**#*^<l!wijiKîJ-» 
COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 23.12.1996 
COM(96) 725 final 
96/0025 (COD) 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
on injunctions for the protection of consumers' interests 
(presented by the Commission pursuant to Article 189 a (2) 
of the EC-Treaty) 

EXPLANATORY MEMORANDUM 
L PROCEDURE 
On 24 January 1996, the Commission adopted a proposal for a Directive relating to 
injunctions for the protection of consumers' interests1 on the basis of Article 100a of the 
Treaty establishing the European Community. This proposal is designed to ensure that 
Community consumer legislation is applied effectively, and covers injunctions against 
infringements of national provisions transposing Community law in this area. To this end, 
and especially to prevent intra-Community infringements, the proposed Directive applies 
the principle of mutual recognition to entities "qualified" to bring an action on the basis 
of lists which shall be drawn up by the Member States and published in the Official 
Journal of the European Communities. 
The Economic and Social Committee gave its opinion on 25 September 1996 and the 
European Parliament, to which the proposal was submitted under the co-decision 
procedure, gave its opinion at the first reading on 14 November 1996 (Rapporteur: M. 
Verde i Aldea). The legislative resolution adopted by the Parliament approves the 
proposal subject to 20 amendments, 17 of which were accepted in their entirety or in part 
by the Commission during the debate preceding the vote at the plenary sitting. 
II THE COMMISSION'S POSITION WITH REGARD TO THE AMENDMENTS 
Amendments 6, 19 and 25 were rejected by the Commission on the grounds of 
proportionality and, in particular, recitals 9, 10 and 11 of the proposal for a Directive. 
At the plenary sitting of the Parliament, the Commission undertook to accept amendments 
1, 3, 7, 9, 11, 13, 14, 15, 16, 17, 18, 22, 24 and, subject to certain changes, amendments 
8. 10. 20, and 23. 
OJ No CI07 of 13.4.19%, p. 3. 
The proposal for a Directive has been amended accordingly by the Commission under the 
terms of the provisions governing the co-decision procedure. 
Ill THE AMENDED PROPOSAL 
Recital 1 and Article 1 are amended on the basis of amendments 3, 10, and 11 brought 
in by the European Parliament. They are intended to make the proposal more consistent 
with respect to the concepts of the qualified entities defined in Article 3 and of the 
protected consumers' interests indicated in the directives listed in the Annex. In Article 
1 (1), "coordinate" is replaced by "approximate" to bring it into line with the term used 
in Article 100a) 1) of the Treaty. Since this provides the legal basis for the proposed 
Directive, the Commission considers the change in the wording to be justified. 
Recital 15 is amended in accordance with amendment 7 so as to point out that, since the 
law applying to the substance of a dispute comprises provisions transposing one of the 
directives listed in the Annex, it should be applied in full. Indeed, the proposed Directive 
does not make for any change to the rules of private international law or to the 
conventions in force between the Member States. 
Recital 15a is added, which goes hand in hand with the amendment to Article 4 (2) in 
line with amendments 8 and 24, accepted by the Commission in principle. The 
Parliament's amendment is designed to avoid differences in interpretation of the 
"reasonable time limit" which appears in the initial proposal and the problems involved 
in applying such a vague concept. In the amended proposal, the limit is expressed in 
weeks firstly because "working days" are not necessarily the same in the Member States 
concerned and secondly because amendments 8 and 24 refer to two different periods (30 
and 20 days respectively). As this provision applies in the case of summary procedure 
(Article 2 a)), the three weeks represent what ought to be a "reasonable" period of time 
in the specific context of the Directive. 
Recital 16a is introduced in line with amendments 9 and 23. The underlying principle 
conforms with paragraph 5 of the comments on the articles in the initial proposal and the 
Commission endorses it fully. However, since it is liable to anticipate the future activities 
of the Community legislature if it appears in the enacting terms, it is thought preferable 
to include it in the recitals. 
Article 2 is amended in line with amendments 13, 14 and 15. The change under c), in 
particular, is in keeping with the principle of proportionality in that it is intended to leave 
the Member States as much latitude as possible. This amendment ensures that the type 
and beneficiary of the payment will actually be determined by national law. 
