79 Official  Journal  of the  European  Communities  No  C 194/3 
II 
(Prepa  ratory  A cts) 
COMMISSION 
Amendment  to the  proposal  for  a Council  Directive  relating  to the  approximation  of 
the laws,  regulations  and  administrative  provisions  of the  Member  States  concerning 
misleading  and  unfair  advertising  (') 
(Submitted  by  the Commission  to the Council  pursuant  to Article  149  (2) of the EEC  Treaty 
ORIGINAL  TEXT AMENDED  TEXT 
Article  2 
For the purpose  of this  Directive: 
.— 'Advertising'  means  the  making  of a representation 
in any  form  in the  course  of a trade,  business  or 
profession  for  the  purpose  of  promoting  the 
supply  of goods  or services, 
unchanged Article  2 
For the purpose  of this  Directive: 
— 'Advertising'  means  the  making  of  any  pro-
nouncement  in the  course  of a trade,  business  or 
profession  for  the  purpose  of  promoting  the 
supply  of goods  or services, 
— 'Misleading  advertising'  means  any  advertising 
which  is entirely  or partially  false  or which, 
having  regard  to its total  effect,  including  its pres-
entation,  misleads  or is likely  to mislead  persons 
addressed  or reached  thereby,  unless  it could  not 
reasonably  be foreseen  that  these  persons  would 
be reached  thereby, 
— 'Unfair  advertising'  means  any  advertising  which:  —  'Unfair  advertising'  means  any  advertising  which: 
(a) casts  discredit  on another  person  by improper  (a)  casts  discredit  on another  person  by (one  word 
reference  to his nationality,  origin,  private  life  deleted)  reference  to his  nationality,  origin, 
or good  name;  or private  life  or good  name;  or 
(b) injures  or is likely  to injure  the  commercial  (b)  unchanged 
reputation  of  another  person  by  false 
statements  or  defamatory  comments 
concerning  his firm,  goods  or services;  or 
C) OJ No C 70, 21. 3. 1978,  p. 4. 
No C 194/4 Official  Journal  of the European  Communities 1. 8. 79 
ORIGINAL  TEXT 
(c) appeals  to sentiments  of fear,  or promotes 
social  or religious  discrimination;  or 
(d) clearly  infringes  the  principle  of the  social, 
economic  and  cultural  equality  of the  sexes; 
or 
(e) exploits  the  trust,  credulity  or  lack  of 
experience  of a consumer,  or influences  or is 
likely  to influence  a consumer  or the  public  in 
general  in any  other  improper  manner; 
— 'Goods'  means  property  of any  kind,  whether 
movable  or  immovable,  and  any  rights  or 
obligations  relating  to property. AMENDED  TEXT 
(c) abuses  or  unjustifiably  arouses  sentiments  of 
fear;  or 
(d) promotes  discrimination  on  grounds  of sex,  race 
or religion;  or 
(e) abuses  the  trust,  credulity  or  lack  of 
experience  of a consumer,  or influences  or is 
likely  to influence  a consumer  or the  public  in 
general  in any  other  improper  manner; 
unchanged 
Article  3 Article  3 
1. In  determining  whether  advertising  is misleading 
or unfair,  pronouncements  shall  be  taken  into 
consideration  concerning  in particular: 1. In  determining  whether  advertising  is misleading 
or unfair,  representations  shall  be  taken  into 
consideration  concerning  in particular:  (English  text 
only) 
(a) the  characteristics  of the  goods  or services,  such 
as nature,  performance,  composition,  method  and 
date  of manufacture  or provision,  fitness  for 
purpose,  usability,  quantity,  quality,  geographical 
or commercial  origin,  properties  and  the  results 
to be expected  from  use; unchanged 
(b) the  conditions  of supply  of the  goods  or services,  unchanged 
such  as value  and  price,  conditions  of contract 
and of guarantee; 
(c) the  nature,  attributes  and  rights  of the  advertiser,  unchanged 
such  as his identity,  solvency,  abilities,  ownership 
of intellectual  property  rights  or  awards  and 
distinctions. 
2. Advertising  shall  in particular  be regarded  as 
misleading  when  it omits  material  information,  and, 
by reason  of that  omission,  gives  a false  impression  or 
arouses  expectations  which  the  advertiser  cannot 
satisfy. 2. Advertising  shall  in particular  be regarded  as 
misleading  when  it is not  readily  recognizable  as  an 
advertisement  or  when  it omits  material  information, 
and,  by  reason  of  that  omission,  gives  a false 
impression  or arouses  reasonable  expectations  which 
the advertised  goods  or services  cannot  satisfy. 
