COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 13.13.1996 
COM(96) 700 final - COD 343 
OPINION OF THE COMMISSION 
pursuant to Article 189 b (2) (d) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the 
proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
AMENDING DIRECTIVE 84/450/EEC 
CONCERNING MISLEADING ADVERTISING 
SO AS TO INCLUDE COMPARATIVE ADVERTISING 
AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 189 a (2) of the EC Treaty 

EXPLANATORY MEMORANDUM 
I THE BACKGROUND 
On 19 March 1996 the Council of the European Union established a common position 
with a view to the adoption of a Directive amending Directive 84/450/EEC concerning 
misleading advertising so as to include comparative advertising. 
On 23 October 1996 the European Parliament adopted at its second reading, in the 
framework of the co-decision procedure, its opinion on the common position (rapporteur: 
Mrs Oomen-Ruijten). This opinion contains 16 amendments, eight of which were 
accepted by the Commission at its plenary meeting. 
Pursuant to Article 189b(2)(d) of the Treaty, the Commission must deliver an opinion to 
the Council concerning Parliament's amendments. In this particular case the opinion alters 
the Commission's proposal as provided for in Article 189a(2) of the Treaty. 
H THE COMMISSION'S POSITION ON THE AMENDMENTS 
At its plenary meeting the Commission agreed to accept amendments 1, 2, 4, 8, 9, 16, 20 
and 21. However the Commission cannot accept amendments 3, 6, 12, 13, 15, 17, 18 and 
19, for the following reasons: 
Amendments 3 and 15 concern comparative tests. At the Edinburgh European Council 
in 1992, the Commission undertook to revise a series of proposals - including the 
proposal on comparative advertising - so as to remove certain aspects that were 
incompatible with the principle of proportionality In the case in point the Commission 
considered that the provisions on comparative tests (which featured in the initial proposal) 
could be withdrawn because they were not strictly necessary in order to achieve the 
proposal's objectives. 
Amendments 6, 18 and 19 concern voluntary regulatory systems. The creation of a 
"European self-regulatory umbrella body" (Amendment 19) is unacceptable because of 
the potential financial implications for the Community budget. The role of the national 
self-regulatory bodies (Amendments 6 and 18) is already given due recognition in 
Article 5 of Directive 84/450/EEC and Amendment 18 could lead to distortions not only 
with regard to comparative advertising but also with regard to misleading advertising 
(which is also covered by the same~provision). 
Amendments 12 and 13 have to be rejected because of the excessive and unreasonable 
burden they would place on advertisers, bearing in mind the other conditions already 
contained in the text of the common position (Article 3a). 
Amendment 17 modifies the first paragraph of Article 4 of Directive 84/450/EEC. If 
accepted, its effect would be to allow Member States to "require prior recourse to other 
established means of dealing with complaints, including those referred to in Article 5" 
(self-regulatory procedures). Such an amendment could prevent or at any rate delay 
consumer access to ordinary justice, and might well be incompatible with Article 6 of the 
European Convention on Human Rights. 
m AMENDED PROPOSAL 
In view of the above, and in compliance with the provisions governing the co-decision 
procedure, the proposal has been amended by the Commission so as to include 
Amendments 1, 2, 4, 8, 9, 16, 20 and 21 of the European Parliament. 
AMENDED PROPOSAL FOR A EUROPEAN PARLIAMENT 
AND COUNCIL DIRECTIVE 
AMENDING DIRECTIVE 84/450/EEC 
CONCERNING MISLEADING ADVERTISING 
SO AS TO INCLUDE COMPARATIVE ADVERTISING 
COMMON POSITION OF THE COUNCIL AMENDED PROPOSAL 
THE EUROPEAN PARLIAMENT AND 
THE COUNCIL OF THE EUROPEAN 
UNION, 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 Treaty establishing 
the European Community, and in 
particular Article 100a thereof, 
Having regard to the proposal from the 
Commission , Having regard to the proposal from the 
Commission, 
Having regard to the opinion of the Economic 
and Social Committee , 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 (3), Acting in accordance with the procedure 
referred to in Article 189b of the Treaty, 
(1) Whereas one of the Community's main 
aims is to complete the internal market; 
whereas measures must be adopted to ensure 
the smooth running of the said market; 
whereas the market comprises an area which 
has no internal frontiers and in which goods, 
persons, services and capital can move freely; Unchanged 
(2) Whereas the completion of the internal (2) Whereas the completion of the internal 
