The Unfair Commercial Practices Directive in the UK

Abstract

This article shows that the UK has blended preventive and traditional UK criminal enforcement techniques to implement the UCPD; these techniques have been 'Europeanised' by the UCPD unfairness concepts; and the UCPD may also cause UK private law to be Europeanised in more 'spontaneous' ways. However, there are limits to this Europeanising effect. First of all, the 'home grown' financial services regime is likely to remain dominant, inter alia, because of the high standards of protection it sets and because of Article 3(9) of the UCPD, which exempts financial services from the full harmonisation principle. Secondly, judges may limit the extent of Europeanisation. The UCPD's European concepts of fairness often have the potential to increase standards of protection relative to pre-existing UK law. However, these concepts are sufficiently open textured as to run the risk of being interpreted in non-protective ways, based on underlying UK judicial ethics of self-interest and self-reliance. So far, High Court judges have taken quite a protective approach to interpretation of the UCPD concepts. However, the full impact of the UCPD European fairness standards in the UK will only become clear when cases reach the appeal courts; and the ECJ more fully develops its approach.