1984L0450 — EN — 12.11.1997 — 001.001 — 1
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►B ►M1 COUNCIL DIRECTIVE
of 10 September 1984
concerning misleading and comparative advertising ◄
(OJ L 250, 19.9.1984, p. 17)
Amended by:
Official Journal
No page date
►M1Directive 97/55/EC of European Parliament and of the Council of 6
October1997 L 290 18 23.10.1997
Corrected by:
►C1Corrigendum, OJ L 194, 10.7.1998, p. 54 (97/55)
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COUNCIL DIRECTIVE
of 10 September 1984
concerning misleading and comparative advertising
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THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas the laws against misleading advertising now in force in the
Member States differ widely; whereas, since advertising reaches beyondthe frontiers of individual Member States, it has a direct effect on theestablishment and the functioning of the common market;
Whereas misleading advertising can lead to distortion of competition
within the common market;
Whereas advertising, whether or not it induces a contract, affects the
economic welfare of consumers;
Whereas misleading advertising may cause a consumer to take decisions
prejudicial to him when acquiring goods or other property, or usingservices, and the differences between the laws of the Member States notonly lead, in many cases, to inadequate levels of consumerpr otection,but also hinderthe execution of adver tising campaigns beyond nationalboundaries and thus affect the free circulation of goods and provision ofservices;
Whereas the second programme of the European Economic Community
fora consumerpr otection and infor mation policy (
4) provides for appro-
priate action for the protection of consumers against misleading andunfairadver tising;
Whereas it is in the interest of the public in general, as well as that of
consumers and all those who, in competition with one another, carry ona trade, business, craft or profession, in the common market, to harmo-nize in the first instance national provisions against misleading advert-ising and that, at a second stage, unfairadver tising and, as farasnecessary, comparative advertising should be dealt with, on the basis ofappropriate Commission proposals;
Whereas minimum and objective criteria for determining whether
advertising is misleading should be established for this purpose;
Whereas the laws to be adopted by Member States against misleading
advertising must be adequate and effective;
Whereas persons or organizations regarded under national law as having
a legitimate interest in the matter must have facilities for initiatingproceedings against misleading advertising, either before a court orbefore an administrative authority which is competent to decide uponcomplaints or to initiate appropriate legal proceedings;
Wher eas it should be foreach MemberState to decide whetherto
enable the courts or administrative authorities to require prior recourseto otherestablished means of dealing with the complaint;
(1) OJ No C 70, 21. 3. 1978, p. 4.
(2) OJ No C 140, 5. 6. 1979, p. 23.
(3) OJ No C 171, 9. 7. 1979, p. 43.
(4) OJ No C 133, 3. 6. 1981, p. 1.
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Whereas the courts or administrative authorities must have powers
enabling them to order or obtain the cessation of misleading advertising;
Whereas in certain cases it may be desirable to prohibit misleading
advertising even before it is published; whereas, however, this in noway implies that Member States are under an obligation to introducerules requiring the systematic prior vetting of advertising;
Whereas provision should be made for accelerated procedures under
which measures with interim or definitive effect can be taken;
Whereas it may be desirable to order the publication of decisions made
by courts or administrative authorities or of corrective statements inorder to eliminate any continuing effects of misleading advertising;
Whereas administrative authorities must be impartial and the exercise of
their powers must be subject to judicial review;
Whereas the voluntary control exercised by self-regulatory bodies to
eliminate misleading advertising may avoid recourse to administrativeor judicial action and ought therefore to be encouraged;
Whereas the advertiser should be able to prove, by appropriate means,
the material accuracy of the factual claims he makes in his advertising,and may in appropriate cases be required to do so by the court oradministrative authority;
Whereas this Directive must not preclude Member States from retaining
or adopting provisions with a view to ensuring more extensive protec-tion of consumers, persons carrying on a trade, business, craft or profes-sion, and the general public,
HAS ADOPTED THIS DIRECTIVE:
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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 theinterests of the public in general against misleading advertising and theunfairconsequences ther eof and to lay down the conditions underwhichcomparative advertising is permitted.
