Business-to-Consumer Harassment,Unfair Commercial Practices Directive and the UK—A Distorted Picture of Uniform Harmonization?

The Unfair Commercial Practices Directive 2005 (UCPD) attempts to achieve a full harmonization of the rules against unfair business-to-consumer (B2C) practices. However, this paper argues that the UCPD cannot resolve disparities in national laws because of a lack of clarity of concepts and the existence of uncertain substantive and enforcement provisions. This is demonstrated by the Ferguson v British Gas case which extended the loosely formulated UK Protection from Harassment Act 1997 (PHA) to B2C harassment cases covered by the UCPD. Ferguson highlights contradictions in the approaches of the two systems which suggest loopholes in the UCPD’s full harmonization goal. As well as proposing the amendment of the PHA, the paper suggests that complete harmonization requires that issues of clarity of concepts, definitions, liability, ancillary tort claims, and enforcement rights which create room for creative interpretations and lack of uniformity should be addressed. A one-stop legislation approach to transposition can also improve harmonization.     

About the authors

The European Commission's proposed consultative document on ‘Commercial Communication within the Internal Market’ should focus on policy objectives. It is only when there is clarity as to the purposes of control that sensible decisions can be made as to the respective roles, across the European Community, of regulation and self-regulation. In the UK, the EC Misleading Advertising Directive has been implemented with the Office of Fair Trading providing a safety net beneath both legal instruments and self-regulatory mechanisms. If self-regulatory mechanisms are to be considered at the EC level, there must be awareness of the strengths and weaknesses. A number of features are identified for self-regulation to be successful. A balance must also be drawn between activity at the EC level and activity at member state level. Standards and enforcement practice should be as consistent as possible, but there is also a need to respect legitimate national, regional and local diversity. The main options are reviewed. There may be a case for a variant of the home authority principle, which has been developed to co-ordinate the domestic ‘cross-border’ work of UK trading standards authorities, to be developed at EC level. The recently formed International Marketing Supervision Network may be a step in that direction.

The forthcoming consultative document will be a vehicle for taking these issues forward. The broad objective should be to secure maximum freedom, transparency and confidence in the market. Effective arrangements, in which both businesses and the public have confidence, are essential for the development of the internal market.     

Unfair Consumer Contract Terms Under Macedonian Law: How the Old and the New Function in Practice

This article analyses the functioning in practice of the system of substantive regulation of unfair terms in consumer contracts, introduced into Macedonian law as part of the harmonization obligations of the EU accession process. Specifically, the article seeks to establish the possible reasons for the absence of substantial evidence of application of the rules on unfair contract terms in consumer contracts in Macedonian practice. In providing an explanation, the focus is on the transposition of the consumer acquis and the Unfair Contract Terms Directive into national law, the enforcement structure for consumer law, and the relationship with the pre-existing civil law. In sum, the inconsistencies and incompleteness of the transposition, the weak and complex enforcement structure, as well as the unsettled relationship with the already existing civil law rules on similar topics have all contributed to weaken the practical significance of the special law on unfair contract terms.     

Institutional Design in Hungary: A Case Study of the Unfair Commercial Practices Directive

The adoption of the Unfair Commercial Practices Directive (UCPD) and its implementation in the EU Member States raised many academic and policy discussions on substantive issues such as the fairness notion, the substantive test of material distortion, as well as the concept of the average consumer. However, its influence on the Member States' enforcement regimes is equally far-reaching. This paper analyses on the one hand, how EU law, i.e., the UCPD, affected the traditional enforcement models of the Member States and on the other hand, how the allocation of enforcement powers to institutions who enforce the UCPD and the organizational design of these enforcement institutions influence the actual enforcement of EU law in the national legal context. This paper conducts a case study on Hungarian law and examines how Europeanization of unfair commercial practices has changed the Hungarian model of law enforcement. The paper finds that the changes in the Hungarian institutional framework had significant impact on how substantive rules are applied by the various enforcement agencies due to their different enforcement legacies. This case study shows that looking at institutional design provides a deeper understanding of local enforcement modalities, and it offers new insights for Europeanization strategies.     

