¹ COM(2003)356 final (hereafter referred to as ‘Unfair Commercial Practices’ Directive Proposal). Meanwhile, the Proposal has been discussed in the European Parliament and in the Council. The European Parliament adopted the Proposal only subject to massive (more than 100 proposed) amendments (cf the Legislative Decision Doc A5-0188/2004 of 20 April 2004). In the Council, meanwhile a political agreement has been reached (cf Council Doc 9667/04 of 25 May 2004), although a common position has not been formulated to date (October 2004). However, the adoption of a common position can be expected very soon. If this were formulated along the lines of the political agreement, it would change the basic principles of the present Proposal, which is discussed in this paper. Namely, the country of origin rule (in its private international law formulation) was not accepted on political grounds by the Council, and has been cancelled entirely. Moreover, in broad areas, during a transitional period a principle of minimum harmonisation would replace the present principle of full or exhaustive harmonisation in the Directive. This partly reflects the criticisms put forward in the following chapter. However, if a principle of minimum recognition in the final version of the Directive, it must be seriously doubted whether the future Directive could effectively achieve its harmonisation goals. Moreover, another fatal flaw of the Directive (the limitation of its scope to B2C-relationships) has not been corrected in the Council, although several Member States proposed amendments to that end. These actual developments could not be taken into account in the present version of this chapter due to technical restrictions in correcting the proofs. Consequently, the paper is limited to a discussion of the Commission’s original Proposal. However, in particular the submitted criticism of the limited scope of a future B2C-Unfair Commercial Practices Directive is still relevant with respect to the Common Position, which can be expected shortly.

² COM(2001)531 final.

³ COM(2002)289 final.

⁴ Amended Proposal for a Regulation Concerning Sales Promotions in the Internal Market, COM(2002)585 final (hereafter referred to as ‘Sales Promotions Regulation Proposal’).

⁵ COM(2003)443 final.

⁶ For comprehensive overviews in German language, see Dethloff, N Europäisierung des Wettbewerbsrechts (Tübingen, Mohr Siebeck, 2001)Google Scholar; Hucke, A, Erforderlichkeit einer Harmonisierung des Wettbewerbsrechts in Europa (Baden-Baden, Nomos, 2000)Google Scholar.

⁷ Namely in France (besides the specific regulations in the Code de la consommation) the central role in unfair competition law actions is played by general tort law, ie the general clauses of Art 1382 and Art 1383 Code civil. The situation is similar in the Netherlands, Italy and Portugal. Moreover, it should be mentioned that—insofar similarly to the United Kingdom and Ireland—in Italy and the Netherlands a particularly strong system of self-regulation has developed.

⁸ This concept is followed in Germany, Austria, Belgium, Luxemburg, Spain, Greece as well as in Sweden, Denmark, and Finland. However in these latter (Nordic) countries the concept of unfair competition law has a more administrative character than in the former countries (see in the following text). Moreover, apart from the similarities in the fundamental concept of unfair competition, there exist of course substantial differences between the laws in these countries. Thus, in some countries, such as Finland, two different laws deal with the protection of consumers and the protection of competitors against unfair competition. In many countries, apart from the unfair competition law, specific consumer protection acts deal with instruments of consumer protection in particular, which latter in some cases partly overlap with the laws on unfair competition. For example, in Spain even three instruments co-exist, namely besides the Ley de Competencia Desleal (which deals with unfair competition), the Ley General de la Publicidad (which regulates more specifically the field of advertising), and the Ley General para. la Defensa de lo Consumidores y Usarios (which deals with consumer protection law).

⁹ Even an individual action for consumers who are damaged by an act of unfair competition exists in Spain. The respective provision, however, has been of little practical impact. In the pending reform of the German Act against Unfair Competition, a new provision will be introduced which foresees the possibility for a collective action (of consumer organisations) for restitution of unlawful gains out of acts of unfair competition. For a short critique of that approach Leistner, M and Pothmann, J ‘E-Mail-Direktmarketing im neuen europäischen Recht und in der UWG-Reform’ (2003) Wettbewerb in Recht und Praxis, 815; for a comprehensive overview of the pending reform, as compared to the European harmonisation initiatives, see Köhler, H and Lettl, L ‘Das geltende europäische Lauterkeitsrecht, der Vorschlag für eine EG-Richtlinie über unlautere Geschäftspraktiken und die UWG-Reform’ (2003) Wettbewerb in Recht und Praxis, 1019.

