Réflexions sur une meilleure intégration du droit de la concurrence et du droit des pratiques commerciales déloyales

Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market is an instrument of full harmonisation in this field. This means that Member States do not, as a matter of principle, have the power to take stricter measures than those provided for by the Directive at the EU level. By contrast, the law of unfair competition and business-to-business commercial practices remains essentially national. Finally, the competition rules should be mentioned. They prohibit i.a. restrictive practices of undertakings both at the EU level and at the level of the Member States. There is a high degree of convergence between the EU competition rules and the competition rules of the Member States. This paper first examines the Unfair Commercial Practices Directive, as interpreted by the case law of the Court of Justice, as well as Directive 2006/114/EC concerning misleading and comparative advertising. Pursuant to this Directive there is only a minimum harmonisation of business-to-business misleading advertising. The relationship between these two branches of the law (unfair business-to-consumer commercial practices, unfair business-to-business commercial practices and competition law) raises a lot of questions. The difference in the degree of harmonisation between Directive 2005/29 and Directive 2006/114 (full versus minimum harmonisation) in itself can lead to conflicts. There is on overlap between the application of the rules on business-to-consumer commercial practices and the rules on business-to-business commercial practices. In addition, the application of rules on unfair commercial practices can bring into jeopardy the attainment of the objectives of competition law, i.e. to guarantee effective competition. Contradictions between the competition rules and the rules on unfair commercial practices can notably derive from Article 3 of Regulation 1/2003 implementing Articles 101 and 102 of the TFEU. That provision allows for derogation from the general rule that the application of competition law may not lead to the prohibition of restrictive practices which are not prohibited under Article 101 TFEU, namely in the case of application of provisions of national law that predominantly pursue an objective different from that pursued by Articles 101 or 102 of the Treaty, in practice : the law on unfair competition. A better integration of these three branches of the law might have the benefit of avoiding the contradictions that exist today. In this paper it is i.a. proposed that the law on unfair commercial practices would recognise the guarantee of effective competition as one of its objectives (as it is already the case in the German law on unfair competition) and that competition law does not authorise in an unlimited way, as it is now the case under Article 3 of Regulation 1/2003, Member States to prohibit restrictive practices on the basis of legislation with another aim.