New Search Search History

Holdings Information

Jumpbar Result Navigation

Action Navigation

Action Box More Info Navigation

    Action Box

    The new European law of unfair commercial practices and competition law / Bert Keirsbilck.

    Bibliographic Record Display

    • Title:The new European law of unfair commercial practices and competition law / Bert Keirsbilck.
    •    
    • Author/Creator:Keirsbilck, Bert.
    • Published/Created:Oxford ; Portland, Or. : Hart Pub., 2011.

    • Holdings

      Holdings Record Display

       
    • Library of Congress Subjects:Competition, Unfair--European Union countries.
      Trade regulation--European Union countries.
    • Genre/Form: Handbooks and manuals.
    • Description:lxiii, 702 pages ; 25 cm.
    • Summary:"Presents the first comprehensive and critical examination of Directives 2005/29/EC concerning unfair business-to-consumer commercial practices and 2006/114/EC concerning misleading and comparative advertising. The book offers the first detailed analysis of the various ways in which the two Directives have been transposed in the United Kingdom, Germany, the Netherlands, Belgium and France, with a particular focus on incorrect transposition. The analysis includes an overview of the enforcement possibilities before national courts and authorities, and as such will be a valuable source for all practitioners, policy makers and academics working in the field of unfair trade law"--Page [i].
    • Notes:Includes bibliographical references (pages [643]-695) and index.
    • ISBN:9781849461849
      1849461848
    • Contents:Machine generated contents note: pt. 1 `Fair Trading' and `Consumer Protection' in EU Law before the Adoption of the UCP Directive
      1. Negative Integration in the Field of `Fair Trading' and `Consumer Protection'
      I. Case law before Keck and Mithouard
      II. Case law after Keck and Mithouard. National product requirements versus national restrictions or prohibitions of certain selling arrangements
      A. Keck and Mithouard
      B. Selling arrangements
      C. National product requirements
      III. Case law after De Agostini
      A. Severe restriction or total prohibition of a certain selling arrangement
      B. Other restrictions or prohibitions of a certain selling arrangement
      IV. Constitutive parts of a general prohibition of unfair commercial practices in ECJ case law before the adoption of the UCP Directive
      2. Positive Integration in the Field of `Consumer Protection' and `Fair Trading'
      I. Horizontal directives
      A. Misleading and Comparative Advertising Directive
      1. Misleading advertising
      2. Comparative advertising
      B. Price Indication Directive
      C. Services Directive
      D. General contract law directives
      II. Vertical directives
      A. Particular selling method
      B. Particular medium
      C. Particular goods or services
      III. Constitutive parts of a general prohibition of unfair commercial practices in consumer protection directives before the adoption of the UCP Directive
      3. Pre-contractual Information Requirements
      I. EU information requirements and the long path towards a more coherent European contract law
      II. Information requirements in the Draft Common Frame of Reference
      III. Information requirements in the Proposal for a Directive on Consumer Rights
      IV. Conclusion
      pt. 2 Towards a Single Regulatory Framework on Unfair Commercial Practices?
      4. European and National Unfair Trade law reform
      I. European unfair trade Law Reform
      A. UCP Directive
      B. MCA Directive
      C. UCP Proposal 2011
      II. National unfair trade reform
      A. National unfair trade laws before the implementation of the UCP Directive
      1. English law
      2. German law
      3. Dutch law
      4. Belgian law
      5. French law
      B. Transposition of the UCP Directive into national laws
      1. Transposition into English law
      2. Transposition into German law
      3. Transposition into Dutch law
      4. Transposition into Belgian law
      5. Transposition into French law
      C. Sanctions in case of incorrect or untimely implementation
      5. Legal Basis and Harmonisation Technique
      I. Legal basis
      A. Ex Article 95 EC (Article 114 TFEU)
      1. need for further harmonisation
      2. High transaction costs for business
      3. Low consumer confidence
      4. Ex Article 95 EC (Article 114 TFEU) as the legal basis