Article 2a is introduced in the amended proposal in line with amendment 16 and is 
intended to clarify the distinction (which was implicit in the initial proposal) between 
the concepts of being qualified to act and having an interest in doing so. The Directive 
is designed to introduce mutual recognition of the qualification for action ("qualified 
entities") but the interest in bringing an action is governed by national law and must be 
assessed separately in each case by the judge before whom the action is brought. 
Article 3 is reworded to comply with amendments 17 and 18 and to clarify matters in the 
spirit of amendment 20. Under the Commission's proposal, the Member States will apply 
the "criteria laid down by national law", to any organisation existing in their territories, 
irrespective of the national, transnational or European nature of such organisations. 
Article 5 is amended in line with amendment 22. The rules governing prior notification, 
in particular, must enable the action to be brought "as quickly as possible", since it is 
done so under summary procedure (Article 2 a)). 
Amended proposal for a European Parliament and Council Directive 
on injunctions for the protection of consumers' interests 
(Submitted by the Commission pursuant to Article 189 a(2) of the EC Treaty 
on ) 
INITIAL PROPOSAL AMENDED PROPOSAL 
THE EUROPEAN PARLIAMENT AND 
THE COUNCIL OF THE EUROPEAN 
UNION 
Having regard to the Treaty establishing the Unchanged 
European Community, and in particular 
Article 100a thereof, 
Having regard to the proposal from the 
Commission, 
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, 
(1) Whereas certain Community directives, 
listed in the schedule annexed to this 
Directive, lay down rules with regard to 
protection of the economic interests of 
consumers; Whereas certain Community directives, listed 
in the schedule annexed to this Directive, lay 
down rules with regard to protection of the 
economic interests of consumers; whereas 
these include the interests of persons 
exercising a commercial, industrial or craft 
activity and those of the public at large, as 
against certain unlawful practices and their 
effects in terms of unfair competition: 
(2) Whereas current mechanisms available 
both at national and at Community level 
for ensuring compliance with those 
directives do not always allow the 
effects of infringements of their 
provisions to be corrected in good time 
to protect consumers' interests; Unchanged 
(3) Whereas, as far as the restraint of Unchanged 
unlawful practices is concerned, the 
efficacy of national measures 
transposing those Directives is thwarted 
OJNoC 107, 13.4.1996, p. 3 
tr 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
(4) Whereas those difficulties can disrupt Unchanged 
the smooth functioning of the internal 
market, their consequence being that it 
is sufficient to move the source of an 
unlawful practice in order to place it out 
of reach of all forms of redress; whereas 
this constitutes a distortion of 
competition that is harmful to the great 
majority of firms which comply with the 
provisions of national law; 
(5) Whereas those difficulties are likely to Unchanged 
diminish consumer confidence in the 
internal market and may have 
discriminatory effects on organizations 
representing consumers adversely 
affected by a practice that infringes 
Community law; 
(6) Whereas those practices often extend Unchanged 
beyond the frontiers of the Member 
States, which is, indeed, the reason for 
approximating the systems of 
substantive law in question; 
Whereas, there is thus an urgent need Unchanged 
.for some degree of coordination of 
national provisions designed to enjoin 
the cessation of the abovementioned 
unlawful practices, so that the existing 
means of redress can take effect, 
irrespective of the country in which the 
unlawful practice has had its effects; 
(8) Whereas the objective of the action Unchanged 
envisaged can only be attained by the 
Community legislature; whereas it is 
therefore incumbent on the Community 
legislature to act; 
(9) Whereas the third paragraph of Article Unchanged 
3b of the Treaty makes it incumbent of 
the Community not to go beyond what 
is necessary to achieve the objectives of 
the Treaty; whereas, in accordance with 
that Article, the specific features of 
certain national legal systems must be (7) 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
respected; whereas that condition can be 
met by leaving Member States free to 
choose between different options having 
equivalent effect; 
(10)Whereas one option should consist in 
requiring an independent public body, 
specifically responsible for the 
protection of consumer interests and/or 
competition matters, to exercise the 
rights of action set out in this Directive; Unchanged 
(11) Whereas the other option should provide Unchanged 
for the exercise of those rights by 
organizations which have a legitimate 
interest in protecting consumers, or by 
organizations representing firms, in 
accordance with criteria laid down by 
national law; 
(12) Wliereas Member States should be able Unchanged 
to combine those two options; 
