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Enforcing Consumer and Capital Markets Law: The Diesel Emissions Scandal is an international and intradisciplinary work. On the example of one topical and global collective damage event with far reaching consequences for both consumers and investors, this work critically analyses the various approaches of public and private law enforcement and their effectiveness across several jurisdictions, namely those of Austria, Denmark, France, Germany, England and Wales, Italy, Lithuania, the Netherlands, Portugal, Australia, Brazil, China and the United States of America. Based on decided and pending cases, the book demonstrates to what extent public authorities, but also private claimants, can take effective steps against the violation of their rights in their respective jurisdictions. The following is examined: law enforcement by public institutions, law enforcement by private parties and overlaps as well as hybrids and connections between both areas. A particular focus is given to collective redress, that is representative actions and model case proceedings. Comments from renowned practitioners sharing their experiences are included throughout the book. Separate concluding comparative chapters have two different aims: A comparative analysis of the legal solutions with a supranational European Union level focus provides invaluable insights into best practices and effectiveness. In addition, an intradisciplinary comparison assesses and evaluates the effectiveness of consumer law vs capital markets law mechanisms. Furthermore mechanisms of competition law and company law are taken into account.
The status quo of legal harmonization in unfair competition law
Lack of a ‘European unfair competition law’
European integration is making progress; the European Constitution Treaty has been passed and scholars are discussing a European Civil Code. In the field of unfair competition law only few directives exist and one is tempted to use F. Rittner's words which he once used to describe the law of contract: European directives create only ‘islands’ of harmonized law within each national law that exist without any connection between them. Accordingly the law of unfair competition is still based on many origins and very often overlaps with the law of consumer protection, contract and intellectual property.
Nowadays all modern legal systems offer protection against unfair competition, i.e. against ‘any act of competition contrary to honest practices in industrial or commercial matters’, in short against ‘dirty tricks’. Because of the differing traditions in the Member States the enforcement of infringements of unfair competition law has only been harmonized marginally. In the different European directives courts and administrative agencies are equally named as competent for enforcement. Moreover, an additional self-control is allowed. This form of harmonization leaves everything as it was before. The sanctions are numerous and as disparate as the provisions dealing with material aspects.
Case 1 Risky bread: order to cease and desist, elimination, publication
A is a baker. He advertises his products as being particularly environmentally friendly. At the same time he claims that his competitor B sells bread with additional ingredients whose risks have not yet been analysed sufficiently. Therefore, it would be very risky to eat the bread offered by B. A has also printed advertisements stating these claims.
In which way can one prevent A from publishing this misleading advertisement in the future?
Assuming that the risks posed by the additional ingredients used by B cannot be proven, A's advertisement is a depreciatory comparative advertisement since A combined his allegations with the advertisement for his own product, allegedly particularly free from harmful substances. This advertisement can also be misleading, if A's bread is actually free from harmful substances in order to comply with law relating to food and drugs. If this is the case, it would be an advertisement stating obvious facts. Where comparative advertisement is concerned the advertiser bears the burden of proof for the statements of fact contained in the advertisement (§ 2 para. 5 UWG). This is congruent with the burden of proof in § 7 UWG: the plaintiff only has to prove the allegation (circulation) of the harmful facts, whereas the defendant – comparable to § 111 f StGB – has to prove the truth of his allegations.