Códigos de Conducta y Competencia Desleal: Aspectos Sustantivos y Procesales (Non-Compliance with Codes of Conduct as an Unfair Competition Practice)

39 Pages Posted: 17 Jun 2011

See all articles by José Massaguer

José Massaguer

Universitat Pompeu Fabra - Department of Law

Date Written: April 1, 2011

Abstract

The amendment of the Spanish Unfair Competition Law in 2009 introduced a new misleading action to the list of actions specifically defined and characterized as unfair competition: non-compliance with commitments contained in codes of conduct, which is now addressed in Section 5.2. This study first describes the background of this particular unfair competition practice, which is found in Directive 2005/29/EC, of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive), and then discusses the material implications of its inclusion among practices considered as misleading actions, according to which the mere infringement of a code of conduct does not constitute unfair competition. The study then elaborates on the definition of behavior that falls under the scope of Section 5.2 in subjective terms (traders and professionals in their relations with both consumers and other market participants) and objective terms (the non-observance of the provisions of a code of conduct that does not merely reiterate or specify the content of legal provisions). Our analysis then addresses the conditions under which non-fulfillment entails an act of unfair competition. These conditions are the indication of being bound by the code of conduct implemented by the trader or professional in a commercial practice in a way which indicates that the assumed commitment is firm and capable of being verified and in such a way that it makes it likely that the addressee takes this into consideration when deciding on a transaction, such that the decision adopted by the addressee would have been different had the addressee not relied on compliance with the code. The analysis concludes with a discussion on the obligation to submit disputes to the dispute resolution bodies established in the infringed code of conduct prior to filing actions based on Section 5.2, analyzing its objective scope, limited to actions of cessation and rectification specifically directed against the non-fulfillment of a code of conduct that constitutes an unfair misleading action (and not asserting acts of unfair competition that infringe rules or specific codes of conduct that merely reiterate or specify statutory provisions), and its subjective scope, which extends to all who intend to institute actions on the basis of Section 5.2, without jeopardizing access to the courts and administrative bodies that address matters of unfair competition.

Note: Downloadable document is in Spanish.

Keywords: Unfair Competition, Codes of Conduct, Self-regulation, Actions for Unfair Competition

Suggested Citation

Massaguer, José, Códigos de Conducta y Competencia Desleal: Aspectos Sustantivos y Procesales (Non-Compliance with Codes of Conduct as an Unfair Competition Practice) (April 1, 2011). InDret, Vol. 2, 2011, Available at SSRN: https://ssrn.com/abstract=1837494

José Massaguer (Contact Author)

Universitat Pompeu Fabra - Department of Law ( email )

Ramon Trias Fargas 25-27
Barcelona, 08005
Spain

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