Unfair Terms in Contracts: Proposals for Reform in the UK

The English and Scottish Law Commissions have made radical proposals for simplifying UK law on unfair terms in consumer contracts, combining the Regulations that implement the Directive and the earlier legislation into a single instrument that is to be written in language that would be clear and accessible to consumers and businesspeople. The article discusses some of the difficult policy choices involved in combining the different approaches of the two existing instruments, what is needed in order to make the legislation understandable to the lay person, and the extent to which the case of Commission v The Kingdom of the Netherlands requires Member States to use the language of the Directive when implementing it. The Law Commissions also proposed to extend the broader controls found in the Directive to business-to-business contracts, but the proposals did not find favour with the business community.     

To B2C or Not to B2C. Some Reflections on the Regulation of Unfair Commercial Practices from a Polish Perspective

The article addresses the issue of whether EU consumer law and national implementing laws require the distinction between business-to-consumer (B2C) and business-to-business (B2B) relationships. The Polish experiences with the implementation of the Unfair Commercial Practice Directive supply this well-known discussion with new arguments. In Poland, the near copy–paste implementation of this directive was done in nearly timely fashion. The outcome, however, is far from being nearly unproblematic, as the new act is disconnected from the old system in a simplistic way. Subsequently, the institutional choice for enforcement creates both an inconsistency with EU law and enforcement deficiencies that undermine the directive's policy aimed at achieving a high level of consumer protection. Notwithstanding the imperfect Polish law-making and law enforcement, a success story may have been unlikely in any event. While in its inception it was announced as a consumer law instrument, the Unfair Commercial Practices Directive operates in a field dominated by competitors. Therefore, the correct transposition of this peculiar directive into national law, as well as its application, was and still is a challenging task. It is questionable if it is feasible at all. Ultimately, the tangible incoherencies and the existing desynchronization of protection against unfair commercial practices, both at the EU and national level, raise fundamental questions not only about the necessity of separate B2C and B2B regulations but also about the interplay between the laws of the EU and the Member States, in particular the new Member States, and about the way they mutually affect and interfere with each other.     

Criminal Identity Deception and Deception Detection in Law Enforcement

Criminals often falsify their identities intentionally in order to deter police investigations. In this paper we focus on uncovering patterns of criminal identity deception observed through a case study performed at a local law enforcement agency. We define criminal identity deception based on an understanding of the various theories of deception. We interview a police detective expert and discuss the characteristics of criminal identity deception. A taxonomy for criminal identity deception was built to represent the different patterns that were identified in the case study. We also discuss methods currently employed by law enforcement agencies to detect deception. Police database systems contain little information that can help reveal deceptive identities. Thus, in order to identify deception, police officers rely mainly on investigation. Current methods for detecting deceptive criminal identities are neither effective nor efficient. Therefore we propose an automated solution to help solve this problem.     

Strategic procurement in the new local government

This article presents a radically new view of the role of procurement in local government. The 1995 UK White Paper on government procurement is discussed and its implications applied in the local context. The concept of the ‘enabling authority’ is introduced, with strategic procurement at its heart. The author concludes that strategic procurement officers hold the key to making a success of the new model of local government.     

Ethical Objections to Fairtrade

The Fairtrade movement is a group of businesses claiming to trade ethically. The claims are evaluated, under a range of criteria derived from the Utilitarian ethic. Firstly, if aid or charity money is diverted from the very poorest people to the quite poor, or the rich, there is an increase in death and destitution. It is shown that little of the extra paid by consumers for Fairtrade reaches farmers, sometimes none. It cannot be shown that it has a positive impact on Fairtrade farmers in general, but evidence suggesting it harms others is presented. Many of the weaknesses are due to an attempt to impose political views on farmers and others. Secondly, the unfair trading criteria require that sellers do not lie about their product, nor withhold information that might alter the decisions of a substantial proportion of buyers. It is argued that the system only can exist because of the failure of the Fairtrade industry to give the facts on what happens to the money and what it can be proved it achieves. This unfair trading compromises the reputation of charities in general. Much of the trading may constitute the criminal offence of Unfair Trading in the EU.     

The Proposed Guarantees Directive: Is It Fit for the Purpose?

The purpose of this article is to critically analyse the provisions of the proposed Directive on the sale of consumer goods and associated guarantees as it will apply, in particular, in the UK. The Directive addresses two perceived problems for the European consumer; the variation in the minimum legal guarantee currently provided by individual Member States, and the lack of clarity and difficulties in enforcement of additional guarantees provided by sellers and manufacturers. The article considers the detailed provisions of the Directive as to both the "legal guarantee" and the "commercial guarantee" and sets these provisions in a UK context in order to assess, specifically, their potential significance for consumers and consumer law in the UK.     

