A GENERAL CLASSIFICATION - FOUNDATIONS OF ACTION FOR INJUNCTION

CHAPTER I FOUNDATIONS OF ACTION FOR INJUNCTION

1. A GENERAL CLASSIFICATION

Injunctions are enforcement tools used in consumer protection in all cases in which unlawful activity or unlawful behaviour shall be swiftly brought to an end. Injunctions arise as the most suitable tools applicable in cases that require quick and definitive action ceasing unlawful activity and preventing repetition of the same unlawful activity in the future. The action for injunction is a valuable tool for consumer enforcement in view of the fact that consumers all over Europe are constantly bombarded by different advertisements, unique bargaining offers and other unlawful practices. All those practices may infringe consumer rights individually as well as collectively as a group. Evidently, the remedy of injunction perfectly fits cases in which a consumer is asked to pay for “free” products, which in fact have been offered not ordered, or if an advertisement provides false commercial information which induces a consumer to buy. These are the most common situations in which a fast and effective remedy is required.

The action for injunction in the framework of the Injunction Directive constitutes an appropriate reaction to these situations. It can be developed as a tool which either modifies an individual’s behaviour by cessation or/and brings a practice to an end; and this is an enforcement tool which can be addressed by consumers as a group. The use of injunctions is, however, dedicated to specific fields of law: it is related to substance. That is why the choice of injunction as a remedy depends on the nature of the infringement in terms of substantive law - whether unfair contract terms or unfair commercial practices or other fields of consumer law.⁶

1. 1. A Working Definition

The semantic range of wording used to describe an action for an injunction oscillates between a stop order and a modification order. The EU Directives do not provide for a precise

6 Haley (2006), Stop Now – Injunction: Protecting the Interests of European Consumers, Conference on Effective Legal Redress – The Consumer Protection Instruments of Actions for Injunctions and Group Damages Actions in Vienna; Stuyck/Terryn/Colaert/Van Dyck/Peretz/Hoekx/Tereszkiewicz (2007), An Analysis and Evaluation of Alternative Means of Consumer Redress other than Redress through Ordinary Judicial Proceedings, prepared by the Study Centre for Consumer Law – Centre for European Economic Law Katholieke

Universiteit Leuven, Belgium, p. 330-354,

<http://www.eurofinas.org/uploads/documents/policies/OTHER%20POLICY%20ISSUES/comparative_report_e n.pdf>accessed on April 22, 2014.

22 and one-sided definition of the remedy of injunction defined either as cease or desist order, which at both ends provides for the modification of a person’s behaviour. This has left leeway to Member States to provide their own particular definition of injunctions.⁷ They developed various wording schemes for injunctions. This is partly an effect of language differences as well as of translation issues. A more complex analysis of the most commonly used notions of injunctions will show the extent to which national definitions differ and how many elements they have in common.⁸

A starting point for clarifying the meaning of an injunction is the distinction between prohibition and inhibition: I adopt a working definition of injunction based on its dictionary definition as a proxy/common standard to compare how the injunction is understood in various legal systems (1) a prohibition refers to “a certain behaviour, which is forbidden or not allowed by the rules of law”⁹, (2) an inhibition refers to “an order preventing someone from doing or repeating a certain activity”.¹⁰

1. 2. Bilateral Timing

An injunction is a civil law remedy which may be addressed to situations occurring at two different moments (i) at the moment in which unlawful activity occurs - this is a present accent of injunctions, and (ii) in the future - this is a future accent of injunctions. The latter variant makes the remedy of injunction special and unique among existing civil law remedies, because normally remedies are brought for past infringement, not in anticipation of future events. The following illustration illustrates the differences relative to the two timelines: past-present-future (Graph 1).

7 Craig/De Búrca (2011), The Legal Effect of Directives, EU Law: Text, Cases and Materials, 5th ed., OUP, 2011, p. 279-280. The authors state as follows: “(…) A directive may leave some discretion to the Member States, it will always require further implementing measures; and if it sets out its aim only in general terms, it may not be sufficiently precise to allow for proper national judicial enforcement”.

8 See Chapter I 1.5.

9 Cambridge Dictionary, <http://dictionary.cambridge.org/dictionary/british/prohibition_1?q=prohibition+>

accessed on April 22, 2014.

10 Cambridge Dictionary, <http://dictionary.cambridge.org/dictionary/british/inhibition_1?q=inhibition>

accessed on April 22, 2014.

