A4-0503/98

Resolution on the communication from the Commission to the Council, the European Parliament and the Economic and Social Committee on the follow-up to the Green Paper on commercial communications in the internal market (COM(98)0121 - C4-0252/98)

The European Parliament,

- having regard to the communication from the Commission (COM(98)0121 - C4-0252/98),

- having regard to Articles 30, 36, 56, 59, 85 and 128 to 130 of the EC Treaty,

- having regard to the Commission Green Paper on Commercial Communications in the Internal Market (COM(96)0192 - C4-0365/96) and its resolution thereon of 15 July 1997 ((OJ C 286, 22.9.1997, p. 43.)),

- having regard to the Commission Green Paper on the protection of minors and human dignity in audio-visual and information services (COM(96)0483 - C4-0621/96) and its resolution thereon of 24 October 1997 ((OJ C 333, 10.11.97, p. 420.)),

- having regard to the Television without Frontiers Directive 89/552/EEC ((OJ L 298, 17.10.1989, p. 23.)), the Misleading Advertising Directive 84/450/EEC ((OJ L 250, 19.9.1984, p. 17.)), the Directive on Advertising for medicinal products for human use 92/28/EEC ((OJ L 113, 30.4.1992, p. 13.)), the Data Protection Directive 95/46/EC ((OJ L 281, 23.11.1995, p. 31.)), the Directive on Labelling, Presentation and Advertising for Foodstuffs for sale to the ultimate consumer 79/112/EEC ((OJ L 33, 8.2.1979, p. 1.)), the Directive on coordination of laws, regulations and administrative provisions relating to direct life insurance 92/96/EEC ((OJ L 360, 9.12.1992, p. 1.)) and the Commission recommendation on codes of practice for the protection of consumers in respect of contracts negotiated at a distance (distance selling) 92/295/EEC ((OJ L 156, 10.6.1992, p. 21.)),

- having regard to its resolution of 24 April 1997 on the Commission Communication on illegal and harmful content on the Internet ((OJ C 150, 19.5.1997, p. 38.)),

- having regard to its resolution of 20 February 1997 on the Commission Communication on Priorities for Consumer Policy 1996-1998 ((OJ C 85, 17.3.1997, p.133.)),

- having regard to the cases dealt with by the European Court of Justice since 1973 in the field of commercial communications,

- having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy and the opinions of the Committee on Legal Affairs and Citizens' Rights and the Committee on Culture, Youth, Education and the Media (A4-0503/98),

A. whereas the European commercial communications sector employs more than 1 million people and is growing, especially thanks to the development of new communications technologies; whereas this sector is particularly important in terms of youth employment in Europe,

B. whereas the Commission's Communication is a significant contribution to the development of a coherent policy towards commercial communication,

C. whereas the Parliament particularly welcomes the purpose of the Communication, which is to apply Internal Market principles to commercial communication whilst safeguarding several public interest objectives, such as consumer protection, public health protection, the protection of intellectual and commercial property and the protection of privacy, which are covered in the Treaty,

D. whereas it is of fundamental importance, with the aim to avoid renationalisation, that the principles of mutual recognition and country of origin, as the key principles of the Internal Market, are strictly applied to all cross-border commercial communications, in particular in the context of electronic commerce,

E. whereas in the Communication, several new instruments are launched with the aim to contribute to the realisation of an Internal Market for Commercial Communications -establishment of a Commercial Communications Expert Group, making available a single contact point and a website, establishment of a Commercial Communications Database, setting up a network of academic experts; whereas a number of improvements are also proposed to increase the transparency and efficiency of existing Community instruments, in particular the Article 169 procedure - application of a proportionality assessment methodology,

F. whereas it is not clear how some of the new instruments proposed in the Communication will contribute to the core objective of the Communication, i.e. the establishment of the Internal Market for commercial communications, notably the functioning of the Commercial Communications Expert Group,

G. whereas the proposed assessment methodology which is intended to increase transparency and efficiency of existing procedures for dealing with infringements of the EC Treaty in the area of commercial communications lacks 'teeth¨ to be effective in practice, in particular, as the Commission fails to make its application mandatory and work within strict time limits,

H. whereas there is no case law to the effect that restricting cross-border commercial communications based on cultural - taste & decency - or social criteria falls within the concept of the general good,

I. whereas the infringement procedure under Article 169 of the EC Treaty does not currently work in an efficient and satisfactory way as a result of which access to justice is hampered,

J. whereas the Article 169 procedure is also becoming increasingly ineffective as an instrument for deciding whether or not to initiate, and effectively follow through, infringement procedures against Member States,

