UNFAIR PRACTICES IN BUSINESS-TOCONSUMER AND BUSINESS-TO-BUSINESS CONTRACTS: A PRIVATE ENFORCEMENT PERSPECTIVE - 10.12818/P.0304-2340.2017vBIp335

Résumé

Unfair business practices hamper the growth of the European Single Market in both instances of practices directed to consumers and to other businesses. The digital revolution, while generating unprecedented trade opportunities, is amplifying the magnitude of this hazard. Though not tuned yet along the notes of the digital challenge, the EU law has largely contributed to the emergence of a European Private Law aimed at discouraging unfair practices, particularly when they may harm the interests of consumers. After briefly comparing some of the main aspects of national regimes on BtoC and BtoB unfair practices, this article addresses the issue of private enforcement of consumers’ and businesses’ rights when affected by unfair practices. Progressively eroding the principle of national procedural autonomy, EU law is deeply changing national enforcement systems in the area of fundamental rights. More than providing rules, the EU relies on general principles such as effectiveness, proportionality, dissuasiveness. These three principles, here presented as a triad, help examining the potentials and shortcomings of current enforcement mechanisms as developed at national level, distinctively for BtoC and BtoB relations. Whereas remedial innovation is emerging in the design of civil remedies against BtoC unfair practices, enforcement of business rights still largely relies on the tools provided by general contract, tort or unfair competition law, so heading to results that are not always consistent with the aim of an effective, proportionate and dissuasive protection. Within a multilevel system of rights’ protection, the application of the triad poses a major challenge for which comparative analysis and inter-institutional and inter-professional dialogue are pivotal. Of course, this dialogue shall not be confined within the boundaries of the European Single Market; among other factors, the digital revolution suggests that the need for an effective protection of consumers’ and businesses’ rights is a global concern.