Commercial Practices in European Union

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Introduction The memorandum is intended to deal with two issues arising from Mr.Nedkova related to the unfair commercial practice Directive (UCPD) in European Union. First of all, whether a commercial practice in Mr.Nedkova case considered as “unfair” and to what extent commercial practice may be regarded as unfair? Furthermore, the second issue concerning on which measures may be taken by Bulgarian Consumer Protection Authority for ensure compliance of “Money4U” with the provisions of the Unfair Commercial Practices Directive? Assessment of “Unfair” To begin with, there are three steps in order to analyze whether a commercial practice in present case fall within the scope of “unfair” under the UCPD. First of all, it is important to check whether advertisement of “Money4U”in present case violate the “black list” of Annex I under the UCPD.

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The Black List includes the 31 ‘exhaustive list of “misleading” and “aggressive” practices which shall’, in al circumstances, be considered as unfair and shall ban uniformly in member states. If the commercial practice can not be found in black list of Annex I, then second step is to test whether “commercial practice constitute a misleading (Art 6, and Art7 UPCD) OR an aggressive practice (Art8, and Art9 UPCD) which is likely to distort the transactional decision of the average consumer”[1]? If practice is not fall with the scope of Art 6 to Art9 UPCD, third step is to analysis whether commercial practice infringes the professional diligence under Article 5(1) of UPCD. In the end, if none of above three steps can found the infringement of commercial practice, it will not consider commercial practice as unfair under the UNPD. According to paragraph 14 “black list” of UNPD provide that misleading practice shall ban when‘ Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.’[2] In this case, “Money4U” advertised its loan services by stating that anyone who registers on its website can receive 10 lev. Or 20 lev credit for introduction of friends. A commercial practice, in this case, shall be prohibited under UNPD. Next, in order to make sure this commercial practice is considered as “unfair” under the UNPD. It is necessary to assess the second steps.

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