Article  5 Article  5 
Member  States  shall  adopt  adequate  and  effective 
laws  against  misleading  and  unfair  advertising. Member  States  shall  adopt  adequate  and  effective 
laws  against  misleading  and  unfair  advertising. 
1. 8. 79 Official  Journal  of the  European  Communities No C 194/5 
ORIGINAL  TEXT- AMENDED  TEXT 
Such  laws  shall  provide  persons  affected  by 
misleading  or  unfair  advertising,  as  well  as 
associations  with  a legitimate  interest  in the  matter, 
with  quick,  effective  and  inexpensive  facilities  for 
initiating  appropriate  legal  proceedings  against 
misleading  and  unfair  advertising. Such  laws  shall  provide  persons  affected  by 
misleading  or  unfair  advertising  as  well  as 
associations  with  a legitimate  interest  in the  matter, 
with  quick,  effective  and  inexpensive  facilities  for 
either: 
(a) initiating  appropriate  legal  proceedings  against 
misleading  or unfair  advertising;  or 
(b) bringing  the  matter  before  an  administrative 
authority  with  adequate  powers. 
Member  States  shall  in particular  ensure  that: 
— the  courts  are enabled,  even  without  proof  of fault 
or of actual  prejudice: 
(a) to order  the  prohibition  or  cessation  of 
misleading  or unfair  advertising;  and 
(b) to take  such  a decision  under  an accelerated 
procedure,  with  an interim  or final  effect, Member  States  shall  in particular  ensure  that: 
— the  courts  or the administrative  authority,  as appro-
priate,  are  enabled,  even  without  proof  of 
intention  or  negligence  or of actual  prejudice: 
(a) to order  the  prohibition  or  cessation  of 
misleading  or unfair  advertising;  and 
(b) to take  such  a decision  under  an accelerated 
procedure,  with  an interim  or final  effect, 
— the  courts  are enabled: 
(a) to require  publication  of  a  corrective 
statement;  and 
(b) to require  publication  of their  decision  either 
in full  or in part  and  in such  form  as they  may 
judge  adequate; — the  courts  or the administrative  authority,  as appro-
priate,  are  enabled: 
(a) to require  publication  of  a  corrective 
statement;  and 
(b) to require  publication  of their  decision  either 
in full  or in part  and  in such  form  as they  may 
judge  adequate; 
— the  sanctions  for  infringing  these  laws  are  a 
sufficient  deterrent,  and,  where  appropriate,  take 
into account  the  financial  outlay  on  the 
advertising,  the  extent  of the  damage  and  any 
profit  resulting  from  the advertising. Member  States  shall  ensure  that  the  consequences  of 
infringing  laws  and  decisions  in the field  of misleading 
and unfair  advertising  take  into  account  the  extent  of 
the harm. 
Where  the  abovementioned  powers  are  entrusted  to an 
administrative  authority,  the  authority  shall  not  be 
controlled  by  advertising  interests,  shall  be obliged  to 
give reasons  for its decisions,  and  shall  be under  a duty 
to exercise  its  powers  so  as effectively  to  control 
misleading  and  unfair  advertising;  and  procedures  shall 
exist whereby  improper  exercise  by the  authority  of its 
power  or improper  failure  by the authority  to exercise  its 
powers  or to apply  reasonable  standards  can  be reviewed 
by the courts  at the request  of the parties. 
No C 194/6 Official  Journal  of the  European  Communities 1. 8. 79 
ORIGINAL  TEXT  AMENDED  TEXT 
Article  6 
Where  the  advertiser  makes  a factual  claim,  the 
burden  of proof  that  his claim  is correct  shall  lie with 
him. 
Article  9 
Member  States  shall  bring  into  force  the  measures 
necessary  to comply  with  this  Directive  within  18 
months  of its notification  and  shall  forthwith  inform 
the Commission  thereof. 
Member  States  shall  communicate  to the Commission 
the text  of the main  provisions  of national  law  which 
they  adopt  in the field  covered  by this  Directive. Article  6 
Originally  Article  7 — unchanged 
Article  7 
(Originally  Article  6) 
Where  the  advertiser  makes  a factual  claim,  the 
burden  of proof  that  his claim  is correct  shall  in civil 
and administrative  proceedings  lie with  him. 
Article  9 
Member  States  shall  bring  into  force  the  measures 
necessary  to comply  with  this  Directive  within  24 
months  of its notification  and  shall  forthwith  inform 
the Commission  thereof. 
Member  States  shall  communicate  to the Commission 
the text  of all provisions  of national  law  which  they 
adopt  in the field  covered  by this  Directive.