¹⁰ This is because in the Nordic countries (meanwhile with the exception of Sweden where a direct action for competitors has been introduced in 1996) only the Konsumentombudsmannen has the right, on its own initiative or upon complaint of competitors or consumers, to prohibit acts of unfair competition, to impose sanctions, and to enforce these measures by way of court injunctions, while unfair competition is generally not actionable for competitors before the courts. This predominant rule of the Konsumentombudsmannen leads to an administrative enforcement system which is fundamentally different from the system in the other continental European member states.

¹¹ The trinity of objectives of unfair competition law is a concept which was originally developed in German case law, see eg Federal Supreme Court Suwa, (1957) Gewerblicher Rechtsschutz und Urheberrecht (GRUR), 365 at 367. Meanwhile it has also found its way into European secondary law of unfair competition. Art 1 of the Misleading Advertisements Directive (see below n 27) provides for the threefold objective of the Directive, ie consumer protection, the protection of traders or other businesses, and the protection of the general public interest in preventing misleading advertisements.

¹² In its traditional form the tort of passing off provides for the principle that ‘nobody has the right to represent his goods as the goods of somebody else’ (Reddaway v Benham [1906] AC 199 HL). Therefore, the three main elements of the traditional form of a ‘passing off’ action are, first, goodwill or reputation attached to the product of the claimant, secondly, a misrepresentation by the defendant to the public leading or likely to lead the public to believe that products offered by him are products of the claimant, thirdly, which results or is likely to result in a damage to the claimant by reason of the erroneous belief of the public regarding the source of the defendant´s products (see the reformulation of the ‘classic’ definition of passing off per Lord Oliver in the Jif Lemon case, Reckitt & Coleman v Borden [1990] RPC 341 HL). It can be seen clearly that the ‘passing off’ action under English law is based much more clearly on misrepresentation, and direct damage to competitors (closely connected with the element of goodwill) than the much broader forms of unfair competition under continental European systems. However, common law has also developed an extended form of ‘passing off’. In this extended form, the action can apply more generally to acts of misrepresentation which injure another trader´s goodwill or reputation. (See the authoritative modern formulation of passing off in the Advocaat case per Lord Diplock, Warnink v Townend [1980] RPC 31:

While this paves the way for applying the tort of ‘passing off’ to the protection of whole classes of products (as in the Champagne cases, see the Spanish Champagne- cases, Bollinger v Costa Brava [1960] RPC 16 and Taittinger SA v Allbev Ltd [1993] FSR 641, CA; as well as the English Sherry case, Vine Products v Mackenzie, [1969] RPC 1) or even more generally to indications of origin (as in the Swiss Chocolate cases, see Chocosuisse v Cadbury, [1999] RPC 117 per Laddie J; followed by Chocosuisse v Cadbury [1999] RPC 826 CA), still the need of damage to some kind of goodwill of the claimant remains a crucial condition of a ‘passing off’ action. Hence, although the action has developed into a somewhat broader concept of ‘unfair competition’ (see the obiter dictum per Clarke LJ on passing off in the Arsenal- case [2003] RPC 39) in the sense that a more general protection against misleading of consumers which damages the goodwill of another trader is delivered, it has not however—as in the continental European countries—developed into a more general protection against misleading advertising as such, independent of the element of direct damage to a specific competitor. See remarkably clear BBC v Talksport [2001] FSR 6.

¹³ The main body of self-regulation is the Committee of Advertising Practices (CAP), composed of the main advertising, marketing and media associations. The CAP formulates and actualises the so called CAP-Code (British Code of Advertising, Sales Promotion and Direct Marketing, in its present (unified) version of 2003). Decisions upon complaints of competitors or customers under the CAP-Code are made by the independent Advertising Standards Authority (ASA), which is composed of representatives of businesses and consumer associations. See further on the self-regulation system, Miracle, G and Nevett, T Voluntary Regulation of Advertising (Toronto, Lexington, 1987)Google Scholar; Harvey, BW Law of Consumer Protection and Fair Trading (London, Butterworths, 2000)Google Scholar.

¹⁴ See above n 13.

¹⁵ See for a recent German comparative law perspective on the English selfregulation system Jergolla, M Die Werbeselbstkontrolle in Großbritannien (Frankfurt am Main, Peter Lang, 2003)Google Scholar.

