This article presents in detail the purpose and the main concepts and characteristics of Directive 2005/29/EC. It also includes a proposal for replacement of the Directive with a Regulation, (Proposal 2011 for a UCP Regulation) in order to eliminate the dysfunctions identified while implementing this Directive.
The author claims that within the few years of the Directive’s implementation it has been proved that the change of the legal framework is not sufficient for the correct market operation. The author thinks that the participants in the single market themselves should also try (in parallel with the legal provisions) to integrate their behaviour in accordance to market ethics enhancing that way the correct market operation.
In the article, the legal mechanism of the Directive is presented, by analysing its clauses. In particular, the article focuses on the clause on the prohibition of unfair commercial practices, the two clauses on the prohibition of the misleading commercial practices and the aggressive commercial practices and on the blacklist of the per se prohibited commercial practices.
Moreover, the article proposes the abbreviation and the removal of some specific paragraphs and articles, as well as the alteration of some of the legal prerequisites. In this vein, the author suggests to extend the meaning of “misleading” to include not only those conducted by an action but also those conducted with an omission.
The author concludes that it is important to introduce a new Regulation on UCP (rather than a Directive). This would have as a direct impact the extension of the law on unfair competition by enriching its provisions with rules on consumer protection. In this manner the horizontal relations between competitors and the vertical relations between competitors and consumers will be simultaneously regulated.