Finance, Markets and Valuation
DOI:
10.46503/FZPB8532
Corresponding author
Elisabet González Pons
Received: 15 Jan 2020
Revised: 3 Feb 2020
Accepted: 12 Feb 2020
Finance, Markets and
Valuation
ISSN 2530-3163.
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
Addressing aggressive commercial practices: Some
critical aspects of its regime in the Unfair Commercial
Practices Directive
Abordando las prácticas comerciales agresivas: Algunos
aspectos críticos de su régimen en la Directiva de
prácticas comerciales desleales
Elisabet González Pons
ID
1
1
Universitat de València. Valencia, España. Email: Elisabet.gonzalez@uv.es
JEL: D18; D53; K21
Abstract
Aggressive commercial practices are a type of conditioning factor imposed by businesses on consumers
to modify their freedom of choice. Today, no-one is in any doubt about the financial and social impact
aggressive commercial practices can have on consumer wellbeing. In fact, this type of unfair practices has
caused, and continues to cause, significant damage to the interests of consumers, as evidenced by the
financial crisis which has recently beset Europe. Aware of this problem, European institutions have made
consumer protection from unfair commercial practices a priority in their legislative policies. Some of
these initiatives have already been in place long enough to allow their results to be analysed (for instance,
Unfair Commercial Practices Directive). Others, on the other hand, are still at an early stage (for instance,
the New Deal of Consumers legislative proposals), but nevertheless invite reflection. In the light of current
trends which argue in favour of greater protection for consumers than has been the case to date, this
study will review the European regime of aggressive commercial practices, and analyze the most relevant
decisions, especially focused on the financial sector.
Keywords: Aggressive practices; Unfair competition; Consumer protection; Financial sector.
Resumen
Las prácticas agresivas son una forma de condicionamiento al que somete el empresario al consumidor
para alterar su libertad de elección. En la actualidad, nadie discute el impacto económico y social que
pueden tener las prácticas comerciales agresivas sobre el bienestar del consumidor. En efecto, se trata
de prácticas desleales que han causado, y siguen causando, graves perjuicios para los intereses de los
consumidores, tal y como demuestran las consecuencias de la crisis financiera que ha vivido Europa
recientemente. Las instituciones europeas, conscientes del problema, han priorizado en su política legis-
lativa la tutela del consumidor frente a las prácticas comerciales desleales. Algunas de sus iniciativas ya
Cómo citar este artículo: González Pons, E. (2020) Addressing aggressive commercial practices:
Some critical aspects of its regime in the Unfair Commercial Practices Directive. Finance,
Markets and Valuation 6(1), pp. 27–36.
27
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
llevan un recorrido considerable para poder analizar los resultados (por ejemplo, la Directiva de prácticas
comerciales desleales). Otras, en cambio, están en estadios embrionarios, pero aconsejan una reflexión
(por ejemplo, el paquete de medidas anunciadas en el Nuevo Marco Europeo para los Consumidores). A
la luz de las tendencias actuales que defienden una mayor protección para los consumidores que hasta
la fecha, este estudio revisará el régimen europeo de prácticas comerciales agresivas y analizará las
decisiones más relevantes, especialmente centradas en el sector financiero.
Keywords: Prácticas agresivas; Competencia desleal; Protección del consumidor; Sector financiero.
1 Introduction
In 2005 it was approved the Directive concerning unfair business-to-consumer commercial
practices (hereinaer, UCPD), which expressly identifies aggressive practices as unfair and
aims to harmonise the systems available to deal with such practices in all Member States. This
Directive allows Member States significant leeway for the adoption of appropriate instruments
and remedies to comply with the minimum standards set (art. 11). The only condition imposed
for the Member States was that they “shall lay down penalties for infringements of national
provisions adopted in application of this Directive and shall take all necessary measures to
ensure that these are enforced. These penalties must be eective, proportionate and dissuasive”
(art. 13). As a result, the debate has focused on the most eective enforcement to comply with
the standards of the Directive
1
and the most eective, proportionate and dissuasive penalties
to tackle the unfair commercial practices
2
.