(13) Wliereas Member States should Unchanged 
designate at national level the bodies 
and/or organizations qualified for the 
purposes of this Directive; whereas the 
principle of mutual recognition should 
be applied to the bodies and/or 
organizations thus certified by Member 
States; 
( 14) Whereas it is incumbent on the Member 
States to communicate to the 
Commission the list of bodies and/or 
organizations thus qualified for the 
purposes of this Directive, as well as 
any changes to these national lists; 
whereas it is the business of the 
Commission to ensure their publication 
in the Official Journal of the European 
Communities; 
(15) Wliereas this Directive should be 
without prejudice to the rules of private 
international law and the conventions in 
force between the Member States; Unchanged 
Whereas this Directive should be without 
prejudice to the rules of private international 
law and the conventions in force between the 
Member States from which it follows that the 
national law applying to the substance of a 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
dispute under the above rules should be 
applied in full; 
(15 a) Whereas, where the Member States 
have established that there should be prior 
intervention by a national qualified entity 
having territorial jurisdiction with a view to 
initiating action under this Directive, a 
deadline of three weeks should be set after 
which, should the latter body fail to respond 
or respond in the negative, the applicant shall 
be entitled to bring an action before the 
competent authority without further notice; 
(16) Whereas Member States should be able 
to require that a prior notification be 
issued by the party that intends to bring 
an action for an injunction, in order to 
give the defendant an opportunity to 
bring the contested infringement to an 
end; Unchanged 
(16 a) Wliereas the provisions of this 
Directive could also be extended to future 
directives whose aims are adapted to the 
general objectives referred to in Article 1 ; 
(17) Whereas the application of this Directive Unchanged 
should not prejudice the application of 
Community competition rules, 
HAVE ADOPTED THIS DIRECTIVE: 
Article 1 
Scope 
1. The purpose of this Directive is to 1. The purpose of this Directive is to 
coordinate the laws, regulations and approximate the laws, regulations and 
administrative provisions of Member States administrative provisions of Member States 
relating to certain remedies designed to relating to certain remedies aimed at 
protect consumers' interests, so as to ensure protecting the collective interests of consumers 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
the smooth functioning of the internal market, and persons exercising a commercial. 
industrial or craft activity, and the interests of 
the public at large, against the infringements 
referred to in Paragraph 2. with a view to 
ensuring the smooth functioning of the internal 
market. 
2. For the purposes of this Directive, an 
infringement shall mean any act contrary to 
the directives listed in the Annex and 
transposed into the internal legal order of the 
Member States which harms consumers' 
interests. 2. For the purposes of this Directive, an 
infringement shall mean any act which harms 
consumers' interests, as enshrined in the 
directives listed in the Annex and transposed 
into the internal legal order of the Member 
States, or has unfair consequences for 
competitors or is contrary to the interests of 
the public at large. 
Article 2 
Actions for an injunction 
1. Member States shall designate the court or 
authority competent to rule on the 
proceedings commenced by the qualified 
entities within the meaning of Article 3, and 
seeking: Unchanged 
a) an order, given at very short notice, and 
where appropriate by way of summary 
procedure, requiring the cessation of 
any act that is to be regarded as an 
infringement; a) an order, (...) where appropriate by way of 
summary procedure, requiring the cessation of 
any act that is to be regarded as an 
infringement; 
b) where appropriate, adoption of the b) where appropriate, to rectify the effects of 
measures needed to rectify the effects of the infringement by taking or requiring the 
the infringement, including publication necessary measures, including publication of 
of the decision; the decision; 
(c) an order against the losing party for c) an order against the I 
payment to the plaintiff, in the event of failure payment to the State or „.», „~. 
to comply with the decision within a time- provided for in national legislation, in the 
limit specified by the authority, of a fixed event of failure to comply with the decision osing party for 
or the beneficiary 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENTS AMENDMENTS 
amount for each day's delay or any other 
amount provided for in national legislation, 
with a view to ensuring compliance with the 
decisions. within a time-limit specified by the authority, 
of a penalty payment for each day's delay or 
any other financial penalty provided for in 
national legislation, with a view to ensuring 
compliance with the decisions. 
