1998L0027 — EN — 17.07.2000 — 002.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B 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, 11.6.1998, p. 51)
Amended by:
Official Journal
No page date
►M1 Directive 1999/44/EC of the European Parliament and of the Council of
25 May 1999 L 171 12 7.7.1999
►M2 Directive 2000/31/EC of the European Parliament and of the Council of 8
June 2000 L 178 1 17.7.2000
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DIRECTIVE 98/27/EC OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
of 19 May 1998
on injunctions for the protection of consumers’ interests
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
Acting in accordance with the procedure laid down in Article 189b of
the Treaty (3),
(1) Whereas certain Directives, listed in the schedule annexed to thisDirective, lay down rules with regard to the protection ofconsumers’ interests;
(2) Whereas currentmechanisms available bot h atnat ional and atCommunity level for ensuring compliance with those Directivesdo not always allow infringements harmful to the collectiveinterests of consumers to be terminated in good time; whereascollective interests mean interests which do not include thecumulation of interests of individuals who have been harmed byan infringement; whereas this is without prejudice to individualactions brought by individuals who have been harmed by aninfringement;
(3) Whereas, as far as the purpose of bringing about the cessation ofpractices that are unlawful under the national provisions applic-able is concerned, the effectiveness of national measures trans-posing the above Directives including protective measures that gobeyond the level required by those Directives, provided they arecompatible with the Treaty and allowed by those Directives, maybe thwarted where those practices produce effects in a MemberState other than that in which they originate;
(4) Whereas those difficulties can disrupt the smooth functioning ofthe internal market, their consequence being that it is sufficient tomove the source of an unlawful practice to another country inorder to place it out of reach of all forms of enforcement;whereas this constitutes a distortion of competition;
(5) Whereas those difficulties are likely to diminish consumer confi-dence in the internal market and may limit the scope for actionby organisations representing the collective interests ofconsumers or independentpublic bodies responsible forprotecting the collective interests of consumers, adverselyaffected by practices that infringe Community law;
(6) Whereas those practices often extend beyond the frontiersbetween the Member States; whereas there is an urgent need forsome degree of approximation of national provisions designed toenjoin the cessation of the abovementioned unlawful practicesirrespective of the country in which the unlawful practice hasproduced its effects; whereas, with regard to jurisdiction, this iswithout prejudice to the rules of private international law and theConventions in force between Member States, while respectingthe general obligations of the Member States deriving from the
(1) OJ C 107, 13. 4. 1996, p. 3 and OJ C 80, 13. 3. 1997, p. 10.
(2) OJ C 30, 30. 1. 1997, p. 112.
(3) Opinion of the European Parliament of 14 November 1996 (OJ C 362, 2.
12. 1996, p. 236). Council common position of 30 October 1997 (OJ C389, 22. 12. 1997, p. 51) and Decision of the European Parliament of 12March 1998 (OJ C 104, 6. 4. 1998). Council Decision of 23 April 1998.
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Treaty, in particular those related to the smooth functioning ofthe internal market;
(7) Whereas the objective of the action envisaged can only beattained by the Community; whereas it is therefore incumbent onthe Community to act;
(8) Whereas the third paragraph of Article 3b of the Treaty makes itincumbent on the Community not to go beyond what is necessaryto achieve the objectives of the Treaty; whereas, in accordancewith that Article, the specific features of national legal systemsmust be taken into account to every extent possible by leavingMember States free to choose between different options havingequivalent effect; whereas the courts or administrative authoritiescompetent to rule on the proceedings referred to in Article 2 ofthis Directive should have the right to examine the effects ofprevious decisions;
(9) Whereas one option should consist in requiring one or moreindependent public bodies, specifically responsible for the protec-tion of the collective interests of consumers, to exercise the rightsof action set out in this Directive; whereas another option shouldprovide for the exercise of those rights by organisations whosepurpose is to protect the collective interests of consumers, inaccordance with criteria laid down by national law;
(10) Whereas Member States should be able to choose between orcombine these two options in designating at national level thebodies and/or organisations qualified for the purposes of thisDirective;
(11) Whereas for the purposes of intra-Community infringements theprinciple of mutual recognition should apply to these bodiesand/or organisations; whereas the Member States should, at therequest of their national entities, communicate to the Commissionthe name and purpose of their national entities which are quali-fied to bring an action in their own country according to theprovisions of this Directive;
(12) Whereas it is the business of the Commission to ensure thepublication of a list of these qualified entities in the Official
