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EUI Working Papers DEPARTMENT OF LAW EUI Working Papers LAW 2010/21 DEPARTMENT OF LAW NEW CHALLENGES FOR THE ASSESSMENT OF FAIRNESS IN A COMMON MARKET Edited by Hans-Wolfgang Micklitz, Viktor Smith & Mette Ohm Rørdam Contributors: Jesper Clement, Gorm Gabrielsen, Jochen Glöckner, Peter Møgelvang-Hansen, Marcin Rogowski, Henrik Selsøe Sørensen, Viktor Smith, Jan Trzaskowski EUROPEAN UNIVERSITY INSTITUTE, FLORENCE DEPARTMENT OF LAW New Challenges for the Assessment of Fairness in a Common Market JESPER CLEMENT, GORM GABRIELSEN, JOCHEN GLÖCKNER, PETER MØGELVANG- HANSEN, MARCIN ROGOWSKI, HENRIK SELSØE SØRENSEN, VIKTOR SMITH, JAN TRZASKOWSKI EDITED BY HANS-WOLFGANG MICKLITZ, VIKTOR SMITH, METTE OHM RØRDAM EUI Working Paper LAW 2010/21 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © 2010 Hans-Wolfgang Micklitz, Viktor Smith & Mette Ohm Rørdam (Eds.) Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Author/Editor Contact Details Hans Wolfgang Micklitz Professor of Economic Law European University Institute Florence, Italy Email: [email protected] Viktor Smith Associate Professor, PhD Centre for Language, Cognition and Mentality Department of International Culture and Communication Studies Copenhagen Business School Dalgas Have 15 2000 Frederiksberg, Denmark Email: [email protected] Mette Ohm Rørdam PhD Fellow Department of Law Copenhagen Business School Solbjerg Plads 3 C 5 2000 Frederiksberg, Denmark E-mail: [email protected] Jesper Clement Assistant Professor Department of Marketing Copenhagen Business School Solbjerg Plads 3C 3 2000 Frederiksberg, Denmark Email: [email protected] Gorm Gabrielsen Associate Professor Department of Finance and Center for Statistics Copenhagen Business School Solbjerg Plads 3 B 4 2000 Frederiksberg, Denmark Email: [email protected] Jochen Glöckner Professor Fachbereich Rechtswissenschaft Lehrstuhl für deutsches und Europäisches Privat- und Wirtschaftsrecht Universität Konstanz Fach D 98 78457 Konstanz, Germany Email: [email protected] Peter Møgelvang-Hansen Professor Law Department Copenhagen Business School Solbjerg Plads 3 C 5 2000 Frederiksberg, Denmark Email: [email protected] Marcin Rogowski PhD Researcher European University Institute Florence, Italy Email: [email protected] Henrik Selsøe Sørensen Associate Professor Centre for Language, Cognition and Mentality Department of International Culture and Communication Studies Copenhagen Business School Dalgas Have 15 2000 Frederiksberg, Denmark Email: [email protected] Jan Trzaskowski Associate Professor Department of Law Copenhagen Business School Solbjerg Plads 3 C 5 2000 Frederiksberg, Denmark E-mail: [email protected] Introduction ........................................................................................................................................... 1 Legal Uncertainty – A Neglected Aspect of Unfair Commercial Practices Law in Europe? ......... 3 Marcin Rogowski The Scope of Application of the UCP-Directive – “I Know What You Did Last Summer” ......... 17 Jochen Glöckner Towards a Common European Marketing Law ............................................................................... 35 Jan Trzaskowski Methods of Legal Regulation and Real-Life Case Scenarios ........................................................... 49 Peter Møgelvang-Hansen What’s in a (Food) Name? From Consumer Protection to Cognitive Science – and Back .......... 59 Viktor Smith Match and Mismatch Between Consumer Knowledge and Packaging Design.............................. 75 Jesper Clement, Henrik Selsøe Sørensen & Gorm Garbielsen Legal Uncertainty – A Neglected Aspect of Unfair Commercial Practices Law in Europe Abstract The regulation of unfair commercial practices in Europe did receive probably about the same amount of applause as of criticism from the very beginning. The practical questions addressed to the Courts remind of the theoretical problems that are still on the table. It seems that European lawmakers did contribute to the legal uncertainty, which triggered doubts as to what commercial practices are prohibited and what are illegal. In this article it is claimed that it is not the ever-complicated business activities that call for a complex legal regulation but the inappropriate legal standards that created legal uncertainty and – in consequence – added to the compliance doubts of EU businesses. Keywords Directives, European law, harmonization The Scope of Application of the UCP-Directive – “I Know What You Did Last Summer” Abstract The ECJ judgments VTB-VAB and Plus have at the same time made clear how far the Directive 