2. When the action may, pursuant to a 
convention, be brought in a Member State 
other than the one whose legislation has 
allegedly been infringed, the competent 
authority hearing the case shall take the same 
measures as are laid down for infringements 
of national legislation. Unchanged 
Article 2a (new) 
Where the national legislation of a member 
State establishes stricter conditions with 
regard to the recognition of the interest of 
federations under its jurisdiction bringing an 
action, these shall remain unaffected. 
Article 3 
Entities qualified to bring an action 
For the purposes of this Directive, a 
'qualified entity' means any body or 
organization which, according to 
national law, has a legitimate interest in 
ensuring that the provisions referred to 
in Article 1 are complied with, in 
particular: 
a) an independent public body, specifically 
responsible for protecting consumer 
interests, in Member States in which 
such bodies exists; 1. For the purposes of this Directive, a 
'qualified entity' means any body or 
organization which, being properly constituted 
according to the law in force in a Member 
State, has a legitimate interest in ensuring that 
the provisions referred to in Article 1 are 
complied with, in particular: 
Unchanged 
and/or and/or 
b) organizations with a legitimate interest b) organizations with a legitimate interest in 
in protecting consumer interests, as well protecting consumer interests, as well as 
^ 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
as organizations representing firms or 
federations of firms, in accordance with 
the criteria laid down by their national 
law. organizations representing firms or federations 
of firms, in so far as they are able to seek the 
corresponding remedies under their national 
legislation. 
3. For the purposes of this Directive, and 
without prejudice to the rights granted to 
other entities under national legislation, 
each Member State shall draw up at 
national level a list of entities qualified 
to bring an action under Article 2. The 
bodies and organizations included in 
that list shall receive a document 
certifying their right to appear before the 
relevant courts or authorities. 
The lists drawn up in accordance with 
paragraph 2, as well as any changes 
thereto, shall be communicated by the 
Member States to the Commission and 
shall be published in the C Series of the 
Official Journal of the European 
Communities. 2. For the purposes of this Directive, and 
without prejudice to the rights granted to other 
entities under national legislation, each 
Member State shall draw up at national level a 
list of entities qualified to bring an action 
under Article 2, including, where appropriate, 
the European organizations and/or federations 
existing in its territory provided they meet the 
criteria laid down by national law. The bodies 
and organizations included in that list shall 
receive a document certifying their right to 
appear before the relevant courts or 
authorities. 
Unchanged 
Article 4 
Intra-Community infringements 
1. Member States shall take the measures Unchanged 
necessary to ensure that any qualified 
entity whose interests are affected by an 
infringement originating in another 
Member State may seise the court or 
competent authority referred to in Article 
2, on presentation of the document 
provided for in Article 3 (2). 
Member States may provide that direct 
seisure referred to in paragraph 1 shall be 
sought only after a prior seisure of the 
qualified entity of the Member State 
having territorial jurisdiction, with a view 
to ensuring that it brings the action 2. Member States may provide that direct 
seisure refered to in paragraph 1 shall be 
sought only after a prior seisure of the 
qualified entity of the Member State having 
territorial jurisdiction, with a view to ensuring 
that it brings the action provided for in Article 
/h 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
provided for in Article 2; in such case 
Member States shall give the qualified 
national entitles a reasonable time-limit 
within which to react. 2; in such cases Member States shall give the 
qualified national entity a time-limit for 
reaction not exceeding 3 weeks from the date 
of reception of the application by the qualified 
entity concerned. 