JournaloftheEuropeanCommunities ; whereas, until a statement
to the contrary is published, a qualified entity is assumed to havelegal capacity if its name is included in that list;
(13) Whereas Member States should be able to require that a priorconsultation be undertaken by the party that intends to bring anaction for an injunction, in order to give the defendant an oppor-tunity to bring the contested infringement to an end; whereasMember States should be able to require that this prior consulta-tion take place jointly with an independent public body desig-nated by those Member States;
(14) Whereas, where the Member States have established that thereshould be prior consultation, a deadline of two weeks after therequest for consultation is received should be set after which,should the cessation of the infringement not be achieved, theapplicant shall be entitled to bring an action before the competentcourt or administrative authority without any further delay;
(15) Whereas it is appropriate that the Commission report on thefunctioning of this Directive and in particular on its scope and theoperation of prior consultation;
(16) Whereas the application of this Directive should not prejudice theapplication of Community competition rules,
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HAVE ADOPTED THIS DIRECTIVE:
Article 1
Scope
1. The purpose of this Directive is to approximate the laws, regula-
tions and administrative provisions of the Member States relating toactions for an injunction referred to in Article 2 aimed at the protectionof the collective interests of consumers included in the Directives listedin the Annex, with a view to ensuring the smooth functioning of theinternal market.
2. For the purpose of this Directive, an infringement shall mean any
act contrary to the Directives listed in the Annex as transposed into theinternal legal order of the Member States which harms the collectiveinterests referred to in paragraph 1.
Article 2
Actions for an injunction
1. Member States shall designate the courts or administrative authori-
ties competent to rule on proceedings commenced by qualified entitieswithin the meaning of Article 3 seeking:
(a) an order with all due expediency, where appropriate by way of
summary procedure, requiring the cessation or prohibition of anyinfringement;
(b) where appropriate, measures such as the publication of the decision,
in full or in part, in such form as deemed adequate and/or thepublication of a corrective statement with a view to eliminating thecontinuing effects of the infringement;
(c) insofar as the legal system of the Member State concerned so
permits, an order against the losing defendant for payments into thepublic purse or to any beneficiary designated in or under nationallegislation, in the event of failure to comply with the decisionwithin a time-limit specified by the courts or administrative authori-ties, of a fixed amount for each day’s delay or any other amountprovided for in national legislation, with a view to ensuring compli-ance with the decisions.
2. This Directive shall be without prejudice to the rules of private
international law, with respect to the applicable law, thus leadingnormally to the application of either the law of the Member State wherethe infringement originated or the law of the Member State where theinfringement has its effects.
Article 3
Entities qualified to bring an action
For the purposes of this Directive, a ‘qualified entity' means any body
or organisation which, being properly constituted according to the lawof a Member State, has a legitimate interest in ensuring that the provi-sions referred to in Article 1 are complied with, in particular:
(a) one or more independentpublic bodies, specifically responsible for
protecting the interests referred to in Article 1, in Member States inwhich such bodies existand/or
(b) organisations whose purpose is to protect the interests referred to in
Article 1, in accordance with the criteria laid down by their nationallaw.
Article 4
Intra-Community infringements
1. Each Member State shall take the measures necessary to ensure
that, in the event of an infringement originating in that Member State,any qualified entity from another Member State where the interestsprotected by that qualified entity are affected by the infringement, mayseize the court or administrative authority referred to in Article 2, on
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presentation of the list provided for in paragraph 3. The courts oradministrative authorities shall accept this list as proof of the legalcapacity of the qualified entity without prejudice to their right toexamine whether the purpose of the qualified entity justifies its takingaction in a specific case.
2. For the purposes of intra-Community infringements, and without
prejudice to the rights granted to other entities under national legisla-tion, the Member States shall, at the request of their qualified entities,communicate to the Commission that these entities are qualified tobring an action under Article 2. The Member States shall inform theCommission of the name and purpose of these qualified entities.
3. The Commission shall draw up a list of the qualified entities
referred to in paragraph 2, with the specification of their purpose. Thislistshall be published in t he Official Journal of the European
Communities ; changes to this list shall be published without delay, the
updated list shall be published every six months.
