Study to support the Fitness Check of EU Consumer law : country report Sweden

1. Study to support the Fitness Check of EU Consumer law -Country report THE NETHERLANDS 1.1.Unfair commercial practices and marketing 1.1.1.Effectiveness of the UCPD in establishing a high level of consumer protectionWhat is the effectiveness of the UCPD (i.e. the national laws transposing it) in terms of:• The overall effectiveness of the principle-based approach under this Directive; Prior to the UCPD, the Netherlands did not have a rich tradition of regulating commercial practices outside private law.This explains why the introduction of the UCPD was not used to completely overhaul the legal landscape of commercial practices.The Netherlands did not have a specific Act on Commercial Practices, nor did it have statutory 'black lists' similar to the Annex to the UCPD.Instead, Dutch law relied on general tort and contract law as a source of private law remedies against unfair commercial practices.• Impose a fine of maximum (as per 1 July 2016) EUR 900 000 per committed offense or 10 percent of annual turnover, 3• Issue a stopping order (an administrative order made by the competent public authority ordering the trader to stop a certain practice, on penalty of a fine),• Issue a compliance order (an administrative order holding a positive mandatory duty to comply, issued either after commission of the offense or, by way of anticipatory remedy, where the offense is imminent), and• May publish its order or a voluntary undertaking by the trader.As far as public law enforcement of the Unfair Commercial Practices Act 2008 is concerned, either the Autoriteit Consument en Markt (Authority Consumer & Markets; ACM) or the Autoriteit Financiële Markten (the Netherlands Authority for the Financial Markets; AFM) is the competent authority.Pursuant to the relevant parts of the Consumer Protection Enforcement Act 2007, the ACM can initiate legal action against unfair practices generally, with the exception of such practices pertaining to 'financial services and activities'.The Act exclusively burdens the AFM with enforcement in the area of such services and activities.Besides the ACM and AFM, there are some minor competent authorities for specific niche areas.Concerning the practical experience with the principle-based approach of the UCPD, there are diverging experiences.For instance, private law practitioners seem to be more at ease with this approach than administrative law practitioners who adhere more strictly to the nulla poena sine lege certa principle.From the viewpoint of this 'lex certa' principle, the principle-based approach of using open-textured concepts of 'misleading' and 'aggressive' practices offers less legal certainty for traders in advance than the specific list of practices deemed unfair per se does.That said, as noted by the ACM and the ECC (Europees Consumenten Centrum, in charge of facilitating crossborder requests), the open textured approach of the UCPD nevertheless offers leeway to competent authorities to develop their enforcement strategy.Moreover, some report that this flexibility also offers room to traders to innovate.Consumer organisations, however, feel that the principle-based approach does not prevent certain sharp practices that border on unfairness but fall just outside the scope of what constitutes an UCP.