AMENDED PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING DIRECTIVE 84/450/EEC CONCERNING MISLEADING ADVERTISING SO AS TO INCLUDE COMPARATIVE ADVERTISING
COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 13. 13. 1996 COM(96) 700 final - COD 343 OPINION OF THE COMMISSION pursuant to Article 189 b (2) (d) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING DIRECTIVE 84/450/EEC CONCERNING MISLEADING ADVERTISING SO AS TO INCLUDE COMPARATIVE ADVERTISING AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 189 a (2) of the EC Treaty EXPLANATORY MEMORANDUM I THE BACKGROUND On 19 March 1996 the Council of the European Union established a common position with a view to the adoption of a Directive amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising. On 23 October 1996 the European Parliament adopted at its second reading, in the framework of the co-decision procedure, its opinion on the common position (rapporteur: Mrs Oomen-Ruijten). This opinion contains 16 amendments, eight of which were accepted by the Commission at its plenary meeting. Pursuant to Article 189b(2)(d) of the Treaty, the Commission must deliver an opinion to the Council concerning Parliament's amendments. In this particular case the opinion alters the Commission's proposal as provided for in Article 189a(2) of the Treaty. H THE COMMISSION'S POSITION ON THE AMENDMENTS At its plenary meeting the Commission agreed to accept amendments 1, 2, 4, 8, 9, 16, 20 and 21. However the Commission cannot accept amendments 3, 6, 12, 13, 15, 17, 18 and 19, for the following reasons: Amendments 3 and 15 concern comparative tests. At the Edinburgh European Council in 1992, the Commission undertook to revise a series of proposals - including the proposal on comparative advertising - so as to remove certain aspects that were incompatible with the principle of proportionality In the case in point the Commission considered that the provisions on comparative tests (which featured in the initial proposal) could be withdrawn because they were not strictly necessary in order to achieve the proposal's objectives. Amendments 6, 18 and 19 concern voluntary regulatory systems. The creation of a "European self-regulatory umbrella body" (Amendment 19) is unacceptable because of the potential financial implications for the Community budget. The role of the national self-regulatory bodies (Amendments 6 and 18) is already given due recognition in Article 5 of Directive 84/450/EEC and Amendment 18 could lead to distortions not only with regard to comparative advertising but also with regard to misleading advertising (which is also covered by the same~provision). Amendments 12 and 13 have to be rejected because of the excessive and unreasonable burden they would place on advertisers, bearing in mind the other conditions already contained in the text of the common position (Article 3a). Amendment 17 modifies the first paragraph of Article 4 of Directive 84/450/EEC. If accepted, its effect would be to allow Member States to "require prior recourse to other established means of dealing with complaints, including those referred to in Article 5" (self-regulatory procedures). Such an amendment could prevent or at any rate delay consumer access to ordinary justice, and might well be incompatible with Article 6 of the European Convention on Human Rights. m AMENDED PROPOSAL In view of the above, and in compliance with the provisions governing the co-decision procedure, the proposal has been amended by the Commission so as to include Amendments 1, 2, 4, 8, 9, 16, 20 and 21 of the European Parliament. AMENDED PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING DIRECTIVE 84/450/EEC CONCERNING MISLEADING ADVERTISING SO AS TO INCLUDE COMPARATIVE ADVERTISING COMMON POSITION OF THE COUNCIL AMENDED PROPOSAL THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof, Having regard to the Treaty establishing the European Community, in particular Article 100a thereof, and Having regard Commission , to the proposal from the Having regard to the proposal from the Commission, Having regard to the opinion of the Economic and Social Committee , Having regard to the opinion of the Economic and Social Committee , Acting in accordance with the procedure referred to in Article 189b of the Treaty (3), Acting in accordance with the procedure referred to in Article 189b of the Treaty, Unchanged (1) Whereas one of the Community's main aims is to complete the internal market; whereas measures must be adopted to ensure the smooth running of the said market; whereas the market comprises an area which has no internal frontiers and in which goods, persons, services and capital can move freely; (2) Whereas the completion of the internal (2) Whereas the completion of the internal market will mean an ever wider range of market will mean an ever wider range of 1. OJNoC 180, 11. 7. 1991, p. 14. 2. OJ No C 49, 24. 2. 