Article 5
Prior consultation
1. Member States may introduce or maintain in force provisions
whereby the party that intends to seek an injunction can only start thisprocedure after it has tried to achieve the cessation of the infringementin consultation with either the defendant or with both the defendant anda qualified entity within the meaning of Article 3(a) of the MemberState in which the injunction is sought. It shall be for the Member Stateto decide whether the party seeking the injunction must consult thequalified entity. If the cessation of the infringement is not achievedwithin two weeks after the request for consultation is received, the partyconcerned may bring an action for an injunction without any furtherdelay.
2. The rules governing prior consultation adopted by Member States
shall be notified to the Commission and shall be published in theOfficial Journal of the European Communities .
Article 6
Reports
1. Every three years and for the first time no later than five years
after the entry into force of this Directive the Commission shall submitto the European Parliament and the Council a report on the applicationof this Directive.
2. In its first report the Commission shall examine in particular:
— the scope of this Directive in relation to the protection of the
collective interests of persons exercising a commercial, industrial,craft or professional activity;
— the scope of this Directive as determined by the Directives listed in
the Annex;
— whether the prior consultation in Article 5 has contributed to the
effective protection of consumers.
Where appropriate, this report shall be accompanied by proposals with a
view to amending this Directive.
Article 7
Provisions for wider action
This Directive shall not prevent Member States from adopting or main-
taining in force provisions designed to grant qualified entities and anyother person concerned more extensive rights to bring action at nationallevel.
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Article 8
Implementation
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive nolater than 30 months after its entry into force. They shall immediatelyinform the Commission thereof.
When Member States adopt these measures, they shall contain a refer-
ence to this Directive or shall be accompanied by such reference on theoccasion of their official publication. The methods of making suchreference shall be adopted by Member States.
2. Member States shall communicate to the Commission the provi-
sions of national law which they adopt in the field covered by thisDirective.
Article 9
Entry into force
This Directive shall enter into force on the twentieth day following that
of its publication in the Official Journal of the European Communities .
Article 10
Addressees
This Directive is addressed to the Member States.
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ANNEX
LIST OF DIRECTIVES COVERED BY ARTICLE 1(*)
1. Council Directive 84/450/EEC of 10 September 1984 relating to the approx-
imation of the laws, regulations and administrative provisions of the MemberStates concerning misleading advertising (OJ L 250, 19.9.1984, p. 17).
2. Council Directive 85/577/EEC of 20 December 1985 to protect the consumer
in respect of contracts negotiated away from business premises (OJ L 372,31.12.1985, p. 31).
3. Council Directive 87/102/EEC of 22 December 1986 for the approximation
of the laws, regulations and administrative provisions of the Member Sttesconcerning consumer credit(OJ L 42, 12.2.1987, p. 48), as lastamended byDirective 98/7/EC (OJ L 101, 1.4.1998, p. 17).
4. Council Directive 89/552/EEC of 3 October 1989 on the coordination of
certain provisions laid down by law, regulation or administrative action inMember States concerning the pursuit of television broadcasting activities:Articles 10 to 21 (OJ L 298, 17.10.1989, p. 23 as amended by Directive97/36/EC (OJ L 202, 30.7.1997, p. 60)).
5. Council Directive 90/314/EEC of 13 June 1990 on package travel, package
holidays and package tours (OJ L 158, 23.6.1990, p. 59).
6. Council Directive 92/28/EEC of 31 March 1992 on the advertising of
medicinal products for human use (OJ L 113, 30.4.1992, p. 13).
7. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer
contracts (OJ L 95, 21.4.1993, p. 29).
8. Directive 94/47/EC of the European Parliament and of the Council of 26
October 1994 on the protection of purchasers in respect of certain aspects ofcontracts relating to the purchase of the right to use immovable properties ona timeshare basis (OJ L 280, 29.10.1994, p. 83).
9. Directive 97/7/EC of the European Parliament and of the Council of 20 May
1997 on the protection of consumers in respect of distance contracts (OJ L144, 4.6.1997, p. 19).
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10. Directive 1999/44/EC of the European Parliament and of the Council of 25
May 1999 on certain aspects of the sale of consumer goods and associatedguarantees (OJ L 171, 7.7.1999, p. 12).
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11. Directive 2000/31/EC of the European Parliament and of the Council of 8
June 2000 on certain legal aspects on information society services, in partic-ular electronic commerce, in the internal market (Directive on electroniccommerce) (OJ L 178, 17.7.2000, p. 1).
(*) Directive Nos 1, 6, 7 and 9 contain specific provisions on injunctive actions.