2005/29 on Unfair Commercial Practices in the Internal Market (hereinafter: UCP Directive) is going to bear upon the future market conduct of market participants and raised the question whether its scope of application, if defined in such a comprehensive manner, is covered by its purpose. Following an introduction, this paper will first try to shed some light on the UCP Directive’s provisions relating to the scope of application and the problems relating to them. At the bottom line a gulf between the protective purpose of the UCP Directive and its substantive scope of application will be uncovered. A critical analysis of the VTB judgement will assess whether the ECJ has closed the gap. The lessons learnt will be summarized. The recent judgements have left unanswered questions relating to the treatment of after-sale conduct without market effects and practices with such market effects engaged in by science, consumer associations or media. Keywords Implementation, integration theory, media, acquis communautaire, economic law, harmonisation, preliminary rulings, European Court of Justice Towards a Common European Marketing Law Abstract In two judgments the Court of Justice of the European Union establishes that the Unfair Commercial Practices Directive (2005/29) must be interpreted as precluding national legislation prohibition commercial practices concerning combined offers and use of prize competition and lottery, without taking account of the specific circumstances of individual cases. Member States may not adopt stricter rules than those provided for in the directive, even in order to achieve a higher level of consumer protection. A number of Member States have apparently been surprised by the decisions, which will require substantial changes in national law. This article discusses the judgments and illustrates some of the challenges in the shaping of a new European marketing law. Keywords Unfair commercial practices, harmonisation, preliminary rulings, European Court of Justice, interdisciplinary approach Methods of Legal Regulation and Real-Life Case Scenarios Abstract Both per se prohibitions and concrete case-by-case evaluation according to the 'average consumer' benchmark are well known in food law as different legal methods to counteract misleading practices. The two regulatory methods form parts of the legal starting points of the FairSpeak project. The project deals with potentially misleading presentation of food and aims at providing more precise operational knowledge to assist decision makers and practitioners confronted with questions of what is likely to mislead the 'average consumer'. Furthermore, it aims at providing tools for evaluating to what extent per se prohibitions (food standards, legal definitions etc.) represent a better method of regulation. One of the first steps of the FairSpeak project has been a study of administrative cases on misleading presentation of food brought before the Danish food authorities in 2002-2007. The case study aimed i.a. at identifying case scenarios of real life importance and at identifying essential research questions and providing a basis for formulating specific hypotheses to be operationalised and tested in experiments. The article highlights and discusses some of the results of the case study. Keywords Unfair commercial practices, harmonisation, unfair food labelling, average consumer, regulation What’s in a (Food) Name? From Consumer Protection to Cognitive Science – and Back Abstract While the legal basis for determining whether a food name is fair or misleading when applied to a particular product is given by EU law, the specifics to which the rules must be applied in individual instances are cognitive and communicative rather than legal by nature: It is a matter of what words mean, and how (average) consumers can be expected to understand them in view of their general world knowledge and the cognitive and communicative skills at their disposal. Using a quantitative and qualitative review of 821 Danish cases on misleading food naming and labeling as an empirical frame of reference, this article offers a more detailed analysis of conflict scenarios relating specifically to food names. The pre-theoretical assumptions and arguments put forward by the immediate actors in the case files are transposed into more exact theoretical terms, revealing, among other things, the very different cognitive essence of conflict scenarios relating to established (familiar) and novel (unfamiliar) food names, respectively. The analysis aims at providing new cues for the continued
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