List of Contributors... xiii Table of Cases...xv 1. Introduction: Marketing and Advertising Law in a Process of Harmonisation...1 Ulf Bernitz and Caroline Heide-Jørgensen I. Introduction...1 II. The Development of Unfair Commercial Practices Law/Unfair Competition...7 A. The Paradigm of Freedom of Commerce and the Historical Origins of Different National Traditions for Regulating Unfair Competition...7 B. Regulation by International Conventions the Rules of the Paris Convention, the WIPO and the TRIPS on Unfair Competition and Self-regulation in the ICC...9 III. EU Regulation Free Movement and Harmonisation...11 A. Foundation in TFEU and Case Law from CJEU on Free Movement...11 B. Harmonisation from Protection of the Honest Entrepreneur to Protection of the Consumer...12 (i) General Harmonisation History and Development...12 Some Reflections on the Terms Unfair Competition, Unfair Trade and/or Unfair Commercial Practices?...16 (iii) Harmonisation of Special Areas...16 IV. Problems and Challenges...17 2. Commercial Speech and its Limits Fundamental Rights and Comparative Constitutional Aspects...19 Caroline Heide-Jørgensen I. Free Speech and Unfair Commercial Practices Introduction...19 II. The Protection of Commercial Speech in the European Convention of Human Rights...21 III. Protection of Commercial Speech in the EU...26
vi IV. Comparative Constitutional Aspects of Freedom of Commercial Speech...30 A. Protection of Commercial Speech in the USA...30 (i) Introduction...30 Commercial Speech Defining the Concept...31 (iii) The Distinction between Content-Neutral and Content-Based Regulation...33 (iv) Summary of US Law of Freedom of Speech...39 B. Protection of Commercial Speech in Germany...39 V. Some Conclusions on the Protection of Freedom of Commercial Speech and Unfair Commercial Practices...43 3. Ethics, Taste and Decency Considerations in Advertising...45 Frauke Henning-Bodewig I. Introduction...45 II. Ethics, Taste and Decency : Lawyers on Treacherous Ground...46 A. General Definitions...46 B. Business Ethics, Public Policy Issues, Corporate Social Responsibility and the ICC Code...46 III. The Legal Framework for Ethics, Taste and Decency...49 A. Between Ordnungsethik and Handlungsethik...49 B. Article 10bis Paris Convention...50 C. European Law...52 (i) No Comprehensive Regulation of Advertising...52 Directive 2005/29/EC on Unfair Commercial Practices...52 (iii) Directive 2010/13/EC on Audiovisual Media Services...53 D. National Legislation...54 (i) The Different Approaches to the Regulation of Advertising...54 The German Act Against Unfair Competition from 1909 to 2015...55 IV. Ethics, Taste and Decency and the Free Speech Doctrine...58 V. The Role of Enforcement...59 VI. Concluding Remarks...62 4. The Unfair Commercial Practices Directive: Full Harmonisation, Scope and Key Notions...65 Jules Stuyck I. Introduction...65 II. Background and Objectives of the Directive...66
vii III. The Directive s Architecture: A Three Tier System...68 IV. Scope...69 A. Commercial Practices...69 B. B2C Commercial Practices...70 C. Protection of Economic Interests of Consumers...72 D. Personal Scope of Application...72 V. Full Harmonisation...74 VI. Key Concepts...75 A. The Grand General Clause...76 B. The Notion of Misleading Practice...77 VII. Some Questions Relating to the Black List...80 VIII. Concluding Remarks...83 5. Interpretation and Assessment under the Unfair Commercial Practices Directive the ICC Code for Advertising and Marketing and the Commission s Staff Working Document...85 Jan Trzaskowski I. Introduction...85 II. The Unfair Commercial Practices Directive...86 III. The Role of Self-regulation...90 IV. The ICC Code...93 V. The European Commission s Staff Working Document...94 A. The Scope of Application...97 B. National Assessment; Social, Cultural and Linguistic Factors...98 C. Misleading Environmental Claims...99 D. Invitation to Purchase...100 E. Describing a Product as Gratis, Free, Without Charge or Similar...101 VI. Conclusions...102 6. The Fitness Check of the MCAD and UCPD...105 Bert Keirsbilck I. Introduction...105 II. The Two Main Objectives of the Fitness Check of EU Consumer Law...107 III. Are the MCAD and UCPD Fit for Purpose?...109 A. Scope Ratione Materiae, Regulatory Approach and Degree of Harmonisation ( Effectiveness and Efficiency )...109 B. Scope Ratione Personae ( Relevance )...114 C. Interplay with other EU Instruments ( Coherence )...116 IV. Conclusion...118
