The Scope of Application of the UCP Directive : "I Know What You Did Last Summer"

Abstract

The ECJ judgments VTB-VAB and Plus have simultaneously made clear how far Directive 2005/29 on unfair commercial practices in the Internal Market (hereinafter: UCP Directive) is going to bear upon the future market conduct of market participants and raised the question of whether its scope of application, if defined in such a comprehensive manner, is covered by its purpose. Following an introduction (I.), this paper will first try to shed light on the UCP Directive's provisions relating to the scope of application and on the problems relating to them (II.). Then it will critically analyse the VTB judgement (III.), before explaining the lessons learnt (IV.). The recent judgements have left unanswered, on the one hand, questions relating to the treatment of after-sale conduct without market effects and, on the other, practices with such market effects engaged in by science, consumer associations or media. They will be discussed (V.). Finally, the results will be summarised (VI.).