23 action for damages action for injunctions Past Present Future

Graph Nr 1 – Time-frame of Action for Injunction

1. 3. Bilateral Content

Regarding its content, the remedy of injunction is understood as a prohibitory order aimed at banning a certain activity that infringes consumer rights. The unlawful activity has already occurred and the effects continue to influence the future. Here the injunction combines the future element of prevention, and the present element of prohibition. Exactly this combination of present and future elements, linked to a particular subject matter, makes the remedy of injunction special among other civil law remedies. Injunction, in the language of judicial review¹¹, is an order granted by a court whereby someone is required to act or refrain from doing a specified act.

The order for injunction aims at slowing down or restraining a certain activity, for example, it should stop the unlawful activity or modify certain behaviour once the injunctive order is issued. Therefore, the injunction either reverts to previous behaviour or indicates the moment in which the actors are supposed to stop the unlawful activity. It also prevents someone from doing something and repeating a certain unlawful activity in the future. The latter accent discloses the close link of injunctions with the future¹², even if normally remedies should only look to the past.¹³ By their very specific nature, injunctions arise as atypical legal remedies in the field of consumer law - until 1998 not even recognised at the EU level and only recognised to a limited extent at the national level. This is the reason why

11 Judgment of Court of Palermo of 2 June 1998, Adiconsum v Soc. Aeroviaggi, 2077/1998.

12 Prohibition and inhibition as defined in Cambridge Dictionary,

<http://dictionary.cambridge.org/dictionary/british/ban> accessed on June 5, 2014.

13 Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests (OJ L 166, 11.06.1998, p. 51-55) has been substantially ivied several time because new directives on consumer protection have been added to the Annex to the Injunction Directive. For reasons of clarity and rationality, the Injunction Directive has been codified in the form of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110, 01.05.2009, p. 30–36).

24 the remedy of injunction in the field of consumer protection has a rather narrow history.¹⁴ Nevertheless, since the Injunctions Directive of 1998, the process of Europeanization commenced and led to the development of the remedy of injunction in consumer law in all the Member States. It is submitted here that the process of Europeanization of the remedy of injunction is often bound with distortions in the national legal orders of the Member States.

1. 4. Semantic Scope of Notions

The distinction between prohibition and inhibition, although theoretically seemingly clear, leads in reality to many practical problems. “Prohibition” and “inhibition” belong to the same semantic family. They are often used interchangeably. However, this is not the correct way to read the wording of the Injunction Directive in the legal context of its remedial nature.

The proximity means that the two concepts are subject to mutual linguistic penetration and interlinks. Indeed, it is a source of “legal irritation”¹⁵ which has led to an opaque picture in terms of the action for an injunction in Europe. The Graphs below illustrate the mutual connections of the wording used in definitions of injunction operating across Europe.

Graph Nr 2 - a language family for the word “prohibition” (according to Visual Thesaurus Cambridge Dictionary Online)

14 Although the remedy of injunction in the field of consumer protection has been introduced in 1998, before the time the Injunction Directive issued,“(…) a notion of injunction has existed in all the Member States”, Vide: The Proposal for the Injunction Directive, page 5 section: The problem, para. 2. It does not mean, however, that all the Member States had a regime comparable to these brought by the Injunction Directive; Schulte-Nölke/Twigg- Flesner/Ebers (2007), The Consumer Acquis and its Transposition in the Member States, EC Consumer Law Compendium, p. 386.

15 Teubner (1998), Legal Irritants: Good Faith in British Law or How Unifying Law Ends in New Divergences, The Modern Law Review, Vol. 61(1).

Graph Nr 3 - a language family word for the “inhibition” (according to Visual Thesaurus Cambridge Dictionary Online)

Graph Nr 4 - a language family for the word “ban” (according to Visual Thesaurus Cambridge Dictionary Online)

26 1. 5. Inhibitory vs. Prohibitory

There are two general injunctive models on which the scheme of the Injunction Directive rests: (1) an inhibitory injunction¹⁶, which is an injunction that forbids certain legal activity at the time the injunction order is granted¹⁷, the wrongful act is going to be brought to the end, it brings certain limits to wrongful behaviour¹⁸, referring to the legal text of the Injunction Directive defines it as a “cessation order”, in a more general sense it may be called “stop order”¹⁹; (2) a prohibitory injunction²⁰, which prohibits repetition of the wrongful activity in the future²¹, once it has been ceased once the injunction ordered issued²² the legal text of the Injunction Directive defines it as a “prohibitory order”, or in a more general sense it may be called “a ban”.

