Fair Trading in EC Law Information and Consumer Choice in the Internal Market

by Radeideh, Malek

• ISBN13: 9789076871400
• ISBN10: 907687140X
• Format: Hardcover
• Copyright: 2005-03-01
• Publisher: Europa Law Publishing

Summary

Fair trading, that is to say the idea of a fair market-behavioral standard in the pre-contractual relationship between business and consumers, has played a fundamental role in EC law since the very beginning of the Community. After early attempts at horizontal harmonization failed, a piecemeal legislative approach was adopted, and has resulted in an inharmonious coexistence of numerous sectoral Community measures concerning fair trading. At the same time, the European Court of Justice has developed in its case law a general concept of fair trading on the basis of the EC Treaty provisions on free movement. The author provides a systematic and comprehensive analysis of primary law as interpreted by the European Court of Justice in its relevant case law and of Community legislation pertaining to fair trading. He demonstrates that the countless specific fair trading rules are based on a common general concept of fair trading. The author thus unveils a principle of fair trading in the acquis communautaire, which he defines not only in content but also in scope, proving it to be a general principle of Internal Market law.

Table of Contents

Introduction
Fair trading -- A deficiently analysed key area of Community law	3	(1)
The scope of this work	4	(10)
Positive delimitation	4	(1)
Fair trading	4	(2)
Principle	6	(1)
Community law	6	(2)
Negative delimitation	8	(1)
National law	8	(1)
Competition law	9	(2)
Contract law	11	(3)
Enforcement	14	(1)
Methodology and structure of this work	14	(5)
Fair Trading in Primary Community Law
The significance of primary law	19	(2)
From the laconic Treaty to expressive case law	21	(3)
The relationship between fair trading and free movement	24	(5)
The relevant freedoms	24	(2)
Fair trading and the scope of free movement	26	(1)
The basic principle	26	(1)
The Keck doctrine	27	(2)
The conceptual framework of the Court's judgments	29	(11)
Negative integration	29	(3)
The source of a principle of fair trading in the Court's reasoning	32	(1)
Justification of a national rule as the starting point	32	(4)
Proportionality as the central source	36	(4)
Free movement case law	40	(43)
The selection and presentation of the cases	40	(1)
Selection	40	(2)
Presentation	42	(1)
Market transparency and consumer information	43	(1)
The start of fair trading reasoning	43	(1)
Information rather than prohibition	44	(3)
Market transparency as the underlying concept	47	(2)
Access to consumer information	49	(3)
No suppression of correct information	52	(1)
The quality of the information	53	(2)
Limits to consumer information	55	(1)
The image of the consumer	56	(1)
Cross-border variety and evolution	57	(2)
The complexity of determining factors	59	(2)
The relevance of misconceptions and the image of the consumer	61	(3)
European diversity of consumers	64	(4)
The impact of the Keck doctrine	68	(1)
The judgment	69	(2)
The impact on the scope of fair trading reasoning	71	(1)
Rules that lay down requirements to be met by goods	71	(2)
`Certain' selling arrangements	73	(1)
The Keck proviso	74	(5)
Keck and the free movement of services	79	(2)
The impact on the substance of fair trading reasoning	81	(1)
Methodological framework	81	(1)
Empirical considerations	81	(2)
Concluding remarks	83	(6)
Fair Trading in Secondary Community Law
The regulatory approach	89	(19)
The legal basis for harmonisation	90	(4)
Piecemeal approach and content of Community legislation	94	(1)
Directive as the leading type of legislative measures	95	(2)
Scope and degree of harmonisation	97	(1)
Complete or partial, horizontal or vertical harmonisation -- the piecemeal approach	97	(1)
Maximum and minimum harmonisation	98	(3)
The country of origin principle	101	(6)
The conclusiveness of secondary law for a principle of fair trading	107	(1)
Fair trading as shaped by Community legislation	108	(70)
The historical background	108	(5)
The selection and presentation of Community legislation	113	(2)
Horizontal harmonisation -- Misleading and comparative advertising	115	(7)
Quasi-horizontal harmonisation -- Price indications	122	(2)
Vertical harmonisation	124	(1)
Selling technique as the leading object	124	(1)
Doorstep selling	125	(4)
Distance selling in general	129	(4)
Distance selling in particular: financial services	133	(3)
Medium as the leading object	136	(1)
Television	136	(4)
The Internet	140	(5)
Good or service as the leading object	145	(1)
