Proposal for a European Parliament and Council Directive on injunctions for the protection of consumers' interests

(96/C 107/03)

(Text with EEA relevance)

COM(95) 712 final - 96/025(COD)

(Submitted by the Commission on 16 February 1996)

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 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,

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 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;

Whereas, as far as the restraint of unlawful practices is concerned, the efficacy of national measures transposing those Directives is thwarted when those practices have their effects in a Member State other than the country in which they originate;

Whereas those difficulties can disrupt 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;

Whereas those difficulties are likely to 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;

Whereas those practices often extend 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 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;

Whereas the objective of the action envisaged can only be attained by the Community legislature; whereas it is therefore incumbent on the Community legislature to act;

Whereas the third paragraph of Article 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 respected; whereas that condition can be met by leaving Member States free to choose between different options having equivalent effect;

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;

Whereas the other option should provide 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;

Whereas Member States should be able to combine those two options;

Whereas Member States should 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;

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;

Whereas this Directive should be without prejudice to the rules of private international law and the conventions in force between the Member States;

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;

Whereas the application of this Directive should not prejudice the application of Community competition rules,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

1. The purpose of this Directive is to coordinate the laws, regulations and administrative provisions of Member States relating to certain remedies designed to protect consumers' interests, so as to ensure 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.

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:

(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;

(b) where appropriate, adoption of the measures needed to rectify the effects of the infringement, including publication of the decision;

(c) an order against the losing party for payment to the plaintiff, in the event of failure to comply with the decision within a time-limit specified by the authority, of a fixed amount for each day's delay or any other amount 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.

Article 3

Entities qualified to bring an action

1. 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; and/or

(b) organizations with a legitimate interest in protecting consumer interests, as well as organizations representing firms or federations of firms, in accordance with the criteria laid down by their national law.

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. The bodies and organizations included in that list shall receive a document certifying their right to appear before the relevant courts or authorities.

3. 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.

Article 4

Intra-Community infringements

1. Member States shall take the measures 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).

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 provided for in Article 2; in such case Member States shall give the qualified national entities a reasonable time-limit within which to react.

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.

2. The rules governing prior notification 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 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.

Article 7

Provisions for wider actions

This Directive shall not prevent Member 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 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.

2. Member States shall communicate to the Commission the provisions of national law which they adopt in the field covered by this Directive.

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.

ANNEX

LIST OF DIRECTIVES COVERED BY ARTICLE 1 (2)

- Council Directive 84/450/EEC of 10 September 1984 (misleading advertising); OJ No L 250, 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) (OJ No L 61, 10. 3. 1990, p. 14);

- Council Directive 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); OJ No L 95, 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 time-share basis); OJ No L 280, 29. 10. 1994, p. 83;

- European Parliament and Council Directive . . . of . . . (contracts negotiated at a distance).