market will mean an ever wider range of market will mean an ever wider range of 
1. OJNoC 180, 11.7.1991, p. 14. 
2. OJ No C 49, 24.2.1992, p. 35. 
A 
choice; whereas, given that consumers can and 
must make the best possible use ofthe internal 
market, and that advertising is a very 
important means of creating genuine outlets 
for all goods and services throughout the 
Community, the basic provisions governing 
the form and content of comparative 
advertising should be uniform and the 
conditions of the use of comparative 
advertising in the Member States should be 
harmonized; whereas this will help 
demonstrate the merits of the various 
comparable products; whereas comparative 
advertising can also stimulate competition 
between suppliers of goods and services to the 
consumer's advantage; choice; whereas given that consumers can 
and must make the best possible use of the 
internal market, and that advertising is a 
very important means of creating genuine 
outlets for all goods and services 
throughout the European Community, the 
basic provisions governing the form and 
content of comparative advertising should 
be uniform and the conditions ofthe use of 
comparative advertising in the Member 
States should be harmonised; whereas if 
these conditions are met this will help 
demonstrate objectively the merits of the 
various comparable products; whereas 
comparative advertising can also stimulate 
competition between suppliers of goods 
and services to the consumer's advantage; 
(3) Whereas the laws, regulations and 
administrative provisions of the individual 
Member States concerning comparative 
advertising differ widely; whereas advertising 
reaches beyond the frontiers and is received on 
the territory of other Member States; whereas 
the acceptance or non-acceptance of 
comparative advertising according to the 
various national laws may constitute an 
obstacle to the free movement of goods and 
services and create distortions of competition; 
whereas, in particular, firms may be exposed 
to forms of advertising developed by 
competitors to which they cannot reply in 
equal measure; whereas the freedom to 
provide services relating to comparative 
advertising should be assured; whereas the 
Community is called on to remedy this 
situation; Unchanged 
(4) Whereas the sixth recital of Council 
Directive 84/450/EEC of 10 September 1984 
relating to the approximation of laws, 
regulations and administrative provisions of 
the Member States concerning misleading 
advertising" states that, after the harmonization Unchanged 
3. OJNoL250, 19.9.1984, p. 17. 
of national provisions against misleading 
advertising, 'at a second stage . . ., as far as 
necessary, comparative advertising should be 
dealt with, on the basis of appropriate 
Commission proposals' ; 
(5) Whereas point 3 (d) of the Annex to the 
Council resolution of 14 April 1975 on a 
preliminary programme of the European 
Economic Committee for a consumer 
protection and information policy includes 
the right to information among the basic rights 
of consumers; whereas this right is confirmed 
by the Council Resolution of 19 May 1981 on 
a second programme of the European 
Economic Community for a consumer 
protection and information policy , point 40 of 
the Annex, which deals specifically with 
consumer information; whereas comparative 
advertising, when it compares relevant, 
verifiable and representative features and is 
not misleading, is a legitimate means of 
informing consumers of their advantage; 
(6) Whereas it is desirable to provide a broad 
concept of comparative advertising to cover all 
modalities of comparative advertising; (5) Whereas point 3(d) ofthe Annex to the 
Council resolution of 14 April 1975 on a 
preliminary programme of the European 
Economic Committee for a consumer 
protection and information policy4 
includes the right to information among 
the basic rights of consumers; whereas this 
right is confirmed by the Council 
Resolution of 19 May 1981 on a second 
programme of the European Economic 
Community for a consumer protection and 
information policy , point 40 of the 
Annex, which deals specifically with 
consumer information; whereas 
comparative advertising, when it compares 
essential, verifiable and representative 
features and is not misleading, may be a 
legitimate means of informing consumers 
of their advantage; 