On the basis that there is no single valid formula to achieve the eectiveness in the appli-
cation of the UCPD, the EU legislator has recently moved to another step towards complete
harmonization against unfair commercial practices and has announced a set of measures that
will help consumers to assert their rights against unfair entrepreneurs
3
.
2 The UCPD and its three levels of protection
It is well known that the UCPD provides three levels of protection against unfair commercial
practices in businesses to consumers relationships
4
.
First, an exhaustive list of thirty-one misleading and aggressive practices that must be
deemed unfair “in all circumstances” (Annex I UCPD)
5
. To consider these practices unfair is not
necessary the case-by-case exam proposed by arts. 5-9 UCPD.
If the practice is not in the “Blacklist” of unfair commercial practices (Annex I), to consider it
unfair, we will have to examine the specific ban on misleading (arts. 6-7 UCPD) and aggressive
(arts. 8-9 UCPD) practices.
The third level of protection is the general ban on unfair commercial practices provided in
1 On this aspect, see the considerations of Micklitz (2007). Also, Klöhn (2010) and Poelzig (2016)
2 About the private law of the infringement of the prohibitions of the UCPD, see de Cristofaro (2011)
3
We are referring to the New Deal for Consumers adopted by the Commission on 11 April 2018 composed of two proposals
for Directives and a Communication. One of these proposals contemplates to amend the UCPD.
4
Caronna (2018). As Caronna said in p. 886, the three-tier UCPD regime is of a unitar y nature, in the sense that the
specific ban of misleading and aggressive practices (arts. 6-9) and the Blacklist (Annex I) fall within the broader remit of
the general ban (art. 5) and must always fulfil the requirements set out in the general ban. However, since misleading
and aggressive practices are normally also unfair, the UCPD establishes a presumption that these practices under
the specific ban also constitutes an unfair practice under the general ban. This presumption is rebuttable in the case
of conduct falling within the specific ban. In contrast, the presumption is not rebuttable in the case of blacklisted
conducts.
5
Namyslowska (2016) refers to that the exhaustive character of the blacklist is strengthened by the fact that it can be
modified only through a revision of the UCP Directive. Consequently, the Member States are not empowered to amend
Annex I by themselves and to apply the blacklist not similar, but not identical cases.
Elisabet González Pons 28
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
art. 5 UCPD. According to this article, a commercial practice shall be unfair if: (a) it is contrary
to the requirements of professional diligence, and (b) likely to materially distort the economic
behaviour of the average consumer or of the average member of the group when a commercial
practice is directed to a particular group of consumers.
As we have already announced in the title of this article, of the two categories of practices
that the UCPD expressly recognizes as unfair, namely misleading and aggressive practices, we
will deal with aggressive commercial practices.
3 The aggressive commercial practices regime
3.1 Legal definition
According to the UCPD, we could define aggressive commercial practices as a type of condi-
tioning factor imposed by businesses on consumers to modify their freedom of choice. Notwith-
standing this definition that we believe it summarizes the concept of unfair aggressive practice,
the specific ban on aggressive commercial practices (art.8 UCPD) stablishes two conditions
to consider an aggressive practice as unfair. First , the practice must amount to harassment,
coercion or undue influence. Secondly, the practice must be apt to significantly impair the
average consumer’s freedom of choice regarding the product. In other words, it must be capable
of influencing the consumer’s choice in a way that he adopts – or might adopt – a decision that
he would otherwise no have taken.
In addition, the art. 9 UCPD also concrete that to determine whether a commercial practice
uses harassment, coercion, or undue influence, it is taken into account a series of circumstances,
for instance, “its timing, location, nature or persistence; the use of threatening or abusive
language or behaviour; the exploitation by the trader of any specific misfortune or circumstance
of such gravity as to impair the consumer’s judgement, of which the trader is aware, to influence
the consumer’s decision with regard to the product; any onerous or disproportionate non-
contractual barriers imposed by the trader where a consumer wishes to exercise rights under
the contract, including rights to terminate a contract or to switch to another product or another
trader; any threat to take any action that cannot legally be taken”.
