As we reported in March this year the European Commission after a thorough examination of the current application of the Unfair Commercial Practices Directive decided to review this Directive in order to, among others, strengthen its enforcement. On 24 June this year the BEUC published its position paper (X/2013/049) with respect to the review of the Directive (and as to the Guidance on how to use/ interpret its provisions).
The BEUC argues the European Commission to rethink certain crucial characteristics of the Directive, such as:
- its full harmonisation character which precludes national bans of unfair practices that are not blacklisted in the Annex to the Directive;
- definitions of 'average consumer' and 'vulnerable consumer' that are being used in the Directive, which may not take into account 'the social and economic reality of consumers and the way they make consumption choices';
- the requirement of professional dilligence used in the unfairness test, since it requires more guidance that has been given as to its concept;
- the scope of the definition of 'consumer' with regards to certain blacklisted practices - such as pyramid schemes whose victims are often natural person acting with a commercial interest;
- the lack of any contract law remedies for consumers;
- the lack of efficient enforcement.
Additionally, the Commission should consider:
- reversing the burden of proof for consumers, e.g., as to proving subjective elements of a certain commercial practice (such as trader's intentions);
- introduction of special rules on protection of children against unfair (online) advertising;
- what is the interplay between this Directive and Audiovisual Media Services Directive