1992, p. 35. A choice; whereas given that consumers can and must make the best possible use of the internal market, and that advertising is a very important means of creating genuine outlets services for all goods and throughout the European Community, the basic provisions governing the form and content of comparative advertising should be uniform and the conditions ofthe use of comparative advertising in the Member States should be harmonised; whereas if these conditions are met this will help demonstrate objectively the merits of the various comparable products; whereas comparative advertising can also stimulate competition between suppliers of goods and services to the consumer's advantage; Unchanged Unchanged form choice; whereas, given that consumers can and must make the best possible use ofthe internal is a very that advertising market, and important means of creating genuine outlets for all goods and services throughout the Community, the basic provisions governing and content of comparative the advertising should be uniform and the conditions of the use of comparative advertising in the Member States should be harmonized; whereas help demonstrate the various the merits of comparable products; whereas comparative advertising can also stimulate competition between suppliers of goods and services to the consumer's advantage; this will or the laws, acceptance concerning non-acceptance to regulations and (3) Whereas administrative provisions of the individual Member States comparative advertising differ widely; whereas advertising reaches beyond the frontiers and is received on the territory of other Member States; whereas of the the comparative advertising according various national laws may constitute an obstacle to the free movement of goods and services and create distortions of competition; whereas, in particular, firms may be exposed to forms of advertising developed by competitors to which they cannot reply in to equal measure; whereas the freedom provide services to comparative relating advertising should be assured; whereas the Community is called on to remedy this situation; (4) Whereas the sixth recital of Council Directive 84/450/EEC of 10 September 1984 relating laws, regulations and administrative provisions of the Member States concerning misleading advertising" states that, after the harmonization the approximation of to 3. OJNoL250, 19. 9. 1984, p. 17. of national provisions against misleading advertising, 'at a second stage. , as far as necessary, comparative advertising should be the basis of appropriate dealt with, on Commission proposals' ; (5) Whereas point 3 (d) of the Annex to the Council resolution of 14 April 1975 on a the European preliminary programme of a consumer for Economic Committee protection and information policy includes the right to information among the basic rights of consumers; whereas this right is confirmed by the Council Resolution of 19 May 1981 on a second programme of the European Economic Community for a consumer protection and information policy , point 40 of the Annex, which deals specifically with consumer information; whereas comparative advertising, when relevant, verifiable and representative features and is not misleading, is a legitimate means of informing consumers of their advantage; it compares and information is confirmed by (5) Whereas point 3(d) ofthe Annex to the Council resolution of 14 April 1975 on a preliminary programme of the European Economic Committee for a consumer policy4 protection includes the right to information among the basic rights of consumers; whereas this the Council right Resolution of 19 May 1981 on a second programme of the European Economic Community for a consumer protection and information policy , point 40 of the Annex, which deals specifically with consumer whereas information; comparative advertising, when it compares essential, verifiable and representative features and is not misleading, may be a legitimate means of informing consumers of their advantage; (6) Whereas it is desirable to provide a broad concept of comparative advertising to cover all modalities of comparative advertising; Unchanged 4. OJ No C 92, 25. 4. 1975, p. 1, 5. OJNoC 133, 3. 6. 1981, p. 1. Unchanged of in order conditions far as should permitted (7) Whereas the comparative advertising, as be concerned, is comparison established to determine which practices relating to comparative advertising may distort competition, cause damage to competitors and have an adverse effect on consumer choice; whereas such conditions of permitted advertising should include criteria of objective comparison of the features of goods and services; (8) Whereas the comparison of the price only of goods and services should be possible if this comparison respects certain conditions, in particular that it shall not be misleading; Unchanged (9) Whereas, in order to prevent comparative advertising being used in an anti-competitive and unfair manner, only comparisons between competing goods and services meeting the same needs or intended for the same purpose should be permitted; Unchanged Deleted Unchanged cumulative should be (10) Whereas the conditions of comparative advertising and respected in their entirety; whereas this shall not prevent Member States from defining modalities of implementation for each of the conditions, in order to find the appropriate solution in each case; (11) Whereas these conditions should include, in particular, consideration of the provisions resulting from Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin and in particular Article 13 foodstuffs , arid thereof, and of the other Community provisions adopted in the agricultural sphere; agricultural products for (12) Whereas Article 5 of First Council Unchanged 6. OJNoL208, 24. 