Consumer Law and Policy in Kenya

This contribution seeks to examine the consumer protection law and policy in Kenya with a view to understand how consumer issues, such as product safety and product liability, are addressed as well as the remedies for defective goods. It also seeks to understand the available provisions on the safety standards of consumer products, such as mobile phones, by highlighting the consumer issues that arise for mobile phone users with particular reference to the services provided by mobile network operators (MNOs) – i.e., the financial services and products – and how the consumer protection regime has addressed them. It will conclude by examining how the Kenyan consumer law has manifested itself, either by its influence on other states’ consumer laws and policies or the way(s) in which its own laws have been influenced by foreign and supranational consumer laws. References will be made with regard to the influence by the European Commission (EC) Product Safety Directive, the EC Product Liability Directive, the EC Consumer Sales Directive and the EC Unfair Commercial Practices Directive. Furthermore, this contribution will highlight the challenges encountered with respect to the achievement of a consumer protection regime in Kenya, as a result of the fragmentation of the law and policies.     

Consumer education in the UK: new developments in policy,strategy and implementation

Consumer education is an integral part of the European Community's consumer policy. It plays a key role in consumer empowerment, helping consumers gain the skills, attitudes and knowledge they need to be able to gear the choices they make as consumers to their economic interests and to protect their health and safety. In its policy statement, the Directorate General for Health and Consumer Protection states that the European Community is aware that joint measures at national and Community levels should be more structured, in order to achieve maximum effectiveness. This paper aims to set out the current policy and strategic context for consumer education and empowerment in the UK; review the role of UK government bodies and other agencies concerned with developments; review recent literature; present the results of interviews with an extensive range of key stakeholders and the results of a survey of service heads for trading standards throughout the UK. It will consider implementation, partnership, resources, ideas and opportunities. The research found that the agenda for consumer education in the UK is at an interesting stage of development. The Enterprise Act 2002 gives the Office of Fair Trading (OFT) a statutory power to carry out educational activities. Consumer education is also moving up the agenda in the trading standards service. In addition, the teaching of citizenship in English schools is already stimulating new developments in consumer education. The paper will consider the need for organizations like these to work together to build on these policy developments and ensure that consumer education gains the profile it needs to influence consumer attitudes and behaviour.     

Dissemination of Consumer Law and Policy in South Africa

This article considers to what extent some important areas of South African consumer law have been influenced by the laws of international bodies, other countries or regional bodies or, in turn, influenced other laws in Southern Africa and beyond. It focuses on rules on product safety, product liability, remedies for defective quality of goods, some basic rules on unfair commercial practices and various aspects of consumer law relating to the use of mobile phones by South African consumers. The main piece of legislation considered is the Consumer Protection Act 68 of 2008 (“CPA”), which came into force in 2011. The article considers whether aspects of this legislation were influenced by the EC Product Safety Directive, EC Product Liability Directive, EC Consumer Sales Directive, EC Unfair Commercial Practices Directive and EC Directive on Misleading and Comparative Marketing. It shows how the relevant provisions of the CPA influenced the laws of some African countries. The article also considers various issues faced by consumers in the mobile phone sector, including defective handsets, defective services, the high cost of mobile calls and data, the lapsing of “unused” data after short periods, data “disappearing” faster than expected, unfair contract terms, unsolicited marketing and the complexity of mobile phone contracts, which leads consumers to overestimate or underestimate their future usage, therefore paying too much because they are on an ill-suited plan. Conclusion of agreements via mobile phones, marketing of additional services like ringtones and apps and unsolicited marketing via mobile phones are also considered. Some complaints regarding the use of mobile phones should be better provided for in legislation, and enforcement of consumer rights in this sector could be improved.     