Unchanged 
4. OJ No C 92, 25.4.1975, p. 1, 
5. OJNoC 133, 3.6.1981, p. 1. 
(7) Whereas conditions of permitted 
comparative advertising, as far as the 
comparison is concerned, should be 
established in order to determine which 
practices relating to comparative advertising 
may distort competition, cause damage to 
competitors and have an adverse effect on 
consumer choice; whereas such conditions of 
permitted advertising should include criteria of 
objective comparison of the features of goods 
and services; Unchanged 
(8) Whereas the comparison of the price only 
of goods and services should be possible if this 
comparison respects certain conditions, in 
particular that it shall not be misleading; Unchanged 
(9) Whereas, in order to prevent comparative 
advertising being used in an anti-competitive 
and unfair manner, only comparisons between 
competing goods and services meeting the 
same needs or intended for the same purpose 
should be permitted; Unchanged 
(10) Whereas the conditions of comparative 
advertising should be cumulative and 
respected in their entirety; whereas this shall 
not prevent Member States from defining 
modalities of implementation for each of the 
conditions, in order to find the appropriate 
solution in each case; Deleted 
(11) Whereas these conditions should include, 
in particular, consideration of the provisions 
resulting from Council Regulation (EEC) No 
2081/92 of 14 July 1992 on the protection of 
geographical indications and designations of 
origin for agricultural products and 
foodstuffs , arid in particular Article 13 
thereof, and of the other Community 
provisions adopted in the agricultural sphere; Unchanged 
(12) Whereas Article 5 of First Council Unchanged 
6. OJNoL208, 24.7.1992, p. 1. 
Directive 89/104 of 21 December 1988 to 
approximate the laws of the Member States 
relating to trade marks confers exclusive 
rights on the proprietor of a registered trade 
mark, including the right to prevent all third 
parties from using, in the course of trade, any 
sign which is identical with, or similar to, the 
trade mark in relation to identical goods or 
services or even, where appropriate, other 
goods; 
(13) Whereas it may, however, be 
indispensable, in order to make comparative 
advertising effective, to identify the goods or 
services of a competitor, making reference to a 
trade mark or trade name of which the latter is 
the proprietor; Unchanged 
(14) Whereas such use of another's trade mark, 
trade name or other distinguishing marks does 
not breach this exclusive right in cases where 
it complies with the conditions laid down by 
this Directive, the intended target being solely 
to distinguish between them and thus to 
highlight differences objectively; Unchanged 
(15) Whereas provisions should be made for 
the legal and/or administrative means of 
redress • mentioned in Articles 4 and 5 of 
Directive 84/450/EEC to be available to 
control comparative advertising which fails to 
meet the conditions laid down by this 
Directive; whereas Article 6 applies to 
unpermitted comparative advertising in the 
same way; Unchanged 
(16) Whereas Article 7 of Directive 
84/450/EEC allowing Member States to retain 
or adopt provisions with a view to ensuring 
more extensive protection for consumers, 
persons carrying on a trade, business, craft or Unchanged 
1. OJ No L40, 11.2.1989, p. 1. Directive last amended by Decision 92/10/EEC 
(OJN0L6, 11.1.1992, p. 35.) 
