Friday, 11 July 2014

Once again: a uniform protection against unfairness – CJEU judgment in case Commission v Belgium (C-421/12)

The CJEU confirmed yesterday that the Kingdom of Belgium has failed to fulfil its obligations under Articles 2(b) and (d), 3 and 4 of Directive 2005/29 on unfair commercial practices. The judgment in case C-421/12 is in line with the opinion of AG Cruz Villalón, which we have previously discussed. 

According to the CJEU the Directive on unfair commercial practices precludes:
the exclusion of the professions, dentists and physiotherapists from the scope of the national legislation transposing that directive,
- provisions which prohibit a price reduction from lasting for more than a month and provide that announcements of price reductions may not last for less than a day,
- the prohibition, save for certain goods and services, of all door-to-door selling at the home of the consumer for products or services exceeding EUR 250 for each consumer and the prohibition of itinerant trading in certain products, including precious metals and stones and fine pearls.

The reasoning of the CJEU is well known from previous CJEU judgments, e.g. Plus Warenhandelsgesellschaft (C304/08) and Mediaprint Zeitungs- und Zeitschriftenverlag (C540/08). The Court has held that Directive 2005/29 carries out a complete harmonisation at EU level of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers. Accordingly, Member States may not maintain or adopt more restrictive national measures than those laid down in that directive, even where such measures are designed to ensure a higher level of consumer protection. Moreover, Directive 2005/29 establishes, in its Annex I, an exhaustive list of 31 commercial practices which are regarded as unfair ‘in all circumstances’. Only these commercial practices can be deemed to be unfair without proceeding to a case-by-case assessment pursuant to the provisions of Articles 5 to 9 of Directive 2005/29 (paras 55 and 56).

In this case, however, it was the European Commission who decided to bring action against national provision, not a national court asking the CJEU for the interpretation of EU provisions. Member States, be careful!

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