(ii)
the trader indicates in a commercial practice that he is bound by the code.
Consumers organizations should have the possibility to file claims against the company or group of companies that are in violation of the provisions of the directive, i.e., that resort to unfair commercial practices. Article 11(1) of the Directive provides in this regard that the EU member States should adopt “legal provisions under which persons or organizations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may: (a) take legal action against such unfair commercial practices; and/or (b) bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings;” and Article 4 of Directive 84/450/EEC includes a similar provision.167 Enforcement of the requirements established under the Unfair Commercial Practices Directive or under the 1984 Directive concerning misleading and comparative advertising is decentralized: it is the consumers themselves, through their representative organizations, who may seek to ensure that codes of conduct are not abused. Although the “owners” of the code of conduct, who have the direct responsibility of enforcing it and ensure it is complied with,168 may be encouraged to control unfair commercial practices and to establish bodies allowing for complaints to be filed, this is only to be favored “if proceedings before such bodies are in addition to the court or administrative proceedings,” and “recourse to such control bodies shall never be deemed the equivalent of foregoing a means of judicial or administrative recourse,” as required by the Directive.169 There is some experience with this regulatory framework that demonstrates its usefulness as a tool to enforce due diligence undertakings by a company. In Germany, the EU Directive on Unfair Commercial Practices (2005/29/EC) has been implemented by the Unfair Commercial Practices Law (Gesetz gegen den unlauteren Wettbewerb, UWG). The law provides for remedies when a company advertises that it adheres to Corporate Social Responsibility (CSR) policies, but in fact does not. 170 For instance, one retailer advertised such participation in a CSR scheme on their website under “social responsibility” and in a brochure available in shops, as well as in replies to consumers' requests.171 They were sued by the Hamburg Consumer’s agency (Hamburger Verbraucherzentrale, VZ HH)172 for false advertisement. The VZ HH was able to prove that there are at least three factories in Bangladesh, which supplied the company with textiles where the standards of the code of conduct were clearly not respected. While the code of conduct is not legally binding in a strict sense, the code of conduct states that the adhering company is responsible to ensure the respect of fundamental workers’ right all along the supply chain. The lawsuit was based on the argument that the company was misleading consumers to believe that the code was is in fact binding and that the standards outlined in the code of conduct were complied with, which in reality it had not done. The plaintiffs alleged that such conduct was in contravention of Section 5(1) No. 6 UWG as well as the more general norm Section 3(1) UWG. The company accepted the claim of VZ HH and therefore decided to change its advertisements. No court decision was delivered. In the United Kingdom, the Consumer Protection from Unfair Trading Regulations 2008 make it a criminal offense for a Company to knowingly or recklessly engage in an “unfair 40 REGULATORY OPTIONS FOR STATES