Literatura jurídica

Unfair Commercial Practices Directive, Chapter 4, Article 11 Unfair Commercial Practices Directive, Annex I

This article contains a short description of the novelties arising from the implementation of the UCP Directive by Law 29/2009 in the Spanish unfair competition's legal framework.

The authors underline that, further to the importance of the decision of maintaining the Advertising Act in force, Law 29/2009 represents an effort to integrate consumer protection regulations in a free functional market. The article clarifies that unfairness towards the consumers will be determined by two factors: (1) lack of diligence in the relationship with the consumers, and (2) that said conduct significantly distorts or is suitable for distorting the average consumer's behaviour.

In addition, it is highlighted that -- notwithstanding the new draft of articles 5, 7 and 8 of the Unfair Competition Act -- it was necessary to include a new chapter (Chapter III) on commercial practices involving consumers and users, and that Chapter V is intended to regulate codes of conduct.

Finally, the article stresses that there have been amendments on the procedural side:

(1) the burden of proof has been inverted, so that it is the trader who will have to collect/ produce evidence on the truthfulness and accuracy of his assertions;

(2) legal standing rules have been modified;

(3) cease-and-desist actions against unfair practices affecting consumers and users have been introduced; and

(4) the aforementioned actions can be used when the trader signed a code of conduct.