New Firm Formation and Regional Economic Development: An introduction and review of the Scottish experience

This paper introduces this special edition ofSmall Business Economics on New Firm Formation and Regional Economic Development. It integrates the articles appearing in this volume with others presented at the Economic and Social Research Council Urban and Regional Economics Seminar Group conference on this theme in January 1994 in Ayr, Scotland. Many of the studies are derived from a Scottish Enterprise research programme on the contribution of new enterprises and entrepreneurs to economic development, and the factors explaining the low levels of business start-ups in Scotland. Comparative data, research and experiences from across the UK, European Union and US are called upon to improve the understanding of the processes involved. The findings are sometimes unsuspected, challenging the super-structure of business development agencies and their attitudes and behaviour towards indigenous potential entrepreneurs.     

Good directors and bad behavior

Because financial frauds are not uncommon, and CEOs and/or CFOs are most often directly involved in them, directors of public corporations should be constantly concerned with monitoring their officers’ legal and ethical behavior. This is the case for three primary reasons. First, due to a variety of organizational pressures and decision making missteps, even people who wish to be ‘good’—as most corporate officers presumably do—often make serious ethical mistakes. Second, top corporate officers are particularly susceptible to making several of these errors. And third, for various psychological reasons, corporate directors often find it difficult to adequately police those officers. This installment of Business Law & Ethics Corner explores the issue of good directors and bad behavior.     

Effective Corporate Codes of Ethics: Perceptions of Code Users

The study examines employee, managerial, and ethics officer perceptions regarding their companies codes of ethics. The study moves beyond examining the mere existence of a code of ethics to consider the role that code content and code process (i.e. creation, implementation, and administration) might play with respect to the effectiveness of codes in influencing behavior. Fifty-seven in-depth, semi-structured interviews of employees, managers, and ethics officers were conducted at four large Canadian companies. The factors viewed by respondents to be important with respect to code effectiveness include: provisions of examples; readability; tone; relevance; realism; senior management support; training; reinforcement; living up to standards; reporting requirement; anonymous phone line; communicating violations; and enforcement. The factors found to be potentially important include: justification for provisions; employee involvement; and sign-off requirements. Factors found not to be important include: objectives for the code; prior distribution; testing; and relating ones performance review to compliance with the code.     

Food Advertising and Obesity Prevention: What Role for the European Union?

When the Television Without Frontiers Directive (TVWF Directive) was first adopted in 1989, there was very little discussion on how food advertising should be regulated at Community level. However, things have changed as a result of rising levels of obesity in all EU Member States. Consequently, several stakeholders have suggested that the advertising of unhealthy food to children should be restricted. This article analyses whether and how, bearing the obesity epidemic in mind, the European Union could regulate the marketing of food high in fat, sugar and salt to children (HFSS food). It starts by presenting the evidence supporting such regulation. It then focuses on the contribution which the TVWF Directive and the Audiovisual Media Services Directive (AVMS Directive) could make to the debate. It finally looks at the broader regulatory framework by discussing their relationship with other instruments of Community law relating to food advertising, and in particular the Unfair Commercial Practices Directive (UCP Directive) and the recently adopted Regulation on nutrition and health claims made on foods.

User involvement in measuring service quality of local authority occupational therapy services; a new approach

The aim of this paper is two‐fold: (i) to describe the development of a new measuring instrument for quality of care from the perspective of the users of local authority Occupational Therapy (OT) services, and (ii) to evaluate the potential of the new instrument as a standardized approach for involving consumers in the service evaluation of home health care services. A combination of qualitative and quantitative methods was used. Focus group discussions with users of local authority OT‐services preceded a postal survey. Questionnaires were sent to a random sample of 997 users of the local authority OT Bureau in Kent, UK. The response rate was 55%. A valid and reliable instrument – the QUOTE‐OT Services questionnaire – was developed, which reflects the (expressed) needs of the users of OT services. Feasibility tests showed that information from the instrument can play an important role in follow‐up activities that aim at continuous quality improvement. The QUOTE‐OT Services instrument can be seen as an example of a new generation of questionnaires for assessing user views in quality of care research. Potentially, instruments such as the QUOTE‐OT questionnaire contribute to the empowerment of users in programmes that aim at improving the quality of home health care services.     

The EU Water Framework Directive: Meeting the Global Call for Regulatory Guidance?

Current efforts to identify transferable solutions to the unsustainable use of water resources also focus on European resource management. But Europe does not offer any simple answers either. Europe’s governance structures are rather idiosyncratic and share hardly any common reference. Nor has the EU’s Water Framework Directive created the needed set of common denominators.