1. The purpose of this chapter is to assess possible options for the further harmonisation of rules on business-to-business practices. Whereas Directive 2005/29 ('UCPD’) protects consumers against unfair, misleading and aggressive B2C practices, Directive 2006/114/ EC ('MCAD’) protects businesses against misleading B2B advertising. In the first section of this chapter, a critical analysis of this ‘dualistic’ approach underlying the current European law of unfair commercial practices will be presented. In the second section, the Commission's plan to maintain the dualistic approach through a minor revision of the MCAD will be critically assessed. It will be argued that the best way forward would be to amend the scope of the UCPD so as to cover B2C/B2B practices directly connected with the promotion of products. In the third section, the broader issue of the need and desirability of harmonisation of rules concerning unfair business-to-business trading practices will be dealt with.
The current European law on unfair commercial practices
2. The UCPD is a maximum harmonisation directive covering, pursuant to Article 3(1), all ‘business-to-consumer commercial practices (…) before, during and after a commercial transaction in relation to a product.’ The UCPD contains a particularly wide definition of'business-to-consumer commercial practices (hereinafter also reffered to as commercial practices)’: ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. The concept encompasses pre-existing EU concepts such as ‘advertising’ and ‘commercial communication’ and in essence covers all ‘commercial acts which clearly form part of an operator's commercial strategy and relate directly to the promotion thereof and its sales development.’ While the MCAD's definition of ‘advertising’ requires the making of a representation ‘in order to promote the supply of goods or services’, the UCPD does not require that a commercial practice aims at promoting the sale of goods or services. There must be a ‘direct connection with the promotion, sale or supply of a product’ meaning that there must be a direct link between the practice and the main economic modalities determining consumers’ transactional decisions (quality, price, after sale service, and so forth). The concepts of'promotion’, ‘sale’ and ‘supply’ simply denote the pre-contractual, contractual and post-contractual stage. The UCPD establishes what might be called a ‘cradle-to-grave regime’, covering commercial practices at the time of promotion, negotiation, conclusion, performance and enforcement of the contract.