On the basis of a survey of the case law, it is easily visible that more attention and more focus is given to inhibitory than prohibitory injunctions²³ which often is recognized as a conjunction of the two elements.²⁴ Seemingly, the national definitions of injunctions focus more on the stop-order nature of the remedy of injunction than its cessation element. Courts normally stopped a practice, and upon Article 2(1)(b) of the Injunction Directive posed requirements upon which the effects of the infringements could be eliminated. Therefore, a judgment in the form of a stop order only applies to a present action. In the case of administrative bodies, both the cessation and prohibition of injunctions can be exercised since

16 Fiss (1978), The Civil Right Injunction, London, p. 23.

17 Judgment of the Polish Supreme Court of 26 January 2006, Case V CSK 83/2005.

18 Frignani (1974), L’Injunction nella Common Law e L’Inibitoria nell Diritto Italiano, Publicazioni della Facoltà Giuridica dell’Università di Ferrara, Serie Seconda, p. 61; refers to injunction “(…) che ha presupposti e limiti ben precisi ed il cui campo di applicazione è abbastanza ristretto”.

19 The Injunction Directive is defined in the following manner in various linguistic versions of the Injunction Directive: in the English version of the Injunction Directive it is defined as “(…) the cessation or prohibition of any infringement”, in the French version “(…) à faire cesser ou interdire toute infraction (…)”, in Polish “(…) zaprzestania lub zakazu jakiejkolwiek szkodliwej praktyki (…)”. It may also be defined as a modification order since in fact the cessation influences an individual’s future behaviour.

20 Bean (1984), Injunctions, 3rd ed., London, p. 18-27; Judgment of the Polish Supreme Court of 2 November 2007, Case nr II CSK 289/2007 in comparison with the following judgments: I CK 358/2002, IV CKN 329/2001, I CKN 1319/2000.

21 Frignani (1974), L’Injunction nella…, p. 61; refers to injunction “(…) la quale il giudice invece di ordinare al.

Convegnuto di fare qualcosa, gli pribisce di tenere o di continuare a tenere un comportamento “omissivo””.

22 Rose (1992), Pre-emptive Remedies in Europe, Longman Law, Tax and Finance, p. 215; Fiss (1978), The Civil..., p. 6.

23 Judgment of the Court of First Instance in Barcelona of 17 October 2003, Asociación de Usuarios de Servicios Bancarios” (Ausbanc Consumo) v Caixa d’Estalvis de Catalunya, ECR I-4785.

24 See the following cases: Poland - Judgment of the Polish Court of Competition and Consumer Protection of 1 January 2005, Case XVII Ama 93/2005; Judgment of the Court of Appeal in Warsaw of 20 December 2007, Case I ACa 905/2007; Italy - Judgment of the Supreme Court of Cassation of 11 July 1990, 650/1991; Judgment of the Supreme Court of Cassation of 27 April 1990, Pieri Franco v l'Ente Ferrovie dello Stato, 27/1991;

Judgment of Court of Milan of 9 February 1976, 808/1976; Judgment of Court of Florence of 23 January 1996;

Judgment of Court of Naples of 8 November 1996, 193/1997.

27 an administrative decision may tackle not only present issues, but also its future effectiveness.

Once the abusive practice is stopped, the wrongful practice ceases. In order to eliminate the potential effect of infringements, the Injunction Directive gives also the authorized entity a right to describe the means to be used in order to exclude the practice and its negative effects.

This right can be understood as a means to modify the parties’ behaviour.²⁵ Indeed, the literal interpretation of Article 2(1)(b) of the Injunction Directive has introduced a “modification order”. The modification order does not exclude the practice immediately, but only indicates the manner in which the act contravenes the directive, which allows for cancelling the unlawful practice from the market. As a general rule, courts normally grant inhibitory injunctions which replies to a standard content of a judgment to be issued under national frames of legislation. Given this similarity to a standard judgment, injunctions become easier to enforce and more consumer friendly since they offer a clear cut solution once the injunctive order is made.²⁶

The implementation of the Injunction Directive in the Member States proves that a broad discretion is left to authorities in interpreting the action of injunction as a stop order or a modification order, depending and related to the concrete case at hand. This consequence may yield irritations and ambiguities and could be understood as an example of a disequilibrium in terms of legal remedies. There is an element of choice enshrined in the action of injunction, which discloses the real nature of injunction as an equitable remedy leaving a choice at both angles of prohibition or inhibition, ex lege “cessation” and “prohibition”, or perhaps giving some elements of modification of a wrongful activity. Indeed, the effectiveness of the injunction then depends on the national enforcement framework and the national role of judges and their reading and interpretation of the case at hand. It is submitted, that such a broad leeway should however be avoided in consumer policies since it makes consumer law remedies incoherent.

