Abstract
This article is the International Report prepared following the 2013 LIDC Conference in Kiev which debated legal and policy issues arising where undertakings breach Corporate Social Responsibility policies that they have adopted. The primary focus is on the unfair competition laws of the Reporting Countries - particularly focussing on the EU Unfair Commercial Practice Directive. It reviews the laws of the Reporting Countries - in particular in the following fields: whether a breach is actionable only if it is connected with advertisements or promotions; who can enforce the relevant laws; how a breach can be proven; the remedies available and the relevant courts and tribunals. The report makes certain proposals as to what any law dealing with breaches of CSR policies should include. Finally, it sets out the Recommendations adopted in Kiev by LIDC members following intensive debate which broadly but not completely followed the proposals.
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Notes
- 1.
See http://netimpact.org.
- 2.
Coffee and Farmer Equity practices.
- 3.
Directive 2005/29/EC of the European Parliament and the Council of 11 May 2005 concerning unfair business-to-consumer practices in the internal market OJ 2005, L149, p. 22.
- 4.
Directive 2004/18 of the European Parliament and the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 30.4.2004, L134, p. 114 and EC Directive 2004/17 of the European Parliament and the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ 30.4.2004, L134, p. 1.
- 5.
Art. 1, UCPD.
- 6.
Compass Group UK and Ireland Ltd (t/a Medirest) v Mid Essex Hospital Services NHS Trust [2013] EWCA Civ 200.
- 7.
Indeed, this problem is very real in relation to online contracts. In one well-known example, Gamestation, a UK company, inserted a term that the purchaser’s soul would belong to the company for eternity and never received any comment from any purchaser (see http://scrambledeggsblog.blogspot.co.uk/2010/04/7500-customers-sell-their-soul-to.html).
- 8.
Art. 11, UCPD (“such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may (a) take legal action against such unfair commercial practices…”).
- 9.
Art. 5, UCPD.
- 10.
Art. 2(h), UCPD.
- 11.
Art. 2(d), UCPD.
- 12.
CJEU Case C-304/08 Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH ECR 2010 I-217, ¶36.
- 13.
Art. 6(2)(b), UCPD.
- 14.
Annex 1, Clauses 1 to 4, UCPD.
- 15.
Art. 2(f), UCPD.
- 16.
Para. 2(b) (p. 6 and p. 7), German Report.
- 17.
Art. 7, UCPD.
- 18.
Art. 7(4)(a), UCPD.
- 19.
Para. 2(e) and footnote 35, German Report.
- 20.
A lovely English word that describes a person who is ill-tempered and full of resentment and stubborn notions—particularly towards modern fashions and ways of thinking—and is very “contrary” in his or her thinking. Such a person may despise the whole notion of CSR in the same instinctive sense that he or she despises any form of human rights or anti-discrimination laws!!
- 21.
Art. 7(1), UCPD.
- 22.
Art. 7(4), UCPD—this is a deeming provision. It does not set the test.
- 23.
Art. 10, UCPD.
- 24.
Art. 3(5), UCPD. This does not apply to unfair competition practices relating to financial services.
- 25.
S. 11 German Law on Food and Food Safety (Lebensmittel- und Futtermittelgesetzbuch). It should, however, be emphasised that Germany does have a general B2C law of unfair competition.
- 26.
Art. 2598(3), Italian Civil Code.
- 27.
The Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277). It is of note that on November 2008, the Law Commission of the United Kingdom considered whether there should be a private right of redress for unfair commercial practices. Whilst it held that such had its attractions, it was clear that there were concerns that such would radically change United Kingdom law, make a dramatic difference between consumer contracts and commercial contracts and create a large number of small claims that would have a negative effect on businesses (see http://lawcommission.justice.gov.uk/docs/rights_of_redress_advice1(2).pdf).
- 28.
S. 8 Law on Standards 1971 (Normengesetz 1971). However, this can only be enforced by Austrian administrative authorities.
- 29.
Théorie des obligations naturelles.
- 30.
Unfair Trading Regulations 2008.
- 31.
E.g., see CJEU C-533/06 O2 Holdings v 3G UK Ltd ECR 2008 I-4231.
- 32.
Art. 11, UCPD.
- 33.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Towards a European Horizontal Framework for Collective Redress” COM (2013) 401/2 (http://ec.europa.eu/justice/civil/files/com_2013_401_en.pdf).
- 34.
Guidance on how business and organisations can operate in a socially responsible way.
- 35.
Since 1995, Belgian companies must file a “bilan social”, which is a social report that includes information on environmental and social issues.
- 36.
COM (2011) 681 final of 25th October 2011.
- 37.
Fourth Council Directive 78/660 on 25th July 1978 based on Art. 54(3)(g) of the Treaty on the annual accounts of certain types of companies OJ 14.8.1978, L222, p. 11; Seventh Council Directive 83/349 of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts OJ, 18.7.1983, L193, p. 1.
- 38.
The proposal is that Art. 46 Directive 78/660/EC and Art. 36 Directive 83/49/EEC are amended (see Art. 1 of the draft amending directive).
- 39.
Defined as a company whose average number of employees exceed 500 and whose balance sheet exceeds €20 million or a net turnover of €40 million.
- 40.
Ibid. Although not wholly clear, it seems that such should relate to the CSR policies.
- 41.
In fact, in the United States, the Dolphin Protection Consumer Information Act describes the conditions in which a tuna product may be labelled dolphin safe.
- 42.
Guidelines on the applicability of Article 101 of the TFEU to horizontal cooperation agreements, OJ 14.11.2011, C 11, p. 1.
- 43.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Towards a European Horizontal Framework for Collective Redress” Para. 30, COM (2013) 401/2 (http://ec.europa.eu/justice/civil/files/com_2013_401_en.pdf).
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Tritton, G. (2015). International Report. In: Kobel, P., Këllezi, P., Kilpatrick, B. (eds) Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social Responsibility. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-45753-5_21
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