profession, and the general public, should not 
apply to comparative advertising, given that 
the objective of amending the said Directive is 
to establish conditions under which 
comparative advertising is permitted; 
(17) Whereas a comparison which presents 
goods or services as an imitation or a replica 
of goods or services bearing a registered trade 
mark shall not be considered to fulfil the 
conditions to be met by permitted comparative 
advertising; 
(18) Whereas this Directive in no way affects 
Community provisions on advertising for 
specific products and/or services or restrictions 
or prohibitions on advertising in particular 
media; Unchanged 
Unchanged 
(19) Whereas if a Member State, in 
compliance with the provisions of the Treaty, 
prohibits advertising regarding certain goods 
or services, this ban may, whether it is 
imposed directly or by a body or organization 
responsible under the law of that Member 
State for regulating the exercise of a 
commercial, industrial, craft or professional 
activity, be extended to comparative 
advertising; 
(20) Whereas Member States shall not be 
obliged to permit comparative advertising for 
goods or services on which they maintain or 
introduce bans, including bans as regards 
marketing methods or advertising which 
targets vulnerable consumer groups; Unchanged 
(20) Whereas Member States shall not be 
obliged to permit advertising for goods or 
services on which they maintain or 
introduce bans which comply with the 
provisions of the Treaty, including bans as 
regards marketing methods or advertising 
which target vulnerable consumer groups 
and bans based on the codes of ethics laid 
down by some professions in the exercise 
of the self-regulating powers granted 
under the general legal system; 
(21) Whereas regulating comparative 
advertising is, under the conditions set out in 
this Directive, necessary for the smooth 
running of the internal market and~*whereas 
action at Community level is required; Unchanged 
whereas the adoption of a Directive is the ' 
appropriate instrument because it lays down 
uniform general principles while allowing the 
Member States to choose the form and 
appropriate method by which to attain these 
objectives; whereas it is in accordance with the 
principle of subsidiarity. 
HAVE ADOPTED THIS DIRECTIVE: 
Article 1 
Directive 84/450/EEC is hereby amended as Unchanged 
follows: 
1. the title shall be replaced by the following: Unchanged 
'Council Directive of 10 September 1984 Unchanged 
concerning misleading and comparative 
advertising" ; 
2. Article 1 shall be replaced by the following: Unchanged 
'Article 1 Unchanged 
The purpose of this Directive is to protect 
consumers, persons carrying on a trade or 
business or practising a craft or profession and -
the interests of the public in general against 
misleading advertising and the unfair 
consequences thereof and to lay down the 
conditions under which comparative 
advertising is permitted/; 
3. the following point shall be inserted in Unchanged 
Article 2: 
'2 (a): "comparative advertising" means any Unchanged. 
advertising which explicitly or by implication 
identifies a competitor or goods or services 
offered by a competitor;' ; 
4. the following Article shall be added: Unchanged 
'Article 3 a 
1. Comparative advertising shall, as far as the Unchanged 
comparison is concerned, be permitted when 
the following conditions are met: 
(a) it is not misleading according to Articles 2 
(2), 3 and 7(1); 
(b) it compares goods or services meeting the 
same needs or intended for the same purpose; 
(c) it objectively compares one or more 
material, relevant verifiable and representative 
features of those goods and services, which 
may include price; 
(d) it does not create confusion in the market 
place between the advertiser and a competitor 
or between the advertiser's trade marks, trade 
names, other distinguishing marks, goods or 
services and those of a competitor; 
(e) it does not discredit or denigrate the trade 
marks, trade names, other distinguishing 
marks, goods, services or activities of a 
competitor; Unchanged 
Unchanged 
(c) it objectively compares one or 
more essentia^ verifiable and 
representative features of those 
goods and services, which may 
include price; 
Unchanged 
(e) it does not discredit or denigrate 
the trade marks, trade names, other 
distinguishing marks, goods, 
services or activities, personal 
qualities or circumstances of a 
competitor; 
(f) for products with designation of origin, it - Unchanged 
relates in each case to products with the same 
designation; « 
(g) it does not take unfair advantage of the Unchanged 
reputation of a trade mark, trade name or other 
distinguishing marks of a competitor or of the 
designation of origin of competing products. 
2. Any comparison referring to a special offer 
shall indicate in a clear and unequivocal way (h) in the case of professional services, 
it does not conflict with codes of 
conduct which comply with the 
provisions of the Treaty and have 
been laid down in the exercise of 
the self-regulating powers granted 
under the general legal system. 
