B2B Misleading Marketing Practices Luc Hendrickx UEAPME Director Enterprise Policy and External Relations

Transcription

1 B2B Misleading Marketing Practices Luc Hendrickx UEAPME Director Enterprise Policy and External Relations European Economic and Social Committee SMEs, Professions and Crafts Category 28 th June 2013 Brussels

2 UEAPME Employers organisation representing the interests at European level of crafts, trades and Small and Medium-Sized Enterprises 80 member organisations (national cross-sectoral associations and European trade federations) Represents 9 million enterprises in EU which employ over 30 million people. EU + : 12 million businesses in 34 countries with nearly 55 million employees Recognised European Social Partner

3

4 Background On the agenda of our national SME organisations for over more than 30 years!! Expertise and legitimacy of our position and demands Not taken seriously Underestimated Not a priority Widespread comes in waves / cyclic Different forms adapting to new technologies Political issue: UEAPME position papers on the SBA, various UEAPME position papers for incoming Presidencies; meeting with Commission 2008, meeting Commisioner Reding July 2010, Commission Workshop June 2010, meeting with MS 2013 (DG Justice) Com (2012) 702

5 Different and variety of practices Looks like an invoice/reminder Often similarity with official invoices (register of commerce, ) Mimicry - copy of bona fide image Amount to be paid acceptable and below the limit of control

6 Importance of the problem: national level Small and big enterprises/ NGOs/ public authorities Problem with accurate assessment of the problem: lack of data; National inspection authorities do not have data; Majority of cases does not come out: feeling of embarrassment Because lack of data on a single case basis, difficult to recognise the scam as an international fraud; Our member organisations: several thousands of complaints; France : the Benedict Wohlfart-case according to the court sentence 1.3 million enterprises and institutions have been approached in France!

7 Number of complaints (Belgium)

8 National level (1) Our organisations have taken up their responsibility: Awareness raising campaigns necessary but not sufficient Creation of hot lines Black lists need for a critical mass Legal support - Model letters Legal action Members and non-members Defending the public interest!

9 National level (2) Austria: article 28a UWG Gesetz gegen Unlauteren Wettbewerb ( unfair competition law ) : It shall be prohibited to advertise, in the scope of business and for the purpose of competition, for registration in directories, such as yellow pages, telephone directory or similar lists, by way of a payment form, money order form, invoice, offer of correction or similar manner or to offer such registrations directly without unequivocally and also by clear graphical means pointing out that such advertisement is solely an offer for a contract. Czech Republic: Provision 46,5 Commercial Law Advertising, in a framework of commercial activities which proposes a registration in catalogues such as telephone and other directories, via pay form, post money order, invoice, announcement letter for a correction or other similar types of documents, must comprehend a visible and clear information that this advertising is exlusively a proposal to conclude a contract. This applies also to direct proposal for such registration.

10 National level (3) Belgium (2011): «Loi modifiant la loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur en vue de lutter contre les démarcheurs publicitaires.» Article 97/1: «Il est interdit à toute entreprise de prospecter, soit directement, soit par le biais d un formulaire de paiement, d un formulaire de commande, d une facture, d une offre, de conditions générales, d une proposition de correction ou de tout autre document similaire, des annonceurs en vue de les faire figurer dans des guides, des fichiers d adresses, des annuaires téléphoniques ou de listes ou fichiers similaires, sans indiquer explicitement que cette prospection constitue une offre de contrat payant et sans mentionner dans le document, en caractères gras et dans le plus grand caractère utilisé dans le document, la durée du contrat et le prix y afférent.»

11 National level (4) MDC adapt to new situations: in past letters, followed by faxes, now s; cross-border, including outside EU (Mexico) Austrian and Czech law do not cover the problem of the domain name registrations need for open rules Nevertheless have helped to tackle the problem of national MDCs MDCs have too good conditions as long as they do not perform their business in their home country...(local authorities often do not want to use resources to protect victims in other M.S.)

12 European Dimension cross-border problem with offers coming from abroad and other EU and non EU (Switserland)-countries is still big and relevant Exploit business regulations in various countries such as registration process ( you can register a company in 15 minutes!), security checking, data control and quality, lack of cooperation between countries in the area of company checks Makes legal action difficult, expensive and sometimes even impossible; Misleading Company Directories close business operations in one country and restore them in another country in a short period of time. Legal harmonisation is needed: e.g. the German authorities don t consider as misleading, what Belgian authorities consider and rule as misleading

13 UEAPME fully agrees with E.P. Resolution There is a clear cross-border dimension of the problem, as different interpretations in Member States of what is considered misleading exist, and this can be exploited by directory companies ; National legislative frameworks often limit the possibilities for government authorities in relation to B2B transactions, including concerning activities of directory companies ; Remedies for victims of unfair practices are often provided by the national legal frameworks, but are of less relevance in practice, due to the litigation risks involved and reluctance of victims to use them; and Self-regulatory and other non-legislative measures, including the use of ADR mechanisms are considered to be of little relevance in the context of practices of directory companies

14 DG Justice COM(2012) 702 final1: COMMUNICATION FROM THE COMMISSION TO THE EUROPEANPARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS: Protecting businesses against misleading marketing practices and ensuring effective enforcement. Review of Directive 2006/114/EC concerning misleading and comparative advertising

15 Conclusions: Requests to Commission -1 Importance of sharing information. If the enterprises and their organisations are well-informed the MDC will be less successful in their business. to monitor systematically complaints. This could be done through the creation of a coordination point at European level (in the Commission for example) which should also to follow-up the national court cases, etc Will provide better insight view on interconnected companies, link with organised crime

16 Conclusions: Requests to Commission - 2 Mediation is not a solution it is about criminality To come up urgently with a proposal to amend Directive 2006/114/EC; To be adopted before June 2014!! to consider the misleading directory companies as a serious fraud that should become a priority by public prosecutors

17 Conclusions: Requests to Commission - 3 to take the necessary steps to enhance cross-border coordination, cooperation (with other authorities + with BOs) and enforcement; to support financially representative organisations dealing with the problem; Propose a common European approach to prohibit convicted MDC s to restart prohibition to continue their activities

18 References: Austria: Belgium: The Netherlands: AVO: Denmark:

19 Thank you for your attention! Rue Jacques de Lalaingstraat 4 B Brussels