¹⁶ With the exception of the administrative system in the nordic countries, see above n 10.

¹⁷ See eg cl 61 CAP-code on sanctions.

¹⁸ SI 1988, No 915 (hereafter referred to as Control of Misleading Advertisements Regulations 1988).

¹⁹ Director General of Fair Trading v Tobyward Ltd and Another, [1989] 1 WLR 517.

²⁰ See above n 19.

²¹ However, it should be carefully noted that this brief analysis and the relative convergence of standards are restricted to the field of advertising regulation. There remains, of course, a crucial difference as to the role of unfair competition in the field of IP-protection. In short it can be said that, while in practice in Germany, as in many continental European Member States, unfair competition law protection against imitations has developed into a flexible protection system for creative products which do not qualify for exclusive IP-protection, in England the action of passing off (even in its extended form) does not provide for a comparably comprehensive protection system. This problem can not be discussed here, and is of little relevance in the present context, as the Directive proposal clearly does not deal with this aspect of unfair competition (see Explanatory Memorandum at para 40). See for a brief overview of this more substantial difference between the English and the continental European system Leistner, L ‘Unfair competition law protection against imitations—A hybrid under the future Art 5 “Rome II”-Regulation?’ in Basedow, J, Drexl, J Kur, A and Metzger, A (eds) Intellectual Property in the Conflict of Laws (Tübingen, Mohr Siebeck, 2004 forthcoming)Google Scholar.

²² See also the brief overview by Glöckner, J ‘Think Big! Some Remarks on the European Commission’s Green Paper on Consumer Protection‘ available at http://europa.eu.int/…/cons_int/safe_shop/fair_bus_pract/green_pap_comm/responses/others/jochen_glockner.pdf (site visited 26 April 2004).

²³ Then the Institute was still part of the University of Munich.

²⁴ Ulmer, E (ed) Das Recht des Unlauteren Wettbewerbs in den Mitgliedstaaten der Europäischen Gemeinschaft: Gutachten, erstattet im Auftrag der Kommission der Europäischen Wirtschaftsgemeinschaft (Munich, Beck, 1965)Google Scholar.

²⁵ Thus, while the Ulmer study submitted the proposal of a collective action for competitors, it would still hesitate to propose a correspondent collective action for consumers, see above n 24 at para 399. See also Schricker, G and Henning-Bodewig, F ‘Elemente einer Harmonisierung des Rechts des unlauteren Wettbewerbs in der Europäischen Union’ (2001) Wettbewerb in Recht und Praxis, 1367 at 1372.

²⁶ Besides the increasing importance of the consumer protection policy in the 1970s, it was particularly an internal shift of competences for the project to the Directorate General for Consumer Protection, which brought about the acknowledgement of the consumer protection objective in European unfair competition law. See Glöckner, J above n 22.

²⁷ Directive 84/450 of 10 September 1984, in the version of Directive 97/55 of 6 October 1997, OJ L 290 of 23 October 1997, at 18f (hereafter referred to as the Misleading Advertisements Directive).

²⁸ Art 1 Misleading Advertisements Directive.

²⁹ This is illustrated by the fact that only one case was referred to the ECJ for a preliminary ruling on the interpretation of the Directive, ie the Nissan case (see below n 69). By contrast the case law on the justifiability of national laws, regarding misleading marketing practices under the Cassis de Dijon formula is numerous, see below n 34 for a non-comprehensive overview.

³⁰ See above n 27.

³¹ See ECJ Case C–44/01 (Judgment of 8 April 2003) Pippig Augenoptik GmbH & Co KG v Hartlauer Handelsgesellschaft mbH available at http://europa.eu.int/eur-lex/en/, at para 44. For a comprehensive analysis of the Misleading Advertisements Directive as amended by the Comparative Advertisements Directive, and of its implementation in the United Kingdom and Germany see Ohly, A and Spence, A The law of comparative advertising: Directive 97/55/EC in the United Kingdom and Germany (Oxford, Hart Publishing, 2000)Google Scholar.

³² See eg Weatherill, S EC Consumer Law and Policy (London and New York, Longman, 1997), 36fGoogle Scholar.

³³ See for a similar interpretation of the Court’s case law, Weatherill, S above n 32, at 57f.