Unchanged 
the date on which the offer ends or, where 
appropriate, that the special offer is subject to 
the availability of the goods and services, and, 
where the special offer has not yet begun, the 
date ofthe start ofthe period during which the 
special price or other specific conditions shall 
apply/; 
5. the first and second subparagraphs of Unchanged 
Article 4 (1) shall be replaced by the 
following: 
'1. Member States shall ensure that adequate Unchanged 
and effective means exist for the control of 
misleading advertising and for the compliance 
with the provisions on comparative advertising 
in the interests of consumers as well as 
competitors and the general public. 
Such means shall include legal provisions Unchanged 
under which persons or organizations regarded 
under national law as having a legitimate 
interest in prohibiting misleading advertising 
or regulating comparative advertising may: 
(a) take legal action against such advertising; Unchanged 
and/or 
(b) bring such advertising before an • Unchanged 
administrative authority competent either to 
decide on complaints or to initiate appropriate 
legal proceedings/; 
6. Article 4 (2) is hereby amended as follows: Unchanged 
(a) the indents in the first subparagraph shall Unchanged 
be replaced by the following: 
'- to order the cessation of, or to institute Unchanged 
appropriate legal proceedings for an order for 
the cessation of, misleading or unpermitted 
comparative advertising, or 
- if the misleading or unpermitted comparative Unchanged 
advertising has not yet been published but 
publication is imminent, to order the 
prohibition of, or to institute appropriate legal 
proceedings for an order for the prohibition of, 
such publication/ ; 
(b) the introductory wording to the third 
subparagraph shall be replaced by the 
following: 
'Furthermore, Member States may confer upon 
the courts or administrative authorities powers 
enabling them, with a view to eliminating the 
continuing effects of misleading or 
unpermitted comparative advertising, the 
cessation of which has been ordered by a final 
decision/; Unchanged 
Unchanged 
7. Article 5 shall be replaced by the following: 
'Article 5 Unchanged 
This Directive does not exclude the voluntary Unchanged 
control of misleading or comparative 
advertising by self-regulatory bodies and 
recourse to such bodies by the persons or 
organizations referred to in Article 4 if 
proceedings before such bodies are in addition 
to the court or administrative proceedings 
referred to in that Article/ ; 
8. Article 7 shall be replaced by the following: • Unchanged 
'Article 7 
1. This Directive shall not preclude Member 
States from retaining or adopting provisions 
with a view to ensuring more extensive 
protection, with regard to misleading 
advertising, for consumers, persons carrying 
on a trade, business, craft or profession, and 
the general public. 
2. Paragraph 1 shall not apply to comparative 
advertising as far as the comparison is 
concerned. 
3. The provisions of this Directive shall apply 
without prejudice to Community provisions on 
advertising for specific products and/or Unchanged 
Unchanged 
Unchanged 
10 
services or to restrictions or prohibitions on 
advertising in particular media. 
4. The provisions of this Directive conceming 
comparative advertising shall not oblige 
Member States which, in compliance with the 
provisions ofthe Treaty, maintain or introduce 
advertising bans regarding certain goods or 
services, whether imposed directly or by a 
body or organization responsible, under the 
law of the Member States, for regulating the 
exercise of a commercial, industrial, craft or 
professional activity, to permit comparative 
advertising regarding those goods or services. 
Where these bans are limited to particular 
media, the Directive shall apply to the media 
not covered by these bans/. Unchanged 
Article 2 
1. Member States shall bring into force the 
laws, regulations and administrative provisions 
necessary to comply with this Directive at the 
latest 30 months after its publication in the 
Official Journal of the European 
Communities. They shall forthwith inform the 
Commission thereof. Unchanged 
2. When Member States adopt these measures, 
they shall contain a reference to this Directive 
or shall be accompanied by such reference on 
the occasion of their official publication. The 
methods of making such reference shall be 
laid down by Member States. Unchanged 
3. Member States shall communicate to the 
Commission the text ofthe main provisions of 
domestic law which they adopt in the field 
governed by this Directive. Unchanged 
11 
Article 3 
This Directive is addressed to the Member Unchanged 
States. 
Done at.. . 
For the Council 
The President 
12 



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