Foodstuffs	145	(9)
Cosmetic products	154	(3)
Medicinal products	157	(3)
Tobacco	160	(2)
Consumer Credit	162	(3)
Investment services	165	(5)
Insurance mediation	170	(1)
Package travel	171	(2)
Timesharing	173	(1)
Public interest as the leading object	174	(1)
Data protection	174	(3)
Anti-discrimination	177	(1)
Concluding Remarks	178	(5)
The Existence of a Principle of Fair Trading and its Signification
The substance of the framework set by Community law	183	(1)
The definition of the principle of fair trading	184	(1)
The notion of the `consumer'	184	(5)
The formal definition of the consumer	185	(2)
The image of the consumer as a yardstick for fair trading	187	(2)
Information as the fundamental instrument for (fair) trading	189	(3)
The indispensability of information exchange for an operational market	190	(1)
Is the role of information in the Internal Market the same as in a domestic market?	191	(1)
Having full knowledge	192	(20)
Access to information	192	(3)
The duty to disclose information	195	(1)
Recognisability	196	(1)
Correctness	197	(1)
Comprehensiveness	198	(1)
Objectively necessary information	198	(6)
Subjectively necessary information	204	(3)
Unnecessary information	207	(1)
Comprehensibility	207	(1)
Information simplification	208	(1)
Language	209	(1)
The duty not to mislead	210	(1)
The approval of disclosing correct information	211	(1)
Being enabled to make a choice	212	(7)
Rationality of the information	213	(2)
Adequate decision-making circumstances	215	(1)
Neutrality of the situation of information disclosure	215	(1)
Sufficient deliberation time	216	(1)
Preservation of consumer sovereignty	217	(1)
Capacity of the consumer to process the information	218	(1)
Concluding remarks	219	(4)
The Ambit of the Principle of Fair Trading
Fair trading -- a general principle of Community law?	223	(4)
Aligning the principle's substantive universality with the field of application	223	(1)
The notion of general principles of Community law	224	(2)
Assessing the principle of fair trading	226	(1)
Fair trading -- a general principle of Internal Market law	227	(16)
Legal considerations	228	(1)
The relevant legal sources	228	(1)
Indications in the case law of the Court	229	(1)
Starting point: fair trading as a national interest	229	(1)
Fair trading redefined as a Community interest	230	(2)
Comparison with the Court's reasoning regarding fundamental rights	232	(1)
Indications in the Treaty	233	(1)
Consumer protection inherent in the objective of the Internal Market	234	(2)
Fair trading inherent in the objective of consumer protection	236	(1)
Consequence: fair trading inherent in the objective of the Internal Market	237	(1)
Conceptual considerations	237	(1)
Fair trading as a guarantee of information exchange	238	(1)
Fair trading as a legal remedy against consequences of market failures	238	(1)
Imperfect competition	239	(2)
Information asymmetries	241	(1)
Fair trading as a principle of Internal Market law	242	(1)
Consequences of the ambit	243	(4)
Towards a General Legislative Framework for Fair Trading
Assessing current legislative initiatives in the light of the principle of fair trading	247	(1)
The proposal for a regulation concerning sales promotions	247	(4)
The objective and the content of the proposed regulation	248	(1)
Assessment of the proposal with regard to a general legislative framework for fair trading	249	(2)
The initiative for a Directive concerning unfair commercial practices	251	(29)
The way to the Council's Common Position	251	(2)
The structure of the Directive and the criteria for analysis	253	(1)
General considerations	254	(1)
Purpose	254	(1)
Definitions	255	(1)
Scope	256	(2)
Unfair commercial practices	258	(1)
The general prohibition of unfair commercial practices	259	(1)
The general test for determining unfairness	260	(1)
The material distortion of the consumers' economic behaviour	261	(4)
The requirements of professional diligence	265	(3)
Misleading and aggressive commercial practices as particular sub-categories	268	(1)
Misleading commercial practices	269	(1)
Misleading actions	269	(1)
Misleading omissions	270	(5)
Aggressive commercial practices	275	(1)
Comparison of the established principle of fair trading with the concept of the Directive	275	(1)
The concepts	276	(1)
Comparison	277	(2)
Conclusion	279	(1)
The future of the Directive	280	(10)
Can the Directive be legally adopted?	280	(1)
Legal basis	280	(3)
Proportionality and subsidiarity	283	(1)
Compatibility with the existing principle of fair trading	284	(1)
Do we need the Directive?	285	(5)
Annex	290	(20)
Bibliography	310	(22)
Table of Cases	332