3.2 Harassment, coercion or undue influence as unfair competition
Harassmentis not a concept defined by theUCPD. Nevertheless, we could defineharassment
as an unfair oence, as the basic concept of harassment
6
although referring tothe circumstances
contemplated by the UCPD and based on its unfairness. Then, harassment is a behaviour based
on persecuting, annoying, upsetting, inconveniencing or urging consumers
7
as means to obtain
their attention or their decision regarding an oer or a contractual behaviour. However, based
on the fact that we have to elaborate a proper concept in the field of UCPD, we could also borrow
some of the elements that have traditionally defined harassment with criminal relevance, for
instance, “serious intimidation” or “situation hostile or humiliating"
8
, because we consider
that they perfectly describe the scenario that the entrepreneur seeks to create when he uses
this aggressive selling practice on the consumer to force him to adopt a decision that he would
not otherwise have made.
6 According to Cambridge Dictionary harassment is a behaviour that annoys or upsets someone.
7
Fernández Carballo-Calero (2016) has defined harassment as an aggressive practice as “pursuing, bombarding or
pestering the consumer with inconveniences or requests with the aim of influencing their purchasing decision or their
way of acting within the framework of a previously established commercial relationship”.
8 See art. 184 of the Spanish Criminal Code that defines sexual harassment.
Elisabet González Pons 29
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
In particular, the Blacklist of the UCPD consider unfair for harassment in all circumstances
“conducting personal visits to the consumer’s home ignoring the consumer’s request to leave
or not to return except in circumstances and to the extent justified, under national law, to
enforce a contractual obligation” (Point 25 Annex I UCPD) or “Making persistent and unwanted
solicitations by telephone, fax, e-mail or other remote media except in circumstances and to
the extent justified under national law to enforce a contractual obligation” (Point 26 Annex I
UCPD).
The commercial practice consisting of personal visits to the consumer’s home, namely, door-
to-door sale method, or commercial calls, are two commercial strategies in which the trader
has typically used harassment to impair the average consumer’s freedom of choice
9
. Aware of
this problem, the EU legislator recognized these strategies as unfair in all circumstances in the
Annex I UCPD, although subject to certain conditions. Thus, repeated visits; the insistence of
the agent ignoring the requests of the consumer to leave his home or the special characteristics
of the public to which the practice is directed, such as elderly people
10
, children or sick people,
are the circumstances that will be taken into account to consider these behaviours unfair.
A good example of harassment as unfair competition are some practices developed by
funeral homes that "hunted" clients in hospitals and nursing homes, aer the death of a family
member. This was the case described by the Higher Regional Court of Madrid on 23 June 2009.
In the aforementioned case, despite that the Court recognizes that the professional’s behaviour
can be considered as an aggressive practice according the provisions of the UCPD, as the facts
happened when the Directive had not yet been transposed to the Spanish legal system, the
Higher Regional Court of Madrid, considered this practice contrary to the general clause of good
faith recognized in the old art. 5 of the Spanish Unfair Competition Law. A similar practice was
handed down by the Higher Regional Court of Frankfurt on the Main, 29 Januar y 2009, case
n
º
6 U 90/08 that considered the advertising campaign carried out by a gravestones company
contrary to the professional diligence because it sent letter to the relatives of a deceased person
shortly aer the death had taken place
11
.