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Article 2
For the purposes of this Directive:
1. ‘advertising' means the making of a representation in any form in
connection with a trade, business, craft or profession in order topromote the supply of goods or services, including immovableproperty, rights and obligations;
2. ‘misleading advertising' means any advertising which in any way,
including its presentation, deceives or is likely to deceive thepersons to whom it is addressed or whom it reaches and which, byreason of its deceptive nature, is likely to affect their economicbehaviourorwhich, forthose r easons, injur es oris likely to injur e acompetitor;
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2a. ‘comparative advertising' means any advertising which explicitly or
by implication identifies a competitororgoods orser vices offer edby a competitor;
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3. ‘person' means any natural or legal person.
Article 3
In determining whether advertising is misleading, account shall be taken
of all its features, and in particular of any information it containsconcerning:
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(a) the characteristics of goods or services, such as their availability,
nature, execution, composition, method and date of manufacture orprovision, fitness for purpose, uses, quantity, specification,geographical or commercial origin or the results to be expectedfrom their use, or the results and material features of tests or checkscarried out on the goods or services;
(b) the pr ice orthe mannerin which the pr ice is calculated, and the
conditions on which the goods are supplied or the servicesprovided;
(c) the nature, attributes and rights of the advertiser, such as his identity
and assets, his qualifications and ownership of industrial, commer-cial or intellectual property rights or his awards and distinctions.
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Article 3a
1. Comparative advertising shall, as far as the 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);
(b) it compares goods or services meeting the same needs or intended
forthe same pur pose;
(c) it objectively compares one or more material, relevant, verifiable
and representative features of those goods and services, which mayinclude price;
(d) it does not create confusion in the market place beween the adver-
tiser and a competitor or between the advertiser’s trade marks, tradenames, otherdistinguishing mar ks, goods orser vices and those of acompetitor;
(e) it does not discredit or denigrate the trade marks, trade names, other
distinguishing marks, goods, services, activities, or circumstances ofa competitor;
(f) for products with designation of origin, it relates in each case to
products with the same designation;
(g) it does not take unfair advantage of the reputation of a trade mark,
tr ade name orotherdistinguishing mar ks of a competitororof thedesignation of origin of competing products;
(h) it does not present goods or services as imitations or replicas of
goods or services bearing a protected trade mark or trade name.
2. Any comparison referring to a special offer shall indicate in a
clearand unequivocal way the date on which the offerends or , wher eappropriate, that the special offer is subject to the availability of thegoods and services, and, where the special offer has not yet begun, thedate of the start of the period during which the special price or otherspecific conditions shall apply.
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Article 4
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1. MemberStates shall ensur e that adequate and effective meansexist to combat misleading advertising and for the compliance with theprovisions on comparative advertising in the interests of consumers aswell as competitors and the general public.
Such means shall include legal provisions under which persons or
organizations regarded under national law as having a legitimate interestin prohibiting misleading advertising or regulating comparative advert-ising may:
(a) take legal action against such advertising; and/or
(b) bring such advertising before an administrative authority competent
either to decide on complaints or to initiate appropriate legalproceedings.
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It shall be foreach MemberState to decide which of these facilitiesshall be available and whether to enable the courts or administrativeauthorities to require prior recourse to other established means ofdealing with complaints, including those referred to in Article 5.
2. Under the legal provisions referred to in paragraph 1, Member
States shall confer upon the courts or administrative authorities powersenabling them, in cases where they deem such measures to be necessarytaking into account all the interests involved and in particular the publicinterest:
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— to order the cessation of, or to institute appropriate legal proceedings
foran or derforthe cessation of, misleading adver tising orunper -mitted comparative advertising, or
— if the misleading advertising or unpermitted comparative advertising
has not yet been published but publication is imminent, to order theprohibition of, or to institute appropriate legal proceedings for anorder for the prohibition of, such publication,
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even without pr oof of actual loss ordamage orof intention ornegli-
gence on the part of the advertiser.