7. 1992, p. 1. Directive 89/104 of 21 December 1988 to approximate the laws of the Member States relating to trade marks confers exclusive rights on the proprietor of a registered trade mark, including the right to prevent all third parties from using, in the course of trade, any sign which is identical with, or similar to, the trade mark in relation to identical goods or services or even, where appropriate, other goods; however, (13) Whereas be it may, indispensable, in order to make comparative advertising effective, to identify the goods or services of a competitor, making reference to a trade mark or trade name of which the latter is the proprietor; (14) Whereas such use of another's trade mark, trade name or other distinguishing marks does not breach this exclusive right in cases where it complies with the conditions laid down by this Directive, the intended target being solely to distinguish between them and thus to highlight differences objectively; (15) Whereas provisions should be made for the legal and/or administrative means of redress • mentioned in Articles 4 and 5 of Directive 84/450/EEC to be available to control comparative advertising which fails to this meet Directive; whereas Article 6 applies to unpermitted comparative advertising in the same way; laid down by the conditions Unchanged Unchanged Unchanged (16) Whereas Article 7 of Directive 84/450/EEC allowing Member States to retain or adopt provisions with a view to ensuring more extensive protection for consumers, persons carrying on a trade, business, craft or Unchanged 1. OJ No L40, 11. 2. 1989, p. 1. Directive last amended by Decision 92/10/EEC ( O J N 0 L 6, 11. 1. 1992, p. 35. ) profession, and the general public, should not apply to comparative advertising, given that the objective of amending the said Directive is to under which conditions comparative advertising is permitted; establish (17) Whereas a comparison which presents goods or services as an imitation or a replica of goods or services bearing a registered trade mark shall not be considered to fulfil the conditions to be met by permitted comparative advertising; (18) Whereas this Directive in no way affects Community provisions on advertising for specific products and/or services or restrictions or prohibitions on advertising in particular media; if a Member State, in (19) Whereas compliance with the provisions of the Treaty, prohibits advertising regarding certain goods or services, this ban may, whether it is imposed directly or by a body or organization responsible under the law of that Member State the exercise of a commercial, industrial, craft or professional activity, comparative advertising; regulating extended for be to (20) Whereas Member States shall not be obliged to permit comparative advertising for goods or services on which they maintain or introduce bans, including bans as regards marketing methods or advertising which targets vulnerable consumer groups; regulating (21) Whereas comparative advertising is, under the conditions set out in this Directive, necessary for the smooth running of the internal market and~*whereas is required; action at Community level Unchanged Unchanged Unchanged (20) Whereas Member States shall not be obliged to permit advertising for goods or services on which they maintain or introduce bans which comply with the provisions of the Treaty, including bans as regards marketing methods or advertising which target vulnerable consumer groups and bans based on the codes of ethics laid down by some professions in the exercise of the self-regulating powers granted under the general legal system; Unchanged whereas the adoption of a Directive is the ' appropriate instrument because it lays down uniform general principles while allowing the Member States to choose the form and appropriate method by which to attain these objectives; whereas it is in accordance with the principle of subsidiarity. HAVE ADOPTED THIS DIRECTIVE: Article 1 Directive 84/450/EEC is hereby amended as Unchanged follows: 1. the title shall be replaced by the following: Unchanged 'Council Directive of 10 September 1984 Unchanged concerning misleading and advertising" ; comparative 2. Article 1 shall be replaced by the following: Unchanged Unchanged 'Article 1 The purpose of this Directive is to protect consumers, persons carrying on a trade or business or practising a craft or profession and - the interests of the public in general against the unfair misleading consequences thereof and to lay down the conditions comparative under which advertising is permitted/; advertising and 3. the following point shall be inserted in Unchanged Article 2: '2 (a): "comparative advertising" means any Unchanged. advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor;' ; 4. the following Article shall be added: Unchanged 'Article 3 a 1. Comparative advertising shall, as far as the Unchanged comparison is concerned, be permitted when the following conditions are met: (a) it is not misleading according to Articles 2 (2), 3 and 7(1); Unchanged (b) it compares goods or services meeting the same needs or intended for the same purpose; Unchanged (c) it objectively compares one or more material, relevant verifiable and representative features of those goods and services, which may include