Regarding the concept of coercion, the only remark that the UCPD makes when defining
the aggressive commercial practices is that the use of physical force is also included. Note that
the UCPD makes no reference to the fact that it is only accepted a physical force, therefore,
allowing, any type of force, including a psychological force or moral coercion. Thus, two types
of coercion can occur with relevance to the UCPD. On the one hand, that which is derived from
the use of physical force, which is what the legislator implicitly recognizes and, by contrast,
coercion in which physical force is not used. We considered coercion with physical force as
unfair commercial practice the most problematic element in the regime of aggressive practices
9
For instance, the practices developed over the years by publishers with the door to door method have been considered
unfair in some circumstances. According to the Italian Competition Authority in the Utet-Enciclopedia non richiesta
case (Proc. n
º
23551, PS4791, 9.5.2012 and Federico Motta editore-modalità di vendita case (Proc. n
º
23816, PS7557,
8.8.2012), the unfairness of the conduct of the publisher is endorsed by the special vulnerability of consumers due to
their advanced age or their delicate health conditions. In both cases, the professional also completes the aggressive
sale, without leaving a copy to the client of the order that he had signed, with the sending of payment reminders
related to orders that the consumers had not subscribed to and ignoring their requests for withdrawal presented aer
have received the request for payment, in addition to not providing any information on the existence of the right of
withdrawal of the consumer. In relation to this modus operandi the Higher Regional Court of Madrid on 25 January
2011, has also been pronounced and found void the contract signed by an elderly and sick person for the acquisition of
cultural books for a high amount concluded by the aggressive sales techniques of the trader.
10
About the unfairness of the aggressive door-to-door selling methods in elderly people, see EUROPEAN COMISSION,
Guidance on the implementation/application of directive 2005/29/EC on unfair commercial practices, 25.5.2016, p. 48.
11 Case analysed by Fernández Carballo-Calero (2016).
Elisabet González Pons 30
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
as it clearly refers to a criminal concept.
Regarding coercion as an aggressive practice, we are interested in highlighting the case
known by the Cour de Cassation, Chambre Criminelle, 1 April 2014, in which it was considered
illegal the practice developed by an entrepreneur who sold his products among elderly people
using aggressive selling practices based on moral coercion
12
.
We would like to report, that coercion as an aggressive practice has been happening between
some debt collection agencies who force consumers to pay debts, although debts are not
clear. Among the pronouncements on coercion with unfair relevance, we wanted to note two
cases from the Italian Competition Authority (hereinaer, ICA). We are referring to the Eurorec-
recupero crediti case and the Ge.ri.manage rischi-recupero crediti case
13
. In these two cases,
the modus operandi was similar. The entrepreneur used coercive practices that significantly
reduced the consumer’s economic behaviour, for the collection of debts, which, in many cases,
had prescribed or simply did not exist. The aggressive practice was to urge the consumer before
judicial bodies manifestly unmeritorious for the payment of a presumed debt that was not
suiciently detailed or that, in many cases, had prescribed, to intimidate the consumer and to
proceed with the immediate payment of the debt, in order to avoid the costs and inconveniences
derived from a judicial process.
In recent times, especially aer the approval of the new regulation of the data protection
in Europe
14
, the techniques used by some debt collection agencies have been questioned by
consumers. These agencies threaten the consumer to immediately include him in a debtors’
list if he does not pay the debt. On this aspect has also been pronounced the ICA, 1 August
2018, intervention number 27287, 27288 and 27289, in which ICA imposed a fine of 3.2 million
euros to the main telephone operators in Italy for aggressive practices consisting of threatening
their customers with the inclusion in a debtors’ list if they did not agree with the payment of
the amounts claimed. According to the criteria of the ICA intervention, the referred practice,
led the consumer to believe that, regardless of the validity of his debt, it would be desirable
to pay the requested, because if the company included the consumer in the aforementioned
database, it could not resign a contract with any telephone operator. We would like to notice that
this penalty is extremely harmful to the consumer’s interest because the telecommunications
service is an essential one.
The above considerations do not mean that the entrepreneur cannot advise the consumer
that he will be included in a debtors’ list if he does not fulfil his payment obligation. It will be the
circumstances in which it occurs that determine its disloyalty. Circumstances such as consumer
misinformation; the threatening or abusing language of the entrepreneur; the exploitation
by the trader of the consumer’s financial crisis or the inclusion in a list that does not respect
the suicient guarantees, may consider an illegitimate pressure to pay, namely, an aggressive
commercial practice. Regarding this, a Slovakian court, 27 October 2011, Krajsky sud v Presove
Case, held that informing a consumer who is not complying with his financial obligations that his
name will be published as a default payer in local media is an aggressive commercial practice
15
.