³⁴ See for example Cases C–470/92 Mars [1995] ECR I–1923; C–210/96 Gut Springenheide v Oberkreisdirektor des Kreises Steinfurt [1998] ECR I–4567. However, account can be taken of ‘social, cultural or linguistic factors’ in the Member States, Case C–220/98 Estée Lauder Cosmetics GmbH v Lancaster Group (Lifting Creme) [2000] ECR I–117; as well as of specifically vulnerable sub-groups of consumers which an advertisement reaches, see Case 382/87 Ministère Public v Buet [1989] ECR 1235, para 13.

³⁵ Additionally, of course, the European court of justice has at several occasions put the fundamental rights of the ECHR into the balance of values since they constitute general principles of Community law (see eg Vereinigte Familiapress Zeitungsverlag- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I–3689). With respect to advertising, the fundamental right to freedom of expression (Art 10 ECHR) may be of special importance, as it also applies to commercial advertising activities, see the respective case law of the European Court of Human Rights (Casado Coca Series A No 285 at para 37, 51; Groppora, Series A No 173 at para 55).

³⁶ Joined Cases C–267/91 and C-268/91 Keck and Mithouard [1993] ECR I–6097.

³⁷ Case C–384/93 Alpine Investments [1995] ECR I–1141, concerning Art 59 (now: 49) EC Treaty.

³⁸ Case C–254/98 Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH [2000] ECR I–151.

³⁹ Case C–405/98 Konsumentombudsmannen v Gourmet International Products [2001] ECR I–1795.

⁴⁰ The choice of law practice regarding unfair competition in most of the Member States provides for the applicability of the laws of all the countries where a certain act of unfair competition has a direct and substantial impact on the market (so called market effects doctrine). This result is obtained either on the basis of the general private international law rule on the choice of lex loci delicti, or on the basis of some special provision of private international law. The same doctrine is foreseen in Art 5 of the ‘Rome II’ Regulation Proposal on the Law Applicable to Non-contractual Obligations (COM(2003)427 final, of 22 July 2003). In cases of Union-wide multi-state advertising or marketing campaigns, eg in the Internet or in cross-border television, it confronts the advertising businesses and traders with the potential applicability of the laws of all the Member States where the advertisements reaches a substantial number of customers. See, for further on the new European choice of law rules in the field of unfair competition Leistner, M above, n 21.

⁴¹ Art 3 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market, OJ EC 2000 L 178/1 (hereafter referred to as E-Commerce Directive).

⁴² Only Art 3 (4)–(6) E-Commerce Directive foresee a complicated procedure (including notification requirements) for measures by the Member States which result in restrictions on the basic freedoms, but are urgent and justified by fundamental interests of ordre public. This procedure has its main impact regarding legislation; in legal practice it will remain of little relevance.

⁴³ Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities ([1989] OJ L 298, 23 17 October 1989), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 ([1997] OJ L 202, 60).

⁴⁴ See the clear ruling of the ECJ in the De Agostini -case, ECJ, joined Cases C–34/95, C–35/95, C–36/95, Konsumentombudsmannen (KO) v De Agostini (Svenska) and others, [1997] ECR I–3843, paras 24f (32–4).

⁴⁵ See Art 2 lit (h) E-Commerce Directive.

⁴⁶ Glöckner, J above n 22.

⁴⁷ Which shall not be discussed here in detail.

⁴⁸ See also below section IV.

⁴⁹ See Unfair Commercial Practices Directive Proposal—Explanatory Memorandum, at 1.

⁵⁰ See for a comprehensive overview of the consumer protection policy of the European Union, and the concepts underpinning it, Weatherill, S ‘Consumer Policy’ in Craig, P and De Búrca, G (eds) The Evolution of EU Law (Oxford, Oxford University Press, 1999)Google Scholar.

⁵¹ See eg Recital 3 and 4 of the Unfair Commercial Practices Directive Proposal. See from a German point of view Köhler, H and Lettl, L above n 9, para 54.

⁵² Further examples will be given below at section III C.

⁵³ See Explanatory Memorandum at paras 39, 42.

⁵⁴ See Art 3(1), Art 5, Art 2(a) and (e) Unfair Commercial Practices Directive Proposal.

⁵⁵ See Art 3(5), Art 14 Unfair Commercial Practices Directive Proposal.

⁵⁶ See Köhler, H and Lettl, L above n 9, para 67.

⁵⁷ See the compilation of the relevant Directives in this field Köhler, H and Lettl, L above n 9, para 61.

