Enforcement under the UCTD: challenges and limitations

Abstract

This chapter discusses the challenges of enforcement in the digital marketplace and the problems of tackling widespread and cross-border infringements of the UCTD affecting the collective interests of EU consumers. The chapter discusses the minimum enforcement requirements under the Directive and the problems associated with both individual litigation and collective representative litigation by national regulatory authorities. It also discusses the challenges and problems of cross-border collective litigation and the limitations of coordinated actions. The chapter includes discussion of the Directive on Representative Actions and the Modernisation Directive. The problems discussed include the length of court proceedings, the limited impact of a finding of unfairness, and the effectiveness of sanctions. In the case of infringements with a cross-border element, these problems are often intensified. Where there is an infringement of the UCTD occurring simultaneously across several EU Member States, there are risks associated with duplication of enforcement efforts, inconsistent enforcement approaches at national level and inconsistencies regarding the interpretation of the substantive law. The chapter concludes that enforcement by private individuals, or even collectively by national regulatory authorities may not result in effective protection for consumers against infringement of the UCTD in the digital mass-market.