12
The French option to pursue certain aggressive practices by resorting to Criminal Law may lead the repression of the
unfair commercial practices on a theoretical level. About this idea, CHANTEPIE, G., “La détermination de sanctions
eectives, proportionnées et dissuasives des pratiques commerciales déloyales”, en TERRYN, E., y VOINOT, D., Droit
européen des pratiques commercciales déloyales. Evolution et perspectives, Ed. Larcier, Belgium, 2012, p. 91.
13
We refer to the Proc. Num. 24117 (PS8215 - eurorec-recupero crediti) 12 December 2012 and num. 25033 (PS6549 -
ge.ri.manage rischi-recupero crediti) 17 July 2014 of the Italian Competiton Authority.
14
We refer to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection
of natural persons with regard to the processing of personal data and on the free movement of such data.
15
This is a case cited in the Commission sta working document guidance on the implementation/application of directive
Elisabet González Pons 31
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
More explicit than in the case of harassment or coercion as an aggressive commercial
practice, was the EU legislator regarding the concept of undue influence as unfair competition.
The art. 2 j) UCPD establishes that the undue influence is “exploiting a position of power in
relation to the consumer so as to apply pressure, even without using or threatening to use
physical force, in a way which significantly limits the consumer’s ability to make an informed
decision”.
Thus “undue influence” can be defined as an abuse of a position of power in relation to
a consumer to limit his commercial freedom
16
. This situation would be the case in which the
trader demands immediate or deferred payment for or the return or safekeeping of products
supplied by the trader, but not solicited by the consumer. This practice is considered unfair
per se in point 29 of Annex I UCPD. Regarding this, the CJEU has recently ruled
17
that the
commercialization of SIM cards containing pre-installed and pre-activated payment services,
such as internet browsing and voicemail, is an aggressive practice when consumers are not
informed about it previously. Moreover, behaviours such as those described, constitutes an
"unsolicited supply" and therefore, according to the UCPD (point 29 of Annex I), an unfair
practice, more specifically, an aggressive practice in any circumstance.
Due to their particular vulnerability, we consider convenient to pay special attention to the
undue influence on children, expressly considered unfair per se in point 28 of the Annex I of
the UCDP, which states that “Including in an advertisement a direct exhortation to children to
buy advertised products or persuade their parents or other adults to buy advertised products
for them”. This has been one of the most widespread illicit practices among those considered
unfair per se with consumers and for which the authorities have shown greater sensitivity to
tackle the problem
18
.
Regarding this prohibition, the UK Advertising Standards Authority has considered ille-
gal two online games providing in-app purchases containing direct exhortations to children.
Initially, participation in the game as such was free. However, certain activities required par-
ticipation in a paidmembership system, which entitled members to additional benefits. The
authority found that several statements promoting membership or the purchase of in-game
currency were phrased as commands to the players. These were statements such as ‘JOIN NOW’,
‘The Super Moshis need YOU’ and ‘Members are going to be super popular’, which the authority
considered as putting pressure on children to make a purchase
19
.
It could also be an unfair aggressive practice for undue influence on children
20
, their partici-
pation in drawing competitions, sponsored by private entities, whose “prize” must be collected
in an exhibition in which all the winning drawings are exposed, and to be awarded, the child
must go through a promotional oer of books or other educational material.
An example of aggressive practice in relation to children in the financial sector was the
decision of the Finnish Consumer Ombudsman who considered unfair the fact that a bank sent
2005/29/EC on unfair commercial practices, published 25.5.2016.