⁵⁸ See eg Hultmark Ramberg, C ‘The E-Commerce-Directive and Formation of Contract in a Comparative Perspective’ (2001) 26 ELR 429, regarding the E-Commerce DirectiveGoogle Scholar.

⁵⁹ See also below section III B 3.

⁶⁰ See above II B 2.

⁶¹ See for a comprehensive view on that issue Leistner, M in J Drexl and Kur, A (eds), IP and Private International Law—Heading for the Future (forthcoming).

⁶² See Explanatory Memorandum, at para 52.

⁶³ See Explanatory Memorandum, at para 53.

⁶⁴ See above n 34.

⁶⁵ See Explanatory Memorandum, at para 52.

⁶⁶ See Art 5(4) Directive Proposal.

⁶⁷ See also the even broader provision in Art 12 Directive Proposal and Explanatory Memorandum, at para 69.

⁶⁸ See explicitly Explanatory Memorandum, para 57.

⁶⁹ See the Nissan case, Case C–373/90 Criminal Proceedings against X [1992] ECR I–131.

⁷⁰ Actually, in this list the information requirements following from Art 13(2) and (4) of the Privacy and Electronic Commerce Directive are missing. This is probably a mere editorial fault. The Directive has presumably been overlooked by the drafters of the proposal, because its provisions have also been neglected, as regards the issue of (aggressive) direct marketing via voicemail, fax or e-mail. See below III C 3 and n 77.

⁷¹ See Hultmark Ramberg, C above n 58.

⁷² See Köhler, H and Lettl, L above n 9, paras 89–91.

⁷³ See Art 3a Misleading Advertisements Directive.

⁷⁴ See Köhler, L and Lettl, L above n 9, para 91.

⁷⁵ See below section IV.

⁷⁶ Although the Explanatory Memorandum, at para 71 tries to elaborate further on that concept, namely stressing by way of some examples the distinction between (illegal) threats, and the mere offering of additional possibilities and choices. Actually, this definitional attempt seems of little help, as it merely reiterates the old ‘baseline’ problem, concerning the problem against which baseline (of options and possibilities) the question, if a certain offer has to be regarded as an additional possibility or option, or as an undue threat, should be assessed.

⁷⁷ Directive 2002/58/EC Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (Directive on Privacy and Electronic Communications), [2002] OJ L 201/37 (hereafter referred to as Privacy and Electronic Commerce Directive).

⁷⁸ See Annex 1 No 3 which only prohibits such techniques on the condition that they are used in a persistent way.

⁷⁹ This is because Art 13 (3) Privacy and Electronic Commerce Directive is not a typical minimum clause (which according to para 30 Explanatory Memorandum would no longer remain applicable in the field coordinated by the Directive Proposal), but foresees itself a positive obligation of the Member States to provide for protection against individual telephone marketing, and in this context explicitly leaves the Member States the possibility to choose between the two options of Art 13 (3). See correctly Köhler, H and Lettl, L above n 9, paras 113–15.

⁸⁰ Explanatory Memorandum, at para 75.

⁸¹ See also Annex 1 para 1 which foresees that the untruthful claim to be a signatory to a code of conduct shall in all circumstances be considered an unfair (misleading) commercial practice.

⁸² Explanatory Memorandum, at para 73.

⁸³ See also Explanatory Memorandum, para 73.

⁸⁴ European Advertising Standards Alliance, founded in 1992.

⁸⁵ See also Köhler, H and Lettl, L above n 9, para 136.

⁸⁶ See Köhler, L and Lettl, L above n 9, para 136.

⁸⁷ See also Explanatory Memorandum, at 77.

⁸⁸ See also Case C–68/88 Commission v Greece [1989] ECR 2965; Explanatory Memorandum, at para 78.

⁸⁹ See Art 4, 5–11 Control of Misleading Advertisements Regulations. See also above section IIA.

⁹⁰ R v Advertising Standards Authority, ex p The Insurance Service plc, [1990] 2 Admin LR 77.

⁹¹ The ratio of Director General of Fair Trading v Tobyward Ltd and Another, [1989] 1 WLR 517 would consequently have to be extended to the whole field of unfair commercial practices, when a system along the lines of the Control of Misleading Advertisements Regulation 1988 was established in this field.

⁹² See Hoffmann, J in the Tobyward (Speedslim) case (above n 91): ‘It is in my judgment desirable and in accordance with the public interest to which I must have regard that the courts should support the principle of self-regulation’.

