies between consumer protection laws in each Member State.1 This essay will discuss how the Directive was introduced into UK law in the Consumer Protection from Unfair Trading Regulations,2 focusing on whether the enforcement techniques that have been provided have been effective. The procedures in place comply with the Directive and the variety of available techniques is a good approach. However, I will argue that the aims of the Directive have been undermined by the approach to the Regulations taken by the Supreme Court and that a lack of sentencing guidelines has caused confusion. I will also argue that an absence of a private right of redress has left consumers with inadequate protection from unfair commercial practices and that this area of law could be significantly improved with the implementation of such a right. There are four main components of the Directive.3 Article 5 contains a general clause prohibiting unfair commercial practices. Misleading practices, outlined in Articles 6 and 7, and aggressive practices in Articles 8 and 9 are prohibited. The fourth component is a black list of practices in Annex 1 which must at all times be considered to be unfair and are banned in all circumstances. There are also specific rules for the protection of vulnerable consumers in Article 5. The Directive was implemented in the UK in the Consumer Protection from Unfair Trading Regulations on 26 May 2008. These Regulations repealed some overlapping areas of law including the Trade Descriptions Act 1968 and Part 3 of the Consumer Protection Act 1987 in order to comply with the aim of maximum harmonisation of EU Member State consumer protection laws.4 Regulation 3 implements the general prohibition of unfair commercial practices, while Regulations 5 to 7 implement the prohibition of misleading practices and aggressive practices from the Directive.5 The black list of practices in Annex 1 of the Directive is implemented in Schedule 1 of the Regulations.6 A strict and literal approach has been taken to the interpretation of the Directive provisions by the national courts and the European Court of Justice. This can be seen in the interpretation given to paragraph 31 of Annex 1 of the Directive in Purely Creative Ltd. et al v. Office of Fair Trading.7 This provision prohibits the aggressive practice of giving a consumer a false impression that they have won a prize when the consumer must incur a cost to take any action to claim the prize.8 It was held that any cost that is placed on the consumer, even as insignificant as the cost of a stamp, would lead to the practice being prohibited.9 Instructions for the enforcement of the Directive are contained in Article 11.10 It required that power is conferred on national courts to enforce the provisions of the Directive so that ‘adequate and effective means exist to combat unfair commercial practices’.11 The UK has placed a legal duty on the Office of Fair Trading (OFT) and the Local Authority Trading Standards Services, alongside the Department of Enterprise, Trade and Investment in Northern Ireland, to enforce the Regulations.12 Formal enforcement can be in the form of criminal proceedings or civil enforcement orders and will be taken under the civil injunctive powers of Part 8 of the Enterprise Act 2002.13 It was decided that, for most of the provisions, a breach should constitute a criminal offence, with the offences set out in Part 3 of the Regulations.14 However, compliance with the Regulations is also achieved by providing businesses with advice and...
Bibliography: 1. Chris Willett, ‘General clauses and the competing ethics of European consumer law in the UK’, C.L.J. 2012, 71(2), 412-440
13. Law Commission Report No. 332 (2012), Consumer Redress for Misleading and Aggressive Practices
15. Proposed Consumer Rights Bill – Commons Library Standard Note (October 2011)
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