16 To study some examples, Palau Ramírez (2010).
17 See, Judgment of the Court (Second Chamber) 13 September 2018, Joined Cases C 54/17 and C 55/17.
18
Among the initiatives of national authorities to tackle the problem of aggressive practices in relation to minors in
advertising, OFFICE OF FAIR TRADING, The OFT’s Principles for online and app-based games, published on 30 January
2014.
19
See other examples in the Commission sta working document guidance on the implementation/application of directive
2005/29/EC on unfair commercial practices, published on 25 May 2016.
20
This example is taken from the paper of MARTORELL ZULUETA, P., presented in Jornada sobre Protección de consumi-
dores y usuarios en el ámbito civil y mercantil desde la perspectiva de la unión europea y nacional, held at the Judicial
School of Madrid, from 29 to 31 January 2018.
Elisabet González Pons 32
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
a letter inviting children to obtain a personal Visa Electron card in order to commemorate the
tenth anniversary of the entity. In particular, the Finnish Consumer Ombudsman considered
this behaviour an aggressive practice due to undue influence. According to the Consumer
Ombudsmen Decision: ‘Traders must not directly exhort or invite children to buy or persuade
their parents or other adults to buy the traders’ products. Whether the marketing exhorts or
invites children to buy must be assessed in each case. Such assessment must be made from
the individual child’s perspective by taking into consideration its age, development and other
factors rendering children particularly vulnerable”
21
.
3.3 A critical overview of the regime of aggressive commercial practices
The criteria that have been followed for the current classification of unfair aggressive prac-
tices are based on the principles of annoying advertising (belästingende werbung) developed
in Germany. However, the European legislator took a step further and it has integrated into the
concept of aggressive commercial practice, harassment, coercion and undue influence. Case
study demonstrates, that the elements that constitute the concept of unfair aggressive practices,
based on these three elements, as factors conditioning consumers’ economic freedom, tend to
overlap each other, so that in practice it is diicult to justify the unfairness of a given aggressive
practice on the basis of just one of these factors. Moreover, recourse to such concepts, which
lie outside the sphere of competition law or consumer law, depending on the discipline in
which Member States have integrated unfair commercial practices, makes them diicult to
apply
22
. The assumptions on which the notion of an aggressive commercial practice is based
tend to distance it from the reality of competition law or consumer law and bring it closer to
criminal legislation systems. It is therefore necessary to define a specific and dierentiated
concept of harassment, coercion and undue influence in relation to the UCPD without altering
the fundamental nature of the concept of aggressive practice as contemplated in that law, that
is, as a means of conditioning the consumer’s commercial freedom.
Based on the analysis ofthe elements of aggressive commercialpractices, wecould define an
aggressive entrepreneur as one who invades the private sphere of the consumer in the taking of
a decision to buy a product or purchase a service, so that, contrary to the professional diligence
that should be expected, the consumer is forced to take an economic decision in relation to a
commercial transaction that has not been suiciently considered and that may be detrimental
to the consumer’s economic interests. Aggressive commercial practices, understood in this
way, brings us closer to the well-known system of defect of consent. It is the same issue, that is,
banning the undue interference in the consumer’s commercial freedom (also contractual)
23
.
Despite the diverse nature of aggressive practices, an analysis of the grounds on which the y
may be deemed unfair leads in turn to two conclusions. On the one hand, the fact that the
entrepreneur is, to a certain extent, taking advantage of the particularly vulnerable situation of
the consumer. This evidences the need to stress that the classification of aggressive practices
as unfair is not concerned with the avoidance of situations of mere inconvenience or annoyance
for the consumer when contracting goods or services, but rather that in order for such conduct
to be considered unlawful there must be a situation where the consumer’s economic behaviour
has or could have been materially distorted. On the other hand, what is important in such
21
See, the Commission sta working document guidance on the implementation/application of directive 2005/29/EC on
unfair commercial practices p. 102.
22 About the deficient regime of aggressive practices in the UCPD, see Howells (2005).
23 See Whittaker (2007).
Elisabet González Pons 33
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
cases is that the entrepreneur has acted in such a way as to reduce the options available to the
consumer in connection with a specific commercial transaction, given that the legislation does
not limit the consideration of unfair competition to instances where a single option is oered to
the consumer.