      B. Ex Article 153 EC (Article 169 TFEU) and achieving a high level of consumer protection
      II. Maximum harmonisation framework directive
      A. Framework directive (horizontal approach) versus sector-specific directives (vertical approach)
      1. Principle
      2. Complex relationship of UCP Directive with sector-specific EU unfair trade provisions
      a. Article 3(4) UCP Directive
      b. Complex relation with the (repealed) (vertical) SP Proposal
      c. Complex relation with the (horizontal) Services Directive
      3. UCP Proposal 2011
      B. Maximum versus minimum harmonisation
      1. Principle
      2. Justifications for maximum harmonisation in the UCP Directive
      a. In general
      b. Eliminating transaction costs for business
      c. Creating consumer confidence
      3. Explicit exceptions to the UCP Directives maximum harmonisation character
      a. Relationship with EU Directives containing a minimum harmonisation clause 167
      b. Financial services and immovable properly
      4. UCP Proposal 2011
      III. UCP Directive's Internal Market clause
      A. Article 4 UCP Proposal
      1. Home country control and mutual recognition
      2. `Race to the bottom' prevented by maximum harmonisation?
      3. Private international law
      B. Article 4 UCP Directive
      1. After the deletion of Article 4(1) UCP Proposal
      2. Towards a conflict-of-law rule regarding non-contractual obligations arising out of unfair commercial practices
      a. Article 6(1) and (2) Rome II Regulation: `unfair competition
      b. Article 6(3) Rome II Regulation: `acts restraining competition
      C. UCP Proposal 2011
      6. Scope of Application
      I. `Commercial practice' and `(comparative) advertising'
      A. `Advertising' and `comparative advertising'
      1. European and national definitions
      2. More detailed analysis
      B. `Commercial practice`, a new EU concept with a deep impact on national unfair trade laws
      1. European and national definitions
      2. More detailed analysis
      a. Commercial communication and course of conduct
      b. Direct connection with the promotion, sale or supply of a product to consumers
      3. Sales promotions in Belgium and France
      C. Comparative conclusion
      D. UCP Proposal 2011
      II. `Trader', consumer' `product'
      A. `Trader'
      1. European and national definitions
      2. More detailed analysis
      B. `Consumer'
      1. European and national definitions
      2. More detailed analysis
      C. `Product'
      D. Comparative conclusion
      E. UCP Proposal 2011
      III. Business-to-consumer and/or business-to-business
      A. B2C/B2B commercial practices
      B. Protection of collective economic interests of market participants
      C. Critical analysis
      D. Safeguarding the integrated approach?
      E. Comparative conclusion
      F. UCP Proposal 2011
      IV. Before, during and after a commercial transaction
      A. Article 3(1) UCP Directive
      1. European and national provisions
      2. Analysis
      B. Article 3(2) UCP Directive: relation to contract law
      brief overview
      C. UCP Proposal 2011
      V. Some delimitations
      A. Health and safety
      B. Taste and decency
      C. Additional delimitations
      D. UCP Proposal 2011
      7. Unfair Commercial Practices
      I. Unfair B2C commercial practices
      A. European and national grand general clauses
      B. More detailed analysis
      1. `Contrary to the requirements of professional diligence'
      a. European concept of `professional diligence'
      b. European conception of the concept of `professional diligence'?
      2. `To materially distort the economic behaviour of the average consumer'
      a. Two components
      1. Using a commercial practice to appreciably impair the consumer's ability to make an informed decision
      2. Thereby causing the consumer to take a transactional decision that he would not have taken otherwise
      b. benchmark consumer
      1. Situation where a commercial practice targets or reaches the generality of consumers
      2. Situation where a commercial practice is (specifically) targeted at a particular group
      3. Article 5(3) UCP Directive
      C. grand general clause within the broader framework of the UCP Directive
      D. Comparative conclusion and UCP Proposal 2011
      1. Comparative conclusion
      2. UCP Proposal 2011
      II. Unfair B2B commercial practices
      A. Diverging general prohibitions of unfair B2B competition