No matter how the implementation process occurs, the civil law remedies should be defined precisely with regard to their addressees and the potential effects. In reality the injunction procedure provides only for a framework, whilst it remains for the judge or

25 Article 26 of the Polish Act on Competition and Consumer Protection 2007.

26 See the following case: Judgment of the Polish Supreme Court in Warsaw of 22 May 2003, Case nr I CK 628/2003.

28 administrative authority in charge²⁷ to decide on the form and the entire content of injunction remedy.

1. 6. Differences among national Legal Systems

In the Member States injunctions differ significantly. Instead of coherency and unity of enforcement models based on EU law - which was the aim of the Directive on Injunctions as far as its cross-border context was concerned,²⁸ the reality is much better caught by the notion of “united in diversity”.²⁹ Although the scheme of injunction procedure upon the frame of the Injunction Directive should be the same “for the effective and non-discriminatory application of the underlying Community law, the national modes of implementation among Member State vary since each of the Member State follows its own legal culture and tradition”.³⁰ Injunctions at the national level differ regarding the wording used to describe the injunction order as well as the modes of implementation of the injunctions into national legal systems.

1. 6. 1. Wording Differences

The notion of injunctions does not straightforwardly translate from the English version of the Injunctions Directive, which describes, in Article 2, the remedy of injunction as “an order (…) requiring the cessation or prohibition of any infringement”. Member States have implemented the Injunction Directive in a huge variety of versions, models, applying different wordings as well as legal verbiage, which, given national linguistic differences causes divergence in interpretation of the scope and content of injunctions.³¹ In some Member States

27 Cafaggi (2009), The Great Transposition. Administrative and Judicial Enforcement in Consumer Protection:

A Remedial Perspective, Loyola Consumer Law Review, Vol. 21(4), p. 496-539. The UK model of injunction provides a proof of this.

28 See Proposal for a European Parliament and Council Directive on injunctions form the protection of consumers’ interests, Brussels, 24.01.1996, COM(95) 712 final 96/025 (COD), p. 7 (hereafter the Proposal for the Injunction Directive). “In principle, appropriate means of redress should exist in the legal orders of each Member State and, in general, there would seem to be no need for harmonisation”.

29 <http://europa.eu/abc/symbols/motto/indec_en.htm>.

30 Cafaggi/Micklitz (2007), Administrative and Judicial Collective Enforcement of Consumer Law in the US and the European Community, EUI Working Papers Law No. 2007/22, Florence, p. 10.

31 The Injunction Directive, Art. 2:

In Italy, the Injunction Directive was implemented in Article 140 of the Codice del Consumo, in the following manner:

“I soggetti di cui all’art. 139 sono legitimato ad agire a tutela degli interessi collectivi dei consomatori o degli utenti richiedono all Triunale:

a) di inibire gli atti e i comportamenti lesivi degli conosmatori e degli utenti,

29 like Poland, the definition of injunction does not arise from a direct translation of the Injunction Directive. Injunction is understood as a “ban” and its legal meaning reduces the elements of cessation and inhibition to a single word. That is why the Polish model of injunction can hardly be understood as a concept related to the EU Directive. The definition can only be comprehended if one has full knowledge on the Polish law and how it is embedded and linked to the national understanding of injunctions – it does look like a standard judgment, with no specific links to protection as a future related-remedy.³²

The picture becomes even more blurred if one links different legal definitions operating in the various Member States as well as their different normative contexts to the variety of functions that injunctions might perform in the Member States. Taken this myriad of issues into consideration, it is no wonder that the action of injunction is mainly understood as a means of national law and not really related to European law.

1. 6. 2. Transposition Differences

The national differences are rooted in the scheme of the Injunction Directive which itself has been based on the principle of minimum harmonization.³³ Thus, Member States

b) di adottare le misure idonee a correggere o ad eliminare gli effetti donosi delle violazioni accertate,

c) di ordinare la publicazzione del provedimento su uno o piu quotidiani a diffusione nazionale oppure locale nei casi in cu la pubblicita dell provedimento puo contribuire o correggere o eliminare gli effetti della violazioni accerttate”.

In France, the Injunction Directive was implemented in Article L. 421-2 Code de la consommation, in the following manner: “Les associationes mentionees a l’article 421-1 et les organismes justifiant de leur inscription sur la liste liée(?) au Journal officiel des Consommateures europannes en l’application de l’article 4 de la directive 98/27/CE du Parlement Européen et du Council relative aux actions en cessation ou interdire tout

In document The action for injunction in EU consumer law (Page 21-40)