As a result of the heterogeneous nature of aggressive practices and their increasing sophisti-
cation in concealing their unfair nature, it has not been thought advisable that this article draw
up a list of aggressive practices which could potentially be considered unfair. The most frequent
in practice are those specified by the legislator in Annex I, for instance, persistent calls from
telephone operators proposing new oers to users
24
, despite continued reticence on the part
of the latter to receive new commercial proposals; home visits from sellers who refuse to leave
the premises of the consumer despite being requested to do so; a trader who unreasonably
hampers a consumer’s right to withdraw from a transaction; or the inclusion in an electricity
or telephone bill of a service which the user has not requested and asking for the immediate
payment or creating the false impression that the consumer has already won a prize and to
claim the prize the consumer has to incur in costs. However, the latter is a subject-matter that
has been somewhat eclipsed by the no less unfair misleading practices, which have enjoyed a
longer legal tradition and a simpler regulatory framework than aggressive practices
25
.
4 The new European regulation against unfair commercial practices: again,
a missed opportunity?
26
Having identified the aggressive commercial practices as a factor which causes significant
market distortions, and without a specific mandate for Member States to achieve their best
results of their regulation
27
, lawmakers now face the redoubtable task of identifying the most
appropriate tools for dealing with such a damaging phenomenon, which is increasingly present
in business-to-consumer relationships. One of the most significant problems posed by such
practices is how to repress them. However the current legal framework providing no satisfactory
solutions
28
.
Being aware of this problem, European institutions have made consumer protection from
unfair commercial practices a priority in their legislative policies. Some of these initiatives, for
instance, the UCPD have already been in place long enough that their results can be analysed.
Others, such as the proposal of the New Deal for Consumers of the European Commission, are
still at an early stage.
We consider positive some of the measures of the New Deal for Consumers, for instance,
the possibility of terminating a contract concluded by a misleading or aggressive practice of the
entrepreneur. This idea suggests the relationship between the regime of unfair practices with
24
Indeed, to protect consumers eectively in the case of cold calls there would be some scholars who defend the
introduction of public law fines or even criminal law sanctions. See, ROTT, P., “Eective enforcement of consumer
law: the comeback of public law and criminal law”, in DEVENNEY-KENNY, (Ed.), European Consumer Protection, Ed.
Cambridge University Press, 2012, p. 81.
25 Köhler (2013).
26 See the well-known paper of Howells (2005)
27 Apart from the provisions of articles 11 and 13 of the UCPD.
28
Therefore, it is necessary to amend the UCPD, see the Proposal for a Directive of the European Parliament and of the
council amending Council Directive 93/13/EEC of 5 April 1993, Directive 98/6/EC of the European Parliament and of the
Council, Directive 2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European
Parliament and of the Council as regards better enforcement and modernisation of EU consumer protection rules,
11.4.2018.
Elisabet González Pons 34
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
the contract law. Many scholars have defended it although the UCPD establishes “This Directive
is without prejudice to contract law and, in particular, to the rules on the validity, formation or
eect of a contract” (art. 3.2). We believe, that this measure, together with the others announced
in this new framework, for instance, the recognition of financial compensation in the case of
suering unfair commercial practices, may be the keys for the proper functioning of the new
regime and for no qualifying it as a missed opportunity.
5 Conclusions
Nowadays, no-one is in any doubt of the financial and social impact aggressive commercial
practices can have on consumer wellbeing. In fact, this type of unfair practice has caused,
and continues to cause, significant damage to the interests of consumers, as shown by the
financial crisis which has recently beset Europe. Indeed, competitors have resorted to dishonest
behaviours which need to be curbed if we are to avoid a return to the worst economic scenario
in our recent history.
