Business-to-consumer harassment, Unfair Commercial Practices Directive and the UK: a distorted picture of uniform harmonisation?

Abstract

The Unfair Commercial Practices Directive 2005 (UCPD) attempts to achieve a full harmonisation of the rules against unfair business-to-consumer (B2C) practices. However, this paper argues that the UCPD cannot resolve disparities in national laws because of a lack of clarity of concepts and the existence of uncertain substantive and enforcement provisions. This is demonstrated by the Ferguson v British Gas case which extended the loosely formulated UK Protection from Harassment Act 1997 (PHA) to B2C harassment cases covered by the UCPD. Ferguson highlights contradictions in the approaches of the two systems which suggest loopholes in the UCPD’s full harmonisation goal. As well as proposing the amendment of the PHA, the paper suggests that complete harmonisation requires that issues of clarity of concepts, definitions, liability, ancillary tort claims and enforcement rights which create room for creative interpretations and lack of uniformity should be addressed. A one-stop legislation approach to transposition can also improve harmonisation.