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The European Unfair Commercial Practices Directive - Willem van Boom


Year 2014

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The european unfair commercial practices directiveNotes on ContributorsAcknowledgementsIntroduction1. The UCP Directive2. Three Recurring Themes2.1 Tension between Autonomy, Empowerment and Protection2.2 Maximum Harmonization Principle2.3 Enforcement3. The Contributions Gathered in This Collection3.1 Implementation, Approximation and Harmonization3.2 Vulnerability3.3 The UCP Directive and Other Regimes3.4 Enforcement Issues4. OutlookBibliographyPART I. Implementation, Approximation and HarmonizationChapter 1. UK Implementation of the Unfair Commercial Practices Directive1. Introduction2. UK Implementation: Techniques and Europeanization2.1 UCPD Unfairness Concepts and Requirements2.2 Preventive Control2.3 Europeanization of Preventive Enforcement through the 'General Clause'2.4 Criminal Sanctions: Tradition, Rationales, Policies and Operation2.5 Europeanization of Criminal Enforcement Through the 'General Clause'3. Spontaneous Europeanization of Private Law4. Full Harmonization, Minimum Harmonization and Limits to Europeanization: Financial Services4.1 Full Harmonization4.2 Minimum Harmonization and the Limits of Europeanization: The Case of Financial Services5. Judicial Approaches to Europeanization5.1 The Potential to Increase Standards of Protection Relative to Pre-existing UK Law5.2 Some Illustrative Cases6. The FutureAddendumBibliographyChapter 2. Pre-emption of National Prohibitions of Sale Below Cost: Some Reflections on EU Law between the Past and the Future1. Introduction2. Past Answers2.1 The 1993 Keck and Mithouard Judgment2.2 The 2002 Amended Commission Proposal for a Sales Promotions Regulation3. Present Answers3.1 The 2005 Unfair Commercial Practices Directive (2005/29)3.2 The 2003 Antitrust Regulation (1/2003)4. Future Answers?BibliographyChapter 3. The Blacklist of Unfair Commercial Practices: The Black Sheep, Red Herring or White Elephant of the Unfair Commercial Practices Directive?1. Introduction: Buy a Pig in a Poke2. The European Blacklist: Dark Horse or Wolf in Sheep's Clothing3. The National Blacklists: Take the Bull by the Horns4. The Interpretation of the Blacklisted Prohibitions: The Work Is Going at a Snail's Pace5. The Future of the Blacklist: Change Horses in Midstream?6. Conclusions: Hit the Bull's-EyeBibliographyPART II. VulnerabilityChapter 4. The Vulnerable Consumer in the UCPD and Other Provisions of EU Law1. Introduction2. The Emergence of the Notion of the Vulnerable Consumer2.1 A Plurality of Vulnerable Consumers in EU Consumer Law2.2 The Fragmented Consideration of the Vulnerable Consumer in Other Provisions of EU Law3. The Effects of Vulnerability on Protection3.1 The Treatment of Vulnerability3.2 The Penalties for Exploiting Consumer VulnerabilityConclusionBibliographyPART III. The UCP Directive and Other RegimesChapter 5. Can the UCP Directive Really Be a Vector of Legal Certainty?1. Introduction2. Legal Certainty within the UCP Directive2.1 The General Clauses of Unfairness as a Source of Fragmentation?2.2 The Black List as a Source of Increased Certainty?3. Legal Certainty beyond the UCP Directive: The Relationship between the Directive and Other Instruments of EU Law3.1 Fleshing out the Provisions of the UCP Directive: From Horizontal to Sectoral Provisions3.2 'Without Prejudice... 