Although some years have elapsed since the approval of the EU legislation on aggressive
commercial practices, the regime remains unclear. In this article, we point out that one of its
causes could be the notion of aggressive practice on which the UCPD was based. The idea
that should predominate in the interpretation of the concept of aggressive practice is that
these practices seek to force consumers to take a certain economic decision in relation to
a market transaction. However, there is still a long way to go in order to accommodate the
prerequisites of unfairness, such as harassment, coercion or undue influence, to the persuasive
commercial techniques. To clarify the concepts of harassment, coercion and undue influence,
it would be desirable more flexibility for its interpretation. In some cases, it would be advised a
re-interpretation of such concepts. This re-interpretation has been aided by the application
of contract-law institutions, which tie in with the provisions on unfair aggressive commercial
practices as regulated in UCPD, namely, the use of force and intimidation as factors that vitiate
consent.
Besides the problem of inaccuracy of harassment, coercion and undue influence as an
aggressive practice, to date, the instruments made available for countering such practices,
have not worked for the consumers, as evidenced the latest problems that have shaken the
European market in recent times, such as the Dieselgate case regarding misleading advertising.
This brings us to the second idea we have pointed out to explain the missed opportunity of
the aggressive practices. However, we must note that the non-application of the rules of the
aggressive practices, is not common to all Member States. In the article we have dealt with some
decisions of the competent authorities to know these types of conducts that we find interesting
and that contribute to clarify the obscure concept of aggressive commercial practices.
References
Caronna, F. (2018). Tackling aggressive commercial practices: Court of justice case law on the
unfair commercial practices directive 10 years on. European Law Review(6), 880–903.
de Cristofaro, G. (2011). Infringement on the prohibition of unfair commercial practices and tort
law. En R. Schulze (Ed.), Compensation of private losses: the evolution of torts in European
business law (p. 116). Munich: Selier European law publishers.
Fernández Carballo-Calero, P. (2016). Aggressive commercial practices in the case law of EU
Member States. Journal of European Consumer and Market Law, 5(6), 255–261.
Elisabet González Pons 35
Finance, Markets and Valuation Vol. 6, Num. 1 (January-June 2020), 27–36
Howells, G. (2005). Unfair commercial practices directive–A missed opportunity. En S. Weatherill
y U. Bernitz (Eds.), The regulation of unfair commercial practices under EC directive (pp.
103–114).
Klöhn, L. (2010). Private versus public enforcement of laws - a law & economics perspective.
SSRN Electronic Journal. doi: https://doi.org/10.2139/ssrn.1730308
Köhler, H. (2013). ‘congratulations, you have won!’new standards apply to announcements of
wins: A discussion of Purely Creative and others. Journal of Intellectual Property Law &
Practice, 8(5), 399–403.
Micklitz, H. W. (2007). Transborder law enforcement-does it exist? En The regulation of
unfair commercial practices under EC Directive 2005/29: New rules and new techniques.
Bloomsbury Publishing.
Namyslowska, M. (2016). The blacklist of unfair commercial practices: The black sheep, red
herring or white elephant of the unfair commercial practices directive? En W. Van Boom,
A. Garde, y O. Akseli (Eds.), The European unfair commercial practices directive (pp. 77–98).
Routledge.
Palau Ramírez, F. (2010). Prácticas agresivas. En J. Ruiz Peris (Ed.), La reforma de la ley
de competencia desleal (estudios sobre la ley 29/2009, de 30 de diciembre, por la que se
modifica el régimen legal de la competencia desleal y de la publicidad para mejora de la
protección de los consumidores y usuarios) (p. 151). Tirant lo Blanch.
Poelzig, D. (2016). Private or public enforcement of the UCP Directive? Sanctions and remedies
to prevent unfair commercial practices. En W. Van Boom, A. Garde, y O. Akseli (Eds.), The
european unfair commercial practices directive (pp. 235–262). Routledge.
Whittaker, S. (2007). The relationship of the unfair commercial practices directive to European
and national contract laws. En The regulation of unfair commercial practices under EC
Directive 2005/29: New rules and new techniques (p. 146). Bloomsbury Publishing.
Elisabet González Pons 36
