THE PROHIBITION OF AGGRESSIVE COMMERCIAL PRACTICES ACCORDING TO UNFAIR COMMERCIAL PRACTICES DIRECTIVE
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Abstract
After the adoption of Unfair Commercial Practices Directive EU consumer law acquis was complemented by a legal act ensuring consumer protection from unfair commercial practices, which was based on total harmonisation principle. This legal instrument introduces a special fairness assessment mechanism of commercial practices, which has a threefold structure and consists of a general prohibition against unfair commercial practices, specific prohibitions against misleading and aggressive practices (as concrete types of unfair commercial practices), and a blacklist of practices that will be deemed unfair in all circumstances. In such a way the text of Directive 2005/29/EC provides general clauses, more concrete norms and, finally, ends up with a list introducing concrete proscriptions.
The aim of this article is to analyse prohibition against aggressive commercial practices as one of the forms of unfair commercial practices. Having in mind that Unfair Commercial Practices Directive under its terms prohibits aggressive actions in respect of consumers, in this article pursuing greater legal clarity the particular attention is focused on the analysis of Directive 2005/29/EC provisions, specifically the concept of aggressive commercial practices, the ways in which aggressive commercial practices can be realised; additional circumstances, which have to be taken into account when assessing the aggressiveness of a concrete commercial practice; lastly discussing the concrete cases of unfair commercial practices provided by the blacklist. Together the relationship between the norms introducing the prohibition of aggressive commercial practices and the other provisions of the Directive are briefly examined.
Eventually, the article analyses national case law and practice of State Consumer Rights Protection Authority performing alternative consumers’ disputes resolution, highlighting one of the most relevant problematic aspects when applying provisions prohibiting aggressive commercial practices – their novelty, complexity and application of general concepts often determines that in practice these provisions are applied inactively, there are not many examples of application. Because of that at the end of this article after summarizing the main results of the research, together with the main conclusions the author seeks to give guidance and suggestions for national courts and consumer protection institutions in order to improve national practice in this field.
The aim of this article is to analyse prohibition against aggressive commercial practices as one of the forms of unfair commercial practices. Having in mind that Unfair Commercial Practices Directive under its terms prohibits aggressive actions in respect of consumers, in this article pursuing greater legal clarity the particular attention is focused on the analysis of Directive 2005/29/EC provisions, specifically the concept of aggressive commercial practices, the ways in which aggressive commercial practices can be realised; additional circumstances, which have to be taken into account when assessing the aggressiveness of a concrete commercial practice; lastly discussing the concrete cases of unfair commercial practices provided by the blacklist. Together the relationship between the norms introducing the prohibition of aggressive commercial practices and the other provisions of the Directive are briefly examined.
Eventually, the article analyses national case law and practice of State Consumer Rights Protection Authority performing alternative consumers’ disputes resolution, highlighting one of the most relevant problematic aspects when applying provisions prohibiting aggressive commercial practices – their novelty, complexity and application of general concepts often determines that in practice these provisions are applied inactively, there are not many examples of application. Because of that at the end of this article after summarizing the main results of the research, together with the main conclusions the author seeks to give guidance and suggestions for national courts and consumer protection institutions in order to improve national practice in this field.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
