Marketing and Advertising Law in a Process of Harmonisation

by Ulf Bernitz, Caroline Heide-Jørgensen

Overview

The law on marketing and advertising has undergone profound changes based on the EU directives on unfair commercial practices and misleading and comparative advertising. The legislation partially requires full harmonisation and contains a comprehensive blacklist of prohibited practices. However, in other areas, only minimum harmonisation is required. A comprehensive case law from the CJEU has emerged, but still many issues remain open, unclear and debated. The EU Commission has an active interest in the field and has published numerous reports on the question. In addition it has developed revised, comprehensive guidelines on marketing business to consumer (B2C), which are fully discussed here. Further Commission initiatives in the area on business to business (B2B) marketing are also in the making, underlining the importance of this new collection.

Product Details

ISBN-13:	9781509932122
Publisher:	Bloomsbury Academic
Publication date:	09/19/2019
Series:	Modern Studies in European Law
Pages:	288
Product dimensions:	6.14(w) x 9.21(h) x 0.60(d)

About the Author

Ulf Bernitz is Professor of European Law at Stockholm University and Fellow of the Institute of European and Comparative Law and at St Hilda's College, Oxford.
Caroline Heide-Jørgensen is Professor of Competition Law and Unfair Competition at the Faculty of Law at the Unversity of Copenhagen.

Table of Contents

List of Contributors xiii

Table of Cases xv

1 Introduction: Marketing and Advertising Law in a Process of Harmonisation Ulf Bernitz Caroline Heide-Jørgensen 1

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

(ii) 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 Caroline Heide-Jørgensen 19

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

IV Comparative Constitutional Aspects of Freedom of Commercial Speech 30

A Protection of Commercial Speech in the USA 30

(i) Introduction 30

(ii) 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 Frauke Henning-Bodewig 45

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

(ii) 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

(ii) 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 Jules Stuyck 65

I Introduction 65

II Background and Objectives of the Directive 66

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 Jan Trzaskowski 85

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 Bert Keirsbilck 105

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

7 The Impact of the UCP Directive on National Fair Trading Law and Institutions: Gradual Convergence or Deeper Fragmentation? Antonina Bakardjieva Engelbrekt 119

I Introduction 119

II Constructing Coherence through the UCPD: An Unfinished Business? 121

A Coherence-Enhancing Techniques 122

(i) Horizontal Approach 122

(ii) 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

(ii) 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

(ii) 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

(ii) 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

(ii) 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

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 Palle Bo Madsen 171

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 Tore Lunde 187

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

10 Enforcing Unfair Competition Law Cross Border: Cooperation Mechanisms and Consumer Redress-Does the System Work? Astrid Stadler 201

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 la Regulation 209

(i) Jurisdictional Privilege for Consumer Contracts 209

(ii) 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 la Regulation 211

C B2B Situations: Cross-Border Enforcement of Injunctions 212

(i) Brussels I Regulation 212

(ii) 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? Per Jonas Nordell 221

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

12 The Road Ahead-Present Status and Need for Reform Ulf Bernitz 233

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

Editorial Reviews

This is an interesting book on an important and highly debated topic of consumer protection law and policy... the book will prove useful to anyone interested in the current state of the law in the area of unfair commercial practices, and it will contribute to the ongoing dialogue about the effectiveness of the existing fair trading law regime and the need for its future reform.
Common Market Law Review

From the Publisher