Member States shall also make provision for the measures referred to in
the first subparagraph to be taken under an accelerated procedure:
— eitherwith inter im effect, or
— with definitive effect,
on the under standing that it is foreach MemberState to decide which of
the two options to select.
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Furthermore, Member States may confer upon the courts or adminis-
trative authorities powers enabling them, with a view to eliminating thecontinuing effects of misleading advertising or unpermitted comparativeadvertising, the cessation of which has been ordered by a final decision:
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— to require publication of that decision in full or in part and in such
form as they deem adequate,
— to require in addition the publication of a corrective statement.
3. The administrative authorities referred to in paragraph 1 must:
(a) be composed so as not to cast doubt on theirimpar tiality;
(b) have adequate powers, where they decide on complaints, to monitor
and enforce the observance of their decisions effectively;
(c) normally give reasons for their decisions.
Where the powers referred to in paragraph 2 are exercised exclusively
by an administrative authority, reasons for its decisions shall always begiven. Furthermore in this case, provision must be made for procedureswhereby improper or unreasonable exercise of its powers by theadministrative authority or improper or unreasonable failure to exercisethe said powers can be the subject of judicial review.
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Article 5
This Directive does not exclude the voluntary control, which Member
States may encourage, of misleading or comparative advertising byself-regulatory bodies and recourse to such bodies by the persons ororganisations referred to in Article 4 if proceedings before such bodiesare in addition to the court or administrative proceedings referred to inthat Article.
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Article 6
Member States shall confer upon the courts or administrative authorities
powers enabling them in the civil or administrative proceedingsprovided for in Article 4:
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(a) to require the advertiser to furnish evidence as to the accuracy of
factual claims in advertising if, taking into account the legitimateinterest of the advertiser and any other party to the proceedings,such a requirement appears appropriate on the basis of the circum-stances of the particular case and in the case of comparative advert-ising to require the advertiser to furnish such evidence in a shortperiod of time; and
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(b) to considerfactual claims as inaccur ate if the evidence demanded in
accordance with (a) is not furnished or is deemed insufficient by thecourt or administrative authority.
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Article 7
1. This Directive shall not preclude Member States from retaining or
adopting provisions with a view to ensuring more extensive protection,with regard to misleading advertising, for consumers, persons carryingon a trade, business, craft or profession, and the general public.
2. Paragraph 1 shall not apply to comparative advertising as far as
the comparison is concerned.
3. The provisions of this Directive shall apply without prejudice to
Community provisions on advertising for specific products and/orservices or to restrictions or prohibitions on advertising in particularmedia.
4. The provisions of this Directive concerning comparative advert-
ising shall not oblige MemberStates which, in compliance with theprovisions of the Treaty, maintain or introduce advertising bansregarding certain goods or services, whether imposed directly or by abody or organization responsible, under the law of the Member States,for regulating the exercise of a commercial, industrial, craft or profes-sional activity, to permit comparative advertising regarding those goodsor services. Where these bans are limited to particular media, theDirective shall apply to the media not covered by these bans.
5. Nothing in this Directive shall prevent Member States from, in
compliance with the provisions of the Treaty, maintaining or intro-ducing bans or limitations on the use of comparisons in the advertisingof professional services, whether imposed directly or by a body ororganization responsible, under the law of the Member States, forregulating the exercise of a professional activity.
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Article 8
Member States shall bring into force the measures necessary to comply
with this Directive by 1 October 1986 at the latest. They shall forthwithinform the Commission thereof.
MemberStates shall communicate to the Commission the text of all
provisions of national law which they adopt in the field covered by thisDirective.
Article 9
This Directive is addressed to the Member States.