Legal Literature

Unfair Commercial Practices Directive, Chapter 1, Article 2 Unfair Commercial Practices Directive, Chapter 1, Article 3 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7 Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

The article describes the specific legal nature of the UCP Directive by underlining the difficulties in the process of the national implementation due to the employment of general clauses in the Directive.

The author gives an overview of the European approach of implementation in the different member states and describes certain provisions in the German implementation. The author further underlines the importance of the  interpretation of the implementation in accordance with the UCP Directive.

He then comes to the following conclusion:

If the issuer of the UCP Directive makes use of abstract legal provisions and general clauses, this results in a shift of the interpretation of the national provisions in accordance with the UCP Directive: in the classic understanding the laws of the member states are applied autonomous and thereafter examined in view of their compliance with the Directive. In the area of abstract provisions and general clauses however, the government agencies and courts of the member states have to specify their national general clauses in light of the UCP Directive.

Therefore, not the wording of the UCP Directive nor the wording of the respective provisions implemented into national law is decisive for the EU wide harmonized enforcement of the abstract provisions and general clauses of the UCP Directive, but its concrete application by the government agencies and courts of the member states. Instead of removing grown legal cultures of the member states, the EU should remove the existing gaps, in particular the weak harmonization of enforcement, and therefore act on the implementation practice. The well-functioning structures that have been developed for a homogenous EU antitrust law through a parallel enforcement by the Commission and the antitrust authorities and courts of the member states, might serve as a blueprint.