viii 7. The Impact of the UCP Directive on National Fair Trading Law and Institutions: Gradual Convergence or Deeper Fragmentation?...119 Antonina Bakardjieva Engelbrekt I. Introduction...119 II. Constructing Coherence through the UCPD: An Unfinished Business?...121 A. Coherence-Enhancing Techniques...122 (i) Horizontal Approach...122 Full Harmonisation...122 (iii) Internal Market Clause...123 (iv) Regulative Detail...123 B. Factors Sustaining Diversity...124 (i) Substantive Issues: The Difficulty of Harmonisation through a General Clause...124 Systemic Positioning: The Distinction between B2B and B2C...124 (iii) Institutional Aspects: Limited Guidance on Issues of Institutions and Procedures...126 III. The Impact of the UCPD on National Fair Trading Law and Practice: Effects on Substantive Law...127 A. Half-hearted Implementation of the UCPD...128 (i) Germany and Sweden in an Effort to Domesticate the Directive...129 A Tug-of-War with the Commission...132 B. Methodologies of General Clause Interpretation and the Standard of Professional Diligence...135 (i) Codes of Business Conduct...135 Breach of Statutory Duty as Unfair Commercial Practice...137 (iii) Agency Guidelines...144 IV. Systemic Effects...146 A. Dilemmas in Member States Preserving the Integrated Approach: Delineating the Domain of the UCPD...147 B. Dilemmas of the Divided Approach: Defining the Interface with Other Legal Domains...150 (i) Poland...150 Hungary...151 (iii) Bulgaria...152 C. The B2B Domain Uncharted Waters?...153 V. Adapting Institutions and Enforcement...155 A. A Shift to Public Enforcement?...156
ix B. The Many Guises of Public Enforcement...158 C. The Tenacity of Private Enforcement...161 D. Repercussions on Law in Action...164 VI. Understanding and Working with Diversity...165 8. B2B and B2C Marketing Practices the Case for an Integrated Approach...171 Palle Bo Madsen I. Introduction...171 A. Looking Back...171 B. Looking Ahead...172 II. The Split between B2B and B2C Is It Working?...173 A. Communicating Vessels...173 B. The Scope of the Two Commercial Practices Directives As It Is...174 III. The Confused Marketplace Who s Who? Or What To Do?...177 IV. The Primary Purpose(s) of Marketing Law vis-à-vis Competition Law A Common Denominator?...179 V. Big Business and Small Business (SMEs) One Size Fits All?...181 VI. Almost Quiet on the B2B Front?...183 VII. Conclusion or Wishful Thinking...184 PS...185 9. Applying the UCP Directive in Practice: The Norwegian Experience...187 Tore Lunde I. Introduction...187 II. Enforcement Authorities...188 III. The MCA, Section 20(2) and the Blacklist s Paragraph 28...188 IV. The Market Council s First Decision in the Justin Bieber Case MR-2012-1245-1...189 A. The Facts...189 B. The Legal Assessments...190 V. The Swedish Stardoll Case MD-2012: 14...192 VI. The Market Council s Revised Decision in the Justin Bieber Case MR-2012-1245-2...193 VII. Other Norwegian Cases...195 A. MR-2013-207 Norsk Tipping The Black List s Paragraph 22...195 B. MR-2013-1141 Teaser Advertisements...197 VIII. Final Remarks...200
x 10. Enforcing Unfair Competition Law Cross Border: Cooperation Mechanisms and Consumer Redress Does the System Work?...201 Astrid Stadler I. Some General Remarks on the Enforcement of the Unfair Commercial Practice Directive and the Misleading and Comparative Advertising Directive...201 A. Specifications of the Directives...201 B. Variety of Enforcement Systems in the Member States...202 C. Coordination and Judicial Co-operation in the European Judicial Area...204 II. The Consumer Protection Cooperation (CPC) Network...205 A. Directive 98/27/EC of 19 May 1998 on Injunctions for the Protection of Consumer Interests and Directive 2009/22/EC...205 B. A Network of National Public Enforcement Authorities for Mutual Assistance...205 C. Functioning of the CPC Network...207 III. Judicial Enforcement of Injunctions and Private Damage Claims...209 A. Jurisdictional Regime of the Brussels Ia Regulation...209 (i) Jurisdictional Privilege for Consumer Contracts...209 Consumer Contracts with Traders or Service Providers Domiciled in a Third State...210 (iii) Consumer Associations as Claimants...211 B. Enforcement Regime of the Brussels Ia Regulation...211 C. B2B Situations: Cross-Border Enforcement of Injunctions...212 (i) Brussels I Regulation...212 Brussels Ia Regulation...214 IV. Conclusion...218 11. Unfair Competition Law: How Can It Work as an Important Complement to Intellectual Property Protection. Are There Missing Links?...221 Per Jonas Nordell I. Introduction...221 II. The International Legislative Framework...221 III. The European Legal Framework...224 IV. The Relationship between Intellectual Property and Unfair Competition Law in EU Case Law...227 V. Concluding Remarks...231
xi 12. The Road Ahead Present Status and Need for Reform...233 Ulf Bernitz I. The UCPD and its Objectives...233 II. The Structural Formation...237 III. Assessing the Black List...240 IV. The Level of Consumer Protection against Misleading Commercial Practices...243 V. Role and Importance of the General Clause in the UCPD...246 VI. The B2B Protection Indirectly Offered by the UCPD...248 VII. Is the System of Enforcement and Remedies Satisfactory?...251 VIII. Revision of the MCAD?...253 Index...257