⁹³ Explanatory Memorandum, at para 30.

⁹⁴ The Commission has tried to tackle this problem by way of the new Regulation Proposal on Consumer Protection Cooperation (Doc COM(2003)443 final). This proposal would establish national competent authorities in the consumer protection and unfair competition law field, and promote their cooperation. Given the fact that in many Member States there is no tradition of administrative enforcement of unfair competition law whatsoever, such an approach, however, will necessarily be of limited effect. Also the Injunctions Directive (Directive 98/27/EC of 19 May 1998 on Injunctions for the Protection of Consumers’ Interests, [1988] OJ L 166/51), which provides the possibility for collective consumer organisations and other ‘qualified entities’ to bring direct actions for injunctions to the courts or administrative authorities in the Member States, has to be mentioned in this respect. Although this Directive goes into the right direction, it has been of remarkable little practical impact in those Member States, which do not have a respective tradition of collective enforcement of unfair competition and consumer protection. This might be because in these countries the degree of consumer organisation necessary, to make a private law enforcement system work, has not been reached yet.

⁹⁵ Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, [2001] OJ EC L 12/1 (hereafter referred to as Jurisdiction and Judgments Regulation).

⁹⁶ See from a German point of view the submissions of Köhler, H and Lettl, L see above n 9, para 137–47. Namely Köhler, H and Lettl, L propose a new (collective) action for restitution of unlawful gains out of acts of unfair competition. This could be enforced either by consumer organisations or by public authorities.

⁹⁷ Notwithstanding the appreciable initiatives of the Commission, attempting to further the cooperation of national authorities in the consumer protection and unfair competition field. See above n 94.

⁹⁸ In Germany, the principle of mutual recognition (country of origin) rule of Art 3 E-Commerce Directive (which was formulated more ambiguous than the new provisions in the Directive Proposal and in the Sales Promotions Regulation Proposal) has triggered considerable discussion on how to interpret and implement ‘country of origin’ provisions in Community secondary law correctly. Simplifying the arguments, two general possibilities are under discussion. The proponents of the ‘choice of law’ approach argue that the principle states a proper choice of law rule, which in the case of more liberal standards in the country of origin, straightforwardly provides for the applicability of the law of the country of origin. Under German law the courts would have to make the therefore necessary assessment of the choice of law problem ex officio. The opponents of this view argue that the principle has rather to be understood in the sense of the ECJ principle of mutual recognition, although not subject to the limitations from Cassis de Dijon and Keck. The consequence of this latter position would be that the courts of the target market State, provided they have jurisdiction (which according to Art 5 (3) Jurisdiction and Judgments Regulation is usually the case), would remain free to apply the established choice of law principles of their country. According to these principles, in most Member States the law of the (target market) countries, in which an act of unfair competition directly and substantially affects the market, would be applied to acts of unfair competition. The principle of mutual recognition (or country of origin rule) would then serve as a ‘eurodefence’, cutting back only over-restrictive standards of the target market law when the trader invokes that the standards in his country are more liberal. The statutory solution which was eventually adopted in Germany in the field of E-Commerce (§ 4 German ‘Teledienstegesetz’ [Teleservices Act] 2001) leaves room for both interpretations. See for an English language overview of the respective discussions with some references Leistner, M above n 61.

⁹⁹ In spite of the harmonisation of this field through the Directive Proposal such differences would remain possible, since the standards of professional diligence may differ from Member State to Member State. According to the proposal, courts in such cases could refer to national standards of professional diligence, however subject to the limitations of Art 4 Directive Proposal in cross-border cases. See also Köhler, H and Lettl, L above n 9, paras 82–8.

¹⁰⁰ See above n 98.

¹⁰¹ A (fictitious) ‘Rover’ advertisement for selling cars in Germany may serve as an example. The advertising or marketing company simply could not know in advance whether the customer who buys the ‘Rover’ in the end is a company or a private consumer.

¹⁰² See Explanatory Memorandum, at para 22.

¹⁰³ See Glöckner, J above n 22.

¹⁰⁴ The particularly contentious issue of unfair competition protection against misappropriation of the investments of a competitor, such as in the actions against slavish imitations under continental European laws, could be explicitly excluded from such a comprehensive Directive, to allow a compromise between the continental European approach and the attitude of the United Kingdom and Ireland regarding that question. See also above n 21.

¹⁰⁵ See Leistner, M above n 615; Leistner, M above n 21.