price; (c) it objectively compares one or more essentia^ verifiable and representative features of those goods and services, which may include price; (d) it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor; Unchanged (e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services or activities of a competitor; (e) it does not discredit or denigrate the trade marks, trade names, other goods, distinguishing marks, services or activities, personal qualities or circumstances of a competitor; (f) for products with designation of origin, it - Unchanged relates in each case to products with the same designation; « (g) it does not take unfair advantage of the Unchanged reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products. (h) in the case of professional services, it does not conflict with codes of conduct which comply with the provisions of the Treaty and have been laid down in the exercise of the self-regulating powers granted under the general legal system. 2. Any comparison referring to a special offer shall indicate in a clear and unequivocal way Unchanged the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date ofthe start ofthe period during which the special price or other specific conditions shall apply/; 5. the first and second subparagraphs of Unchanged Article 4 (1) shall be replaced by following: the '1. Member States shall ensure that adequate Unchanged and effective means exist for the control of misleading advertising and for the compliance with the provisions on comparative advertising in the interests of consumers as well as competitors and the general public. Such means shall include legal provisions Unchanged under which persons or organizations regarded under national law as having a legitimate interest in prohibiting misleading advertising or regulating comparative advertising may: (a) take legal action against such advertising; and/or Unchanged such advertising before (b) bring administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings/; an • Unchanged 6. Article 4 (2) is hereby amended as follows: Unchanged (a) the indents in the first subparagraph shall Unchanged be replaced by the following: '- to order the cessation of, or to institute Unchanged appropriate legal proceedings for an order for the cessation of, misleading or unpermitted comparative advertising, or - if the misleading or unpermitted comparative Unchanged advertising has not yet been published but publication the imminent, prohibition of, or to institute appropriate legal to order is proceedings for an order for the prohibition of, such publication/ ; (b) the introductory wording to the third subparagraph the following: replaced by shall be 'Furthermore, Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the or continuing of misleading unpermitted comparative advertising, the cessation of which has been ordered by a final decision/; effects Unchanged Unchanged 7. Article 5 shall be replaced by the following: Unchanged 'Article 5 This Directive does not exclude the voluntary Unchanged comparative control of misleading or advertising by self-regulatory bodies and recourse to such bodies by the persons or in Article 4 if organizations referred proceedings before such bodies are in addition to the court or administrative proceedings referred to in that Article/ ; to 8. Article 7 shall be replaced by the following: • Unchanged 'Article 7 1. This Directive shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection, with to misleading advertising, for consumers, persons carrying on a trade, business, craft or profession, and the general public. regard Unchanged 2. Paragraph 1 shall not apply to comparative advertising as far as is concerned. the comparison Unchanged 3. The provisions of this Directive shall apply without prejudice to Community provisions on specific products and/or advertising for Unchanged 10 Unchanged services or to restrictions or prohibitions on advertising in particular media. 4. The provisions of this Directive conceming comparative advertising shall not oblige Member States which, in compliance with the provisions ofthe Treaty, maintain or introduce advertising bans regarding certain goods or services, whether imposed directly or by a body or organization responsible, under the law of the Member States, for regulating the exercise of a commercial, industrial, craft or professional activity, to permit comparative advertising regarding those goods or services. Where these bans are limited to particular media, the Directive shall apply to the media not covered by these bans/. Article 2 Unchanged 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest 30 months after its publication in the Official European Communities. They shall forthwith inform the Commission thereof. Journal the of 2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. Unchanged 3. Member States shall communicate to the Commission the text ofthe main provisions of domestic law which they adopt in the field governed by this Directive. Unchanged 11 Article 3 This Directive is addressed to the Member Unchanged States. Done at. For the Council The President 12 ISSN 0254-1475 COM(96) 700 final DOCUMENTS EN 10 08 16 Catalogue number : CB-CO-96-708-EN-C ISBN 92-78-13793-6 Office for Official Publications ofthe European Communities L-2985 Luxembourg /\b