Nesąžiningos komercinės praktikos draudimo B2C santykiuose teisinio reguliavimo ir taikymo problemos ; Problems of legal regulation and application of prohibiting unfair commercial practice in b2c relationships

Abstract

Directive 2005/29/EC concerning unfair B2C commercial practices in the internal market was adopted by the European Parliament and Council on 11 May 2005 and was implemented in Lithuania on 21 December 2007 as the Law on the Prohibition of Unfair Commercial Practices to Consumers. Thus our country began to regulate the protection against unfair commercial practices harming consumers' economic interests. This paper deal with the problems of legal regulation and application of this institute. In respect that the area of harmonised law is so closely intertwined with the law of unfair competition, the paper first and foremost presents the genesis of unfair B2C commercial practices regulation in European Union. The novelty of unfair commercial practices institute in Lithuanian legal system makes this aspect much more important. The paper also examines the problems of legal regulation and application of prohibiting unfair commercial practices in B2C relationships. The Unfair Commercial Practices Directive provides for maximum harmonisation. This principle not only raised much concern in the legal literature but also yield a number of difficulties in the interpretation of the directive. For this reason, the paper focuses not only on the maximum harmonization mechanism but also on the scope of the Unfair Commercial Practices Directive which is particularly related with the latter. In this section the paper especially emphasizes the concept 'commercial practices' which covers a wide variety of business behaviour, some additional delimitations which are not explicitly set out in the Unfair Commercial Practices Directive and its restriction only to B2C relations. Moreover, the paper deals with the concept 'average consumer' and its normative orientation of European Community law. It assesses the choice of the average consumer test and reveals its strengths and weaknesses. The paper also analyzes reasoning of the Unfair Commercial Practices Directive structure. The Community legislator has not provided any guidance on the possible consequences which result from the threefold structure. That is why there is considerable uncertainty. For this reason, the paper also assesses the relationship between the prohibitions contained in the directive.