Unfairness under the Consumer Protection from Unfair Trading Regulations

Introduction, The Unfair Commercial Practices Directive (UCPD) was adopted in 2005 and requires Member States to empower bodies to take preventive action against unfair business-to-consumer practices. This has been implemented in the UK by the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008, which define such practices as forms of ‘Community infringement’ under the Enterprise Act (EA), thereby providing enforcement authorities with the powers to seek enforcement orders against such practices. This now coexists with the pre-existing powers to seek enforcement orders against other practices that represent ‘Community infringements’ and those that represent ‘domestic infringements’. This chapter considers the concept of unfairness in the CPUTR, in particular what it adds to regulatory ideas of unfairness in the financial services sector. The regime clearly catches financial service transactions, covering commercial transactions in relation to ‘any goods or service including immovable property, rights and obligations’. Indeed, financial services transactions are given special treatment, in that they are excluded from the ‘internal market clause’, which, when applicable, will prevent Member States from exceeding the level of protection provided for in the Directive. It is expressly provided by Article 3 (9) that in relation to ‘financial services’: Member States may impose requirements which are more restrictive or prescriptive than this Directive in the field which it approximates. Coverage, regulatory context and the general notion of unfairness The UCPD unfairness concept is of particular importance because of the sheer range of activities it regulates within any given transaction.