Directive 2005/29/EC on Unfair Commercial Practices and Its Application to Food-Related Consumer Protection

Headnote

Directive 2005/29/EC on Unfair Commercial Practices was adopted on 11 May 2005 to help consumers benefit from the Internal Market by removing regulatory barriers, deriving from divergent national rules, which discouraged firms from selling and undermined consumers' trust in buying across the EU. It provides for a high level of consumer protection in all sectors and works as a safety net that fills the gaps, which are not regulated by other EU sector- specific rules. As far as some practices are not regulated by specific Food Law rules, Directive 2005/29/EC ensures also that consumers are not misled by or exposed to aggressive marketing and that any claim made by traders in the EU is clear, accurate and substantiated, thus enabling consumers to make informed and meaningful foodstuffs choices.

"It takes less time to do things right than to explain why you did it wrong." HenryWadsworth Longfellow

I. Introduction

Directive 2005/29/EC concerning unfair business-toconsumer commercial practices in the internal market was adopted a decade ago1 with the purpose of harmonising the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harmconsumers' economic interests and thereby indirectly harmthe economic interests of legitimate competitors: "in line with the principle of proportionality, this Directive [2005/29/EC] protects consumers from the consequences of such unfair commercial practices where they are material but recognises that in some cases the impact on consumers may be negligible"2.

The new law harboured many expectations and was welcomed when it came into force3. Legal experts wrote numerous articles4 heaping the most unaccustomed and eloquent praise on the new legisla- tion, or at the very least, highlighting the 'need' for it and its likely effectiveness5. It is worth recalling that Directive 2005/29/EC was expected to help particularly with strengthening European consumer trust in cross-border transactions.

Although I have previously discussed the Directive6, I believe it isworth revisiting in the light of several new Community documents that have since been published, namely the following7:

* the working document published by the Commission at the end of 2009 and entitled "Guidance on the Implementation/Application of Directive 2005/29/EC onUnfair Commercial practices" [document SEC(2009) 16668, hereinafter referred to as "the Commission's 2009 Guidance document"];

* the Communication of the Commission itself to the European...