      B. UCP Proposal 2011
      C. Categories of unfair B2B competition
      1. Imitation by misrepresentation; misappropriation
      a. UCP Directive and MCA Directive
      b. National rules
      c. UCP Proposal 2011
      2. Disparaging or denigrating a competitor
      a. MCA Directive
      b. National rules
      c. UCP Proposal 2011
      8. Misleading B2C Actions and B2B Advertising and Unlawful Comparative Advertising
      I. Misleading B2C actions and B2B advertising
      A. European and national small general clauses
      B. More detailed analysis
      1. Untruthfulness / deceptiveness in relation to one or more of the elements listed
      a. Untruthfulness
      b. Deceptiveness
      c. Elements of the catalogue
      d. Nature of the catalogue
      2. Two specific prohibitions of misleading B2C actions
      a. Passing-off
      b. Non-compliance with commitments in codes of conduct
      1. `Code of conduct' and `code owner'
      2. Firm, not aspirational, and capable of being verified
      3. Indication of the trader that he is bound by the code
      3. Transactional decision test
      C. Comparative conclusion and UCP Proposal 2011
      1. Comparative conclusion
      2. UCP Proposal 2011
      II. Unlawful comparative advertising
      A. European and national provisions
      B. More detailed analysis
      C. Comparative conclusion and UCP Proposal 2011
      1. Comparative conclusion
      2. UCP Proposal 2011
      9. Misleading B2C Omissions
      I. Introduction
      A. Misleading actions versus omissions
      B. Information requirements in the UCP Directive
      II. Misleading B2C omissions (general prohibitions)
      A. European and national small general clauses
      B. More detailed analysis
      1. Omission of material information
      a. Omitting, hiding or providing in an unclear, unintelligible, ambiguous or untimely manner
      b. Material information that the average consumer needs in order to take an informed transactional decision
      2. Transactional decision test
      C. Comparative conclusion and UCP Proposal 2011
      1. Comparative conclusion
      2. UCP Proposal 2011
      III. Information requirements in case of an invitation to purchase
      A. European and national provisions
      B. More detailed analysis
      1. `Invitation to purchase'
      2. `If not apparent from the context'
      3. Elements of the catalogue
      4. Nature of the catalogue
      Contents note continued: 5. Relationship of Article 7(4) with the preceding paragraphs
      C. Comparative conclusion and UCP Proposal 2011
      1. Comparative conclusion
      2. UCP Proposal 2011
      IV. Information requirements established by EU law
      A. European and national provisions
      B. More detailed analysis
      1. Elements of the catalogue
      2. Nature of the catalogue
      3. Relationship of Article 7(5) with the preceding paragraphs
      C. Comparative conclusion and UCP Proposal 2011
      1. Comparative conclusion
      2. UCP Proposal 2011
      V. Deregulation in the field of misleading commercial practices and advertising
      10. Aggressive B2C Commercial Practices
      I. European and national small general clauses
      II. More detailed analysis
      A. aggressiveness condition
      1. Ways in which a commercial practice can be aggressive
      a. Coercion
      b. Undue influence
      c. Harassment
      2. Factors to be taken into account
      3. Significant impairment of the average consumer's freedom of choice or conduct
      B. Transactional decision test
      III. Comparative conclusion and UCP Proposal 2011
      A. Comparative conclusion
      B. UCP Proposal 2011
      IV. Deregulation in the field of aggressive commercial practices
      11. Blacklisted B2C Commercial Practices
      I. blackist
      A. Annex I UCP Directive
      B. National blacklists
      C. UCP Proposal 2011
      II. Blacklisted practices
      A. Misleading practices
      1. Four misleading practices in relation to (membership or approval of) codes of conduct etc
      2. Using bait (and switch) advertising
      3. Falsely claiming that a product is available (on particular terms) for a very limited time
      4. Deceptive practice in relation to language of after-sales service
      5. Falsely claiming that a product can legally be sold
      6. Presenting consumer rights as a distinctive feature of the offer
      7. Using advertorials
      8. Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product
