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18 - Unfairness under the Consumer Protection from Unfair Trading Regulations 2008

from PART II - Conceptualising unconscionability in financial transactions

Published online by Cambridge University Press:  06 August 2010

Mel Kenny
Affiliation:
University of Leicester
James Devenney
Affiliation:
University of Durham
Lorna Fox O'Mahony
Affiliation:
University of Essex
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Summary

Introduction

The Unfair Commercial Practices Directive (UCPD) was adopted in 2005 and requires Member States to empower bodies to take preventive action against unfair business-to-consumer practices. This has been implemented in the UK by the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008, which define such practices as forms of ‘Community infringement’ under the Enterprise Act (EA), thereby providing enforcement authorities with the powers to seek enforcement orders against such practices. This now coexists with the pre-existing powers to seek enforcement orders against other practices that represent ‘Community infringements’ and those that represent ‘domestic infringements’.

This chapter considers the concept of unfairness in the CPUTR, in particular what it adds to regulatory ideas of unfairness in the financial services sector.

The regime clearly catches financial service transactions, covering commercial transactions in relation to ‘any goods or service including immovable property, rights and obligations’. Indeed, financial services transactions are given special treatment, in that they are excluded from the ‘internal market clause’, which, when applicable, will prevent Member States from exceeding the level of protection provided for in the Directive. It is expressly provided by Article 3 (9) that in relation to ‘financial services’:

Member States may impose requirements which are more restrictive or prescriptive than this Directive in the field which it approximates.

Coverage, regulatory context and the general notion of unfairness

The UCPD unfairness concept is of particular importance because of the sheer range of activities it regulates within any given transaction.

Type
Chapter
Information
Unconscionability in European Private Financial Transactions
Protecting the Vulnerable
, pp. 350 - 374
Publisher: Cambridge University Press
Print publication year: 2010

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References

Bernitz, U. and Weatherill, S. (eds.), The Regulation of Unfair Commercial Practices under EC Directive 2005/29: New Rules and New Techniques (Oxford: Hart Publishing, 2007)
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