The Unfair Commercial Practices Directive and the UK Consumer Protection from Unfair Trading Regulations: A Possible Conceptual Convergence of General, Flexible European Standards and English Law Concepts Relevant to Fairness in the EU Context of Consumer Protection

Abstract

The aim of this paper is to verify the level of convergence of European legal principles, broad general standards and UK law concepts relevant to fairness through an analysis of the terms and concepts introduced by the Unfair Commercial Practices Directive (UCPD) , particularly the concept of 'unfair commercial practices' and the related, more specific concept of '(un-)fairness categories' (misleading and aggressive commercial practices) as they are defined in the mentioned Directive (2005/29/EC) proposed by the EC Commission on 18 June 2003 and signed by the European Parliament and the Council on 11 May 2005. The Consumer Protection from Unfair Trading Regulations(CPRs), published on 30 May 2007 to implement the Directive (2005/29/EC) in UK law, will be also examined to show some slight terminological and conceptual variations in comparison with the UCPD text. The vague and flexible nature of terms and concepts used in the said Directive and in the UK Regulations will be pointed out as a source of comparison with similar concepts relevant to English law. This comparison should also lead to conceptual convergence. To this end, emphasis will be placed on the English text of the Directive since it reflects the use of terms and concepts which, albeit considered as belonging to an European context, bear close resemblance to terms and concepts inherent in the English legal culture. Emphasis will be also placed on the position of the UK Government (DTI-Department of Trade and Industry; now BERR-Department of Business, Enterprise & Regulatory Reform) and of the Office of Fair Trading (OFT) as an outstanding example of a possible conceptual interaction between English and European law in the sector of consumer protection.