1998L0027 — EN — 07.07.1999 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B DIRECTIVE98/27/ECOFTHEEUROPEANPARLIAMENTANDOFTHECOUNCIL
of19May1998
oninjunctionsfortheprotectionofconsumers'interests
(OJ L 166, 11.6.1998, p. 51)
Amended by:
OfficialJournal
No page date
►M1 Directive 1999/44/EC of the European Parliament and of the Council of
25 May 1999L 171 12 7.7.1999
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DIRECTIVE 98/27/EC OF THE EUROPEAN PARLIAMENT
ANDOFTHECOUNCIL
of19May1998
oninjunctionsfortheprotectionofconsumers'interests
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 proposalfrom the Commission (1),
Having regard to the opinion of the Economic and SocialCommittee (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 this
Directive, lay down rules with regard to the protection of consu-mers' interests;
(2) Whereas current mechanisms available both at national and at
Community level for ensuring compliance with those Directives
do not always allow infringements harmful to the collective inter-
ests of consumers to be terminated in good time; whereas collec-tive interests mean interests which do not include the cumulationof interests of individuals who have been harmed by an infringe-ment; whereas this is without prejudice to individualactionsbrought by individuals who have been harmed by an infringe-
ment;
(3) Whereas, as far as the purpose of bringing about the cessation of
practices that are unlawful under the national provisions applic-
able is concerned, the effectiveness of national measures trans-posing the above Directives including protective measures thatgo beyond the level required by those Directives, provided theyare compatible with the Treaty and allowed by those Directives,may be thwarted where those practices produce effects in a
Member State other than that in which they originate;
(4) Whereas those difficulties can disrupt the smooth functioning of
the internalmarket, their consequence being that it is sufficient to
move the source of an unlawful practice to another country in
order 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 internalmarket and may l imit the scope for actionby organisations representing the collective interests of consu-mers or independent public bodies responsible for protecting thecollective interests of consumers, adversely affected by practices
that infringe Community law;
(6) Whereas those practices often extend beyond the frontiers
between the Member States; whereas there is an urgent need for
some degree of approximation of nationalprovisions 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 the
Conventions in force between Member States, while respecting
the generalobl igations 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). Councilcommon position of 30 October 1997 (OJ C 389, 22.
12. 1997, p. 51) and Decision of the European Parliament of 12 March 1998
(OJ C 104, 6. 4. 1998). CouncilDecision of 23 April1998.
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Treaty, in particular those related to the smooth functioning of
the internalmarket;
(7) Whereas the objective of the action envisaged can only be
attained by the Community; whereas it is therefore incumbent on
the Community to act;
(8) Whereas the third paragraph of Article 3b of the Treaty makes it
incumbent on the Community not to go beyond what is necessaryto achieve the objectives of the Treaty; whereas, in accordance
with that Article, the specific features of national legal systems
must 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 of
previous decisions;
(9) Whereas one option should consist in requiring one or more inde-
pendent public bodies, specifically responsible for the protectionof the collective interests of consumers, to exercise the rights of
action set out in this Directive; whereas another option should
provide 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 or
combine these two options in designating at nationall evelthe
bodies and/or organisations qualified for the purposes of thisDirective;
(11) Whereas for the purposes of intra-Community infringements the
principle of mutual recognition should apply to these bodies and/
or organisations; whereas the Member States should, at therequest of their nationalentities, communicate to the Commissionthe name and purpose of their nationalentities which are qual i-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 the publi-
cation of a list of these qualified entities in the Official Journal
of the European Communities ; whereas, untila statement to the
contrary is published, a qualified entity is assumed to have legal
capacity if its name is included in that list;
(13) Whereas Member States should be able to require that a prior
consultation 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; whereas
Member 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 there
should be prior consultation, a deadline of two weeks after the
request 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 the func-
tioning of this Directive and in particular on its scope and theoperation of prior consultation;
(16) Whereas the application of this Directive should not prejudice
the application 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 to
actions for an injunction referred to in Article 2 aimed at the protection
of the collective interests of consumers included in the Directives listedin the Annex, with a view to ensuring the smooth functioning of theinternalmarket.
2. For the purpose of this Directive, an infringement shall mean any
act contrary to the Directives listed in the Annex as transposed into the
internal legal order of the Member States which harms the collective
interests referred to in paragraph 1.
Article 2
Actionsforaninjunction
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 deci-
sion, in full or in part, in such form as deemed adequate and/or the
publication 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 the
public 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 autho-rities, 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
Entitiesqualifiedtobringanaction
For the purposes of this Directive, a ‘qualified entity’ means any body
or organisation which, being properly constituted according to the law
of 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 independent public bodies, specifically responsible for
protecting the interests referred to in Article 1, in Member States in
which such bodies exist and/or
(b) organisations whose purpose is to protect the interests referred to in
Article 1, in accordance with the criteria laid down by their national
law.
Article 4
Intra-Communityinfringements
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 or
administrative authorities shall accept this list as proof of the legal capa-city of the qualified entity without prejudice to their right to examinewhether the purpose of the qualified entity justifies its taking action in aspecific 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 the
Commission 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. Thislist shall be published in the Official Journal of the European Commu-
nities ; changes to this list shall be published without delay, the updated
list shall be published every six months.
Article 5
Priorconsultation
1. Member States may introduce or maintain in force provisions
whereby the party that intends to seek an injunction can only start this
procedure after it has tried to achieve the cessation of the infringement
in 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 the
qualified entity. If the cessation of the infringement is not achieved
within 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 the Offi-
cialJournaloftheEuropeanCommunities .
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 submit
to 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 collec-
tive interests of persons exercising a commercial, industrial, craft orprofessionalactivity;
— 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
Provisionsforwideraction
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 national
level.
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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 immediately
inform 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 officialpubl ication. 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 this
Directive.
Article 9
Entryintoforce
This Directive shall enter into force on the twentieth day following that
of its publication in the OfficialJournaloftheEuropeanCommunities .
Article 10
Addressees
This Directive is addressed to the Member States.
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ANNEX
LISTOFDIRECTIVESCOVEREDBYARTICLE1(1)
1. Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws,
regulations and administrative provisions of the Member States concerning misleading advertising
(OJ L 250, 19.9.1984, p. 17).
2. CouncilDirective 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 Sttes concerning consumer credit (OJ L 42, 12.2.1987,
p. 48), as last amended by Directive 98/7/EC (OJ L 101, 1.4.1998, p. 17).
4. CouncilDirective 89/552/EEC of 3 October 1989 on the coordination of certain provisions l aid
down by law, regulation or administrative action in Member States concerning the pursuit of televi-
sion broadcasting activities: Articles 10 to 21 (OJ L 298, 17.10.1989, p. 23 as amended by Directive
97/36/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. CouncilDirective 92/28/EEC of 31 March 1992 on the advertising of medicinalproducts for human
use (OJ L 113, 30.4.1992, p. 13).
7. CouncilDirective 93/13/EEC of 5 April1993 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 of contracts relating to the purchase of the right
to use immovable properties on a 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 L 144, 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 associated guarantees (OJ L 171, 7.7.1999, p. 12).
(1) Directive Nos 1, 6, 7 and 9 contain specific provisions on injunctive actions.