On 14 March 2013, the European Commission (the "Commission") published a Communication on the application of Directive 2005/29/EC of 11 May 2005 on unfair business-to-consumer commercial practices (the "Directive") along with a first assessment report on the application of the Directive (respectively, the "Communication" and the "Report").

The Communication outlines the main conclusions that can be drawn from the initial experience in enforcing the Directive and sets out actions to maximise the benefits of the Directive for Single Market integration and consumer protection. The Report contains a detailed assessment of the application of the Directive, based on questionnaires sent to EU Member States and to stakeholders.

According to the Communication and the Report, the implementation of the Directive has (i) improved consumer protection in and across EU Member States; (ii) simplified the regulatory environment; and (iii) helped remove obstacles to cross-border commerce. Certain provisions of the Directive, such as the "black list" of commercial practices that are to be considered unfair in all circumstances in Annex I to the Directive, have been useful tools to enforcers.

However, some issues remain. The Directive's full harmonisation aspect has been the most problematic in implementing the Directive. Doubts also remain as regards specific provisions of the Directive. For instance, stakeholders have suggested that green claims, such as "eco-friendly" and "biodegradable", are not used responsibly and are often very general, vague and not properly defined. Moreover, consumer associations have signalled that it was difficult to verify the truthfulness of certain claims, especially in the energy, cosmetics, cars and detergents sectors. Finally, EU Member States have highlighted aggressive practices targeting (i) children in the field of on-line games; and (ii) the elderly.

In response to the questionnaires, the Commission considers that it would be inappropriate to amend the Directive at this stage, as it believes that the enforcement experience in the EU Member States is still too limited in time for such a large body of legislation. Consequently, the Commission plans to focus its attention on the coherence of the implementation of the Directive in several ways.

Firstly, it will seek to ensure full conformity of national laws with the Directive by closely monitoring the correct transposition and application of the Directive in all EU Member States.

Secondly, it will enhance enforcement and administrative cooperation between EU Member States. The Commission will focus its efforts on five key sectors, which include travel and transport, the digital and on-line markets, environmental claims, financial services and immovable properties. Specific consideration will be given to practices which target vulnerable consumers, in particular the elderly and minors. Further, the Commission wants a stronger enforcement response to price comparison websites, which do not clearly disclose the identity of the trader operating the site and/or whether retailers pay to have their products and services displayed.

Thirdly, it will ensure the uniform and adequate application of the Directive in the EU Member States by further developing the guidance document in response to the input received from national enforcers and other stakeholders. This document clarifies key concepts and provisions perceived as problematic (See, VBB on Belgian Business Law, Volume 2009, No. 12, p. 16, available at www.vbb.com). The Commission will also seek to improve, expand and update the on-line legal database on the Directive which is available at: https://webgate.ec.europa.eu/ucp/public/index.cfm?event=public.home.show.

Finally, it will seek to play a more prominent role in reinforcing cooperation between national authorities by having a more active role in encouraging a coherent application of the Directive, in particular with respect to unfair practices having a cross-border dimension such as those taking place in the on-line environment which raise common questions to enforcers.

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