Article 5 
Prior notification 
1. Member States may introduce or 
maintain in force a requirement that the 
party that intends to seek an injunction 
shall issue a prior notification to the 
defendant; Member States which rely on 
this option shall ensure that the rules 
governing prior notification shall permit 
an action for an injunction within a 
reasonable time-limit. 1 Member States may introduce or 
maintain in force a requirement concerning the 
issuing of an injunction ordering the party 
responsible for the infringement to cease or 
eliminate its unlawful practices or prior 
notification of that party as a preliminary to 
the actions referred to in Article 2: Member 
States which rely on this option shall ensure 
that the rules governing such injunctions or 
prior notification shall permit an action for an 
injunction to be brought as quickly as 
possible. 
2. The rules governing prior notification Unchanged 
adopted by Member States shall be 
notified to the Commission and shall be 
published in the C Series of the Official 
Journal of the European Communities. 
3. The limitation period shall cease to run Unchanged 
once the prior notification has been 
issued. 
Article 6 
Reports 
Every three years and for the first time no 
later than 31 December 2000 the 
Commission shall present the European 
Parliament and the Council with a report on 
the application of this Directive. Unchanged 
/!/) 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
Article 7 
Provisions for wider actions 
This Directive shall not prevent Member Unchanged 
States from adopting or maintaining in force 
provisions designed to grant representative 
organizations of consumers or professionals 
and/or public bodies and any other person 
concerned more extensive rights to bring 
action at national level. 
Article 8 
Implementation 
1. Member States shall bring into force the Unchanged 
laws, regulations and administrative 
provisions necessary to comply with this 
Directive by 31 December 1997. They 
shall immediately inform the 
Commission thereof. 
When Member States adopt these 
provisions, these shall contain a reference 
to this Directive or shall be accompanied 
by such reference at the time of their 
official publication. The procedure for 
such reference shall be adopted by 
Member States. . 
Member States shall communicate to the Unchanged 
Commission the provisions of national 
law which they adopt in the field covered 
by this Directive. 
Article 9 Unchanged 
Entry into force 
This Directive shall enter into force on 
the twentienth day following that of its 
publication in the Official Journal of the 
European Communities. 
Article 10 Unchanged 
/Il 
INITIAL PROPOSAL 
COM(95)712 du 24.1.1996 AMENDED PROPOSAL FOLLOWING 
THE PARLIAMENT'S AMENDMENTS 
Addressees 
This Directive is addressed to the 
Member States. 
03 
ANNfc>v 
LIST OF DIRECTIVES COVERED BY ARTICLE 1(2) 
Council Directive 84/450/EEC of 10 September 1984 (misleading advertising); 
OJNoL250, 19.9.1984, p. 17; 
Council Directive 85/577/EEC of 20 December 1985 (contracts negotiated away from 
business premises); OJ No L 372, 31.12.1985, p. 31; 
Council Directive 87/102/EEC of 22 December 1986 - OJ No L 42, 12.2.1987, p. 48, 
as amended by Council Directive 90/88/EEC of 22 February 1990 (consumer credit) 
(OJN0L6I, 10.3.1990, p. 14); 
Council Directive of 89/552/EEC of 3 October 1989 (on the pursuit of television 
broadcasting activities): Articles 10 to 23, OJ No L 298, 17.10.1989, p. 23; 
Council Directive 90/314/EEC of 13 June 1990 (package travel, package holidays and 
package tours); OJ No L 158, 23.6.1990, p. 59; 
Council Directive 92/28/EEC of 31 March 1992 (advertising of medicinal products for 
human use); OJ No L 113, 30.4.1992, p. 13; 
Council Directive 93/13/EEC of 5 April 1993 (unfair terms in consumer contracts); 
OJNoL95, 21.4.1993, p. 29; 
European Parliament and Council Directive 94/47/EC of 26 October 1994 (protection 
of purchasers in respect of certain aspects of contracts relating to the purchase of 
the right to use immoveable properties on a timeshare basis); OJ No L 280, 
29.10.1994, p. 83; 
European Parliament and Council Directive ... of... (contracts negotiated at a distance). 
4H 



ISSN 0254-1475 
COM(96) 725 final 
DOCUMENTS 
EN 10 06 
Catalogue number : CB-CO-96-737-EN-C 
ISBN 92-78-14171-2 
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