Full harmonization and its possible (un)fair impact

Keywords: unfair commercial practice, misleading practice, consumer, harmonisation, CHS Tour Services

Abstract: The article comments on the Court of Justice judgment dealing with application of criteria to be used while assessing fairness or unfairness of commercial practices (C-435/11). The Unfair Commercial Practices Directive provides for general criteria, further for criteria of the most frequent unfair practices, i.e. misleading and aggressive practices, and finally, it enumerates exhaustively unfair practices that are prohibited under all circumstances; in the latter case, the relevant authorities do not assess their unfairness. In the judgement in question, the Court of Justice had to determine, based on a question of Austrian Supreme Court, how a commercial practice should be assessed in case where a practice objectively fulfils criteria of a misleading practice while, on the other hand, there was no breach of professional diligence committed. According to Court of Justice, fulfilment of professional diligence is not to be examined in order to determine that a practice is misleading; that is under condition that the practice fulfils all criteria expressly provided for this type of unfair practice. The Court of Justice based this conclusion (among others) on the fact that features of a misleading practice are dealt with in the Directive from the consumer’s perspective as an addressee; consequently, there is no need to examine professional diligence. The Court of Justice’s conclusion has certain logic; nevertheless there might be a question if there is not another legal interpretation possible and if such a decision is fair.