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In a constitutional state (“Rechtsstaat”), committed to liberal values, the intervention of the legislator in the market forces of free competition requires a specific justification.^1 Economically speaking, this justification rests on the consideration that, without any such intervention, a market failure would ensue after a certain period of time.^2

Before discussing the harmonisation of unfair competition law within the EU we must first ask whether any international provisions exist, and if so what these are. As a rule Community law is subject to international law requirements.^1 Nor should one forget that harmonisation of unfair competition law within Europe can still only constitute the second-best solution. Competition crosses borders not only in Europe but throughout the world, as reflected in the words globalisation and internet, to take but two examples. The aim, and the desirable aim, is therefore beyond doubt a global fair-play standard in competition.

One of the main characteristics of a market economy is the presence of competition between various actors in the market.^1 The question where the line should be drawn between fair competition and unacceptable competitive behaviour has created abundant debate and literature. In the 90s, the World Intellectual Property Organisation (WIPO) undertook a number of activities dealing with the topic of protection against unfair competition. A study on protection against unfair competition reflecting the world situation at that time was presented in 1994.^2 WIPO Model Provisions on Protection Against Unfair Competition were published in 1996.^3 In section 2. which follows, Art. 10 bis of the Paris Convention which anchors the protection against unfair competition in the international legal framework of industrial property rights, will be discussed. An analysis of the 1996 Model Provisions will be conducted in section 3. Section 4., the final section, contains concluding remarks and an outlook.

Unlike Antitrust law, Unfair Competition law is not directly governed in the EC Treaty. The following is intended to show how European primary law nevertheless bears on the unfair commercial practices regulations of Member States.

As was already shown in the presentation of the primary law basis for Unfair Competition law, an extensive case law of the European Court of Justice has evolved since the beginning of the 1980s and is of indirect or direct importance for the national unfair competition legislation in the Member States. The following is intended less to be an attempt of an overall presentation of this case law — which would go beyond the limits available^1 — but instead will emphasise the special features of its development. A list of the ECJ’s leading cases on Unfair Competition law (1.) is followed by an examination of the special features of European judicial practice on Unfair Competition law (2.).

Despite the judicial practice of the ECJ in the field of unfair competition law as presented to us by Prof. Glöckner, this judicial practice is unable to achieve genuine harmonisation. The ECJ can only identify infringements by national regulations (or their interpretation) against the fundamental freedoms of the EC Treaty. Even if this frequently leads indirectly to the contested regulation being adjusted to the standards of other Member States, this is only a de facto effect and cannot achieve a uniform standard of protection, in particular by raising the level of protection. This can only be achieved by means of Community Directives or Regulations.

Directive 2005/29/EC concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market was adopted on May 11, 2005. This contribution sets out the main contents of the Directive in brief, and then analyses the problem of the partial harmonisation of competition law, the extensive list of “per-se prohibitions” in the Annex to the Directive (the “blacklist”) and the Directive’s model consumer. Finally, the question of the implementation obligation (in particular of the “blacklist”) will be discussed.

The historic basis of the law against unfair competition in Belgium is Article 1382 Civil Code (the Code Napoléon) on tort liability. A merchant who violated, on purpose or by negligence, with a competitive aim, a right that a competitor derived from an industrial or commercial organisation committed an act of unfair competition.^1 The law of “concurrence déloyale” was seen as a tool to protect the “business” (“fonds de commerce”) as the sum of the different elements used by a merchant to operate on the market: his trade name and trade marks, the design of his products, his goodwill, his contracts with suppliers and clients, his manufacturing processes and so on. The law against unfair competition was hardly distinct from the law of industrial property that was its inspiration.

As in France, the law against unfair competition in Italy was originally developed by case law within the limits of the general tort clause in the 1865 Civil Code, according to which “ any act by a person that causes harm to another renders the person whose fault has caused the harm liable for damages ”. Unfair competition was regarded as a special actus reus under tort and was sanctioned essentially in the form of liability for damages.

This contribution aims to give a brief introduction into the law against unfair competition of the Scandinavian countries, namely Denmark, Finland, Norway and Sweden.^1 Presenting the Scandinavian approach is highly relevant for a discussion on the future of unfair competition law in Europe for at least two reasons.