'to Legal Certainty? Delineating the Scope of the UCP Directive and Its Relationship with Other Provisions of EU LawConclusionBibliographyChapter 6. The Interaction between the Unfair Commercial Practices Directive and Self-Regulation: The Case of Codes of Conduct1. Introduction2. The UCPD and Self-Regulation of Commercial Practices Directed to Consumers2.1 The Commission's Initial Wish for European Codes of Conduct2.2 The Honest and Responsible Use of Codes of Conduct 2.3 Codes of Conduct as Benchmark of Fairness2.4 The Recourse to Self-Regulatory Bodies2.5 The UCPD and Codes of Conduct: Incentive or Disincentive?3. Codes of Conduct's Contribution to Consumer Protection as a Benchmark of Fairness3.1 Codes of Conduct and the Professional Diligence-Test3.2 France3.3 The Netherlands3.4 The United Kingdom3.5 Conclusion4. Codes of Conduct's Contribution to Consumer Protection: The Enforcement of the UCPD By Code Owners4.1 Three Conditions4.2 Devising New Codes4.3 Fair Codes4.4 Enforceable Codes of Conduct4.5 Concluding Remarks5. Self-Regulation's Contribution to Fulfilling the Harmonization Objective5.1 Converging National Private Standards of Fairness5.2 EU-Wide Codes of Conduct6. Amendment Proposals6.1 Optimizing the Interplay between Codes of Conduct and the UCPD6.2 Codes of Conduct and the Interpretation of the UCPD Standards6.3 Codes of Conduct and the Enforcement of the UCPD Standards6.4 European Codes of ConductBibliographyChapter 7. A Common Approach to the Enforcement of Unfair Commercial Practices and Unfair Contract Terms1. Breaking Boxes - A Common Approach?1.1 The Rise and Decline of German Law as a Blueprint for European Action1.2 Old Thinking - Old Member States - vs. New Thinking - New Member States?2. The Legal Questions in Perenicova and Invitel2.1 Impact on Misleading Unfair Commercial Practices (Incorrect Statement on the Annual Percentage Rate) and of a Collective Action on Unilateral Price Amendment Terms on Individual Contracts2.2 Unfair Commercial Practices and Contract Law - Divided or United?2.3 Collective Action and Individual Action - United or Divided?2.4 Injunction and Skimming Off- Divided or United?3. The Family Resemblance of Unfair Terms and Unfair Commercial Practices3.1 On the Way to an Approximation of the Control Methodology (from Blacklists to General Clauses) in Both Fields of Law via the ECJ3.2 On the Way to a Coherent Interpretation3.3 Doing Away with the Strict Separation3.4 ... Provided There Is an Unfair Commercial Practice and the Scope of Application of the Unfair Terms Directive Is Opened Up3.5 Unfair Commercial Practices as an Indication of Unfair Contract Terms4. A New Reading of Collective Actions against Unfair Terms4.1 The Action for an Injunction as a European Remedy4.2 Interlocking of Individual and Collective Redress via Article 7 Para 2 of Directive 93/13/EEC4.3 Extension of Res Judicata to Third Parties and/or to the Term?4.4 The Extension of Res Judicata as a Minimum Requirement for Member States4.5 Ex officio4.6 Beyond the Action for Injunction - Skimming-Off Procedures5. Striving for Individual Rights against Unfair Commercial Practices5.1 Gaps in the Enforcement of Unfair Commercial Practices5.2 Constitutionalization of Remedies6. Towards a Common Approach to Unfair Terms and Unfair Commercial Practices6.1 Effects of Collectively Prohibited Unfair Commercial Practices on Standardized Contractual Relations?6.2 Extension of Res Judicata through Reference to Article 11 of Directive 2005/29/EC?7. ConclusionBibliographyPART IV. EnforcementChapter 8. Law and Economics of Enforcing Misleading Advertising Laws: Incentives of Bona and Mala Fide Traders Assessed1. Introduction2. The Framework3. Developing Efficient Enforcement Designs in Misleading Advertising3.1 Preliminary Considerations3.2 Litigation before a Civil Court3.3 Litigation before a CADR3.4 Intervention of an Administrative Agency3.5 Criminal Law Enforcement3.6 Self-Regulation4. Design Suggestions5. ConclusionBibliographyChapter 9. Private or Public Enforcement of the UCP Directive? Sanctions and Remedies to Prevent Unfair Commercial Practices1. Introduction2. Requirements of EU law2.1 Public and/or Private Enforcement: Articles 11-13 of the UCP Directive2.2 Private and Public Enforcement in Cross-Border Cases2.3 Private Enforcement: Stipulations of the Principle of Effectiveness3. Implications for Member States3.1 Private and Public Enforcement3.2 Coordination of Private and Public Enforcement3.3 Strengthening Private Enforcement3.4 International Cases4. ConclusionBibliography
 
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