      9. Passing-off
      10. Establishing, operating or promoting pyramid promotional schemes, snowball systems or chain selling systems
      11. Falsely claiming that sales are liquidation sales
      a. Liquidation sales
      b. Seasonal sales
      c. Discounts
      d. UCP Proposal
      12. Claiming that products are able to facilitate winning in games of chance
      13. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations
      14. Passing on materially inaccurate information with the intention of inducing the consumer to buy at conditions less favourable than normal market conditions
      15. Claiming to offer a competition or prize promotion without awarding the prizes
      16. Falsely claiming that products are free
      17. Including an invoice when the consumer has not ordered the marketed product
      18. Falsely claiming not to be a trader
      19. Falsely claiming that after-sales service is available in a Member State other than the one in which the product is sold
      B. Aggressive practices
      1. Harassively creating the impression that the consumer cannot leave the premises before conclusion of the contract
      2. Harassing personal visits
      3. Harassing sollicitation by remote media
      4. Maltreating a consumer who wishes to claim on an insurance policy
      5. Coercive advertising to children
      6. Inertia selling
      7. Claiming that the trader's job or livelihood will be in jeopardy if the consumer does not buy
      8. Creating false impressions as regards the winning of a prize
      III. Comparative conclusion
      12. Enforcement and Legal Redress
      I. Collective enforcement in the Member States
      A. European rules
      1. UCP Directive and MCA Directive
      2. Injunctions Directive
      3. CPC Regulation
      B. National rules
      1. United Kingdom
      2. Germany
      3. Netherlands
      4. Belgium
      5. France
      C. Comparative conclusion
      II. Individual enforcement in the Member States
      A. European rules
      B. National rules
      1. United Kingdom
      2. Germany
      3. Netherlands
      4. Belgium
      5. France
      C. Comparative conclusion
      III. Criminal enforcement in the Member States
      A. European rules
      B. National rules
      1. United Kingdom
      2. Germany
      3. Netherlands
      4. Belgium
      5. France
      C. Comparative conclusion
      pt. 3 Relationship Between Unfair Trade Law and Competition Law Revisited
      13. European and National Competition Law Reform
      I. relationship between EU and national competition law (after modernisation of EU competition law)
      A. Parallel application
      B. Convergence rule
      C. National law predominantly pursuing an objective different from that pursued by Articles 101 and 102 TFEU
      II. European and national competition laws
      A. Brief overview of national competition laws
      B. Restrictive agreements
      1. Articles 101(1)
      (2)TFEU (ex Article 81(1)
      (2) EC)
      2. National prohibitions of restrictive agreements
      3. Legal exception of Article 101(3) TFEU (ex Article 81(3) EC)
      4. National legal exceptions
      C. Abuse of a dominant position
      1. Articles 102 TFEU (ex Article 82 EC)
      2. (Stricter) national prohibitions of abuse of dominance and national rules on unilateral conduct
      14. Interpretation of the Relationship between Competition Law and Unfair Trade Law
      I. principles of free and fair competition in the light of some values of the EU
      II. Interaction between competition law and unfair trade law
      A. Prohibition of anti-competitive practices (principle of free competition)
      1. Undistorted economic behaviour
      2. Undistorted competition
      3. Pivotal purpose
      B. Prohibition of unfair commercial practices (principle of fair competition)
      1. Undistorted economic behaviour
      2. Undistorted competition
      3. Pivotal purpose
      III. Complementarity of competition law and unfair trade law
      IV. Competition law and unfair trade law: `living apart together'
      V. Consequences of this interpretation of the relationship between competition law and unfair trade law
      A. anti-competitive practice is capable of constituting but does not automatically constitute an unfair commercial practice
      B. practice which is not anti-competitive does not automatically constitute a fair commercial practice.
    Session Timeout
    New Session