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 (C‑304/08) and Mediaprint Zeitungs- und
Zeitschriftenverlag (C‑540/08). 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!
