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Unfair Commercial Practices and the New Member States

An analysis of the existing national laws on unfair commercial practices between business and consumers in the new Member States

The recently produced report on Unfair Commercial Practices and the new Member States was coordinated by Professor Cees van Dam and Ms Erika Budaite of the British Institute of International and Comparative Law and was submitted to the European Commission in October 2005. It was compiled between December 2004 and September 2005 by a group of academics and practitioners from the ten new EU Member States and commissioned by the Directorate-General Health and Consumer Protection of the European Commission (DG SANCO).

The report provides an analysis of the existing national rules, including case law, on unfair commercial practices between businesses and consumers in the ten new Member States. It complements the Analysis of National Fairness Laws Aimed at Protecting Consumers in Relation to Commercial Practices, coordinated by Prof. Dr. Reiner Schulze and Prof Dr Hans Schulte-Nolke. This analysis was published on the EU website in June 2003.

However, the focus of the reports is slightly different. The 2003 Report was carried out to aid the Commission in the preparation of a possible European legal framework on fair commercial practices. This report aims to assist the European Commission in supervising the implementation by the Member States of the Directive on Unfair Commercial Practices which was adopted (June 2005) when this research was carried out.

The BIICL report consists of two parts. The second part of the study sets out the National Reports which provide more detailed information on the national laws on commercial fairness in several Member States. The first part contains a comparative analysis of the national laws on unfair commercial practices between business and consumers and brings together the relevant information from the Member States. It does so in three chapters.

The first chapter will deal with general provisions on unfair commercial practices. It provides an overview of the legislation by which the current business-to-consumer Directives have been transposed into national law, of the national frameworks on unfair commercial practices, the question whether there is a general clause regarding these practices, definitions of consumers, traders and the like, as well as an overview of cases, decisions and codes of conduct.

The second chapter covers provisions on specific issues such as misleading and comparative advertising, aggressive practices, distance marketing and selling, face to face marketing, price reduction techniques, information requirements and after sales practices.

The third chapter sets out the main obstacles for implementation of the Directive and suggests possible means by which the Directive could be implemented into national law. In addition, this chapter gives an overview of the existing differences in sanctions and enforcement and highlights the nexuses between the law on unfair commercial practices and several other fields of law.

These analyses are followed by brief summaries of the state of affairs in the Member States concerning the particular issue.

The report will be published after authorisation by the European Commission.

For any further information, please contact Professor Cees van Dam.

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