K. whereas an important cause of the failure of the infringement procedure depends on the position taken by the Commission's Legal Service whose positive opinion in respect of the complaint is needed to pursue an infringement,

L. whereas lack of transparency makes the infringement procedure prone to political considerations rather than to a purely legal assessment of the merits; whereas this has led to a number of unacceptable delays in pursuing certain infringement cases in the area of commercial communications,

M. whereas the obstacles standing in the way of access to justice for companies and citizens undermine public confidence in the Internal Market as well as the credibility of the EU institutions,

N. whereas this calls for increased possibilities for parliamentary scrutiny to make the Commission more accountable for its handling of pending and new infringement cases,

O. whereas a number of significant improvements are still needed to achieve the Commission's objective of establishing an Internal Market for Commercial Communications. These improvements should serve to increase transparency and efficiency of existing Community procedures, as well as of the new instruments proposed by the Commission in its Communication,

1. Welcomes the Commission follow-up Communication, but is of the opinion that the actions proposed must be adjusted and made more specific on a number of points;

2. Stresses that cross-border commercial communications must be based on mutual recognition; emphasises that mutual recognition as a key principle of the Internal Market must be rigorously applied to all cross-border commercial communications within the EU and that non-application of the country of origin principle can only be justified if the restriction in question is proportionate and non-discriminatory;

3. Agrees that whenever national sensitivities are too divergent for mutual recognition to apply, the issue should wherever possible be addressed by self-regulation; therefore asks the European Advertising and Standard Alliance (EASA) to establish and manage a database on self-regulatory codes;

4. Supports, in principle, the proposed proportionality assessment methodology which for the first time provides for a consistent set of criteria against which the compatibility of national and European regulatory measures with the EC Treaty can be assessed;

5. Notes the addition of a criterion to the methodology reflecting a recognition of cultural and social differences in the Member States but considers that this should not be used to justify existing or new restrictions on cross-border commercial communications, points out that Member States seeking to implement restrictions on the basis of cultural or social specificity must prove that it is a measure invoked in the general interest and that the measure is proportionate to its objective; stresses again that the risk of renationalisation must be prevented;

6. Stresses the need for mandatory application of the methodology;

7. Calls on the Commission to apply the methodology automatically to all pending and new infringement cases and not only 'where appropriate¨ as described in the Communication;

8. Calls on the Member States to subject any new measures in the commercial communications area to the proportionality assessment prior to adoption;

9. Calls on the Commission to discuss infringement cases at least every three months instead of every six months;

10. Furthermore, asks the Commission to propose mandatory time limits with the aim of reaching a decision to refer cases brought under Article 169 to the European Court of Justice within 12 months as from the conclusion of the 'pre 169 phase¨ - in which the Commission must apply the methodology to assess whether a formal Article 169 infringement procedure will be initiated and which should be limited to 6 months after the date of registration of a complaint;

11. Stresses that, should the Commission fail to reach a decision within the time limits set for it in the various stages in the infringement procedure, a possibility should be provided for the case to be referred to the Court of First Instance;

12. Calls on the Commission to make the complete legal arguments on specific cases known to the complainant and to provide for a possibility for the complainant to challenge this opinion before a final decision is taken on whether to formally pursue a complaint;

13. Suggests that a working group under the auspices of its Legal Affairs Committee be established to monitor closely progress made at the Commission's infringement meetings and to give opinions on certain cases;

14. Calls on the Commission to establish a register of complaints, accessible to interested parties and available from the Internet, which contains all complaints registered with the Commission - subject to the complainant's consent - and all relevant information regarding progress made in the handling of those cases under the infringement procedure - reasons for admissibility etc. -;

15. Insists on its earlier demand that the Expert Group should be representative of all interested parties and that this Group should have a tripartite character, i.e. comprise representatives of Member States, industry and consumer organisations to ensure that industry and consumers can present their positions on issues discussed within the proposed Expert Group;

16. Calls on the Commission to specify more clearly the functions and tasks of the Expert Group, to make sure that pending infringement cases will be discussed within the Expert Group, to guarantee independence and transparency of the debate in the Expert Group, in particular preparation and publication of the agenda, publication of the minutes and minority opinions, and strict observance of time limits;

17. Calls on the Commission to ensure that the Expert Group will meet four times a year and report to the European Parliament every six months and that there will be a full review of the Group every three years;

18. Calls on the Commission to conduct studies on 'sponsoring at schools' and on 'children and tv-advertising', to publish the results as soon as possible and to take the outcome of such studies into account during the next revision of the Television without Frontiers directive;

19. Instructs its President to forward this resolution to the Commission, the Council, the parliaments of the Member States and the industries and consumer organisations concerned.