A4-0314/96

Decision on the common position adopted by the Council with a view to the adoption of a European Parliament and Council Directive amending Directive 84/450/EEC on misleading advertising so as to include comparative advertising (C4-0325/96 - 00/0343(COD))

(Codecision procedure: second reading)

The European Parliament,

- having regard to the common position of the Council, C4-0325/96 - 00/0343(COD) ((OJ C 219, 27.7.1996, p. 14.)),

- having regard to its opinion at first reading ((OJ C 337, 21.12.1992, p. 137.)) on the Commission proposal to Parliament and the Council, COM(91)0147 ((OJ C 180, 11.7.1991, p. 14.)),

- having regard to the amended Commission proposal, COM(94)0151 ((OJ C 136, 19.5.1994, p. 4)),

- having regard to Article 189b(2) of the EC Treaty,

- having regard to Rule 72 of its Rules of Procedure,

- having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Consumer Protection (A4-0314/96),

1. Amends the common position as follows;

2. Calls on the Commission to support Parliament's amendments in the opinion it is required to deliver pursuant to Article 189b(2)(d) of the EC Treaty;

3. Calls on the Council to approve all Parliament's amendments, amend its common position accordingly and definitively adopt the act;

4. Instructs its President to forward this decision to the Council and the Commission.

(Amendment 1)

Recital 2

>Original text>

(2) Whereas the completion of the internal market will mean an ever wider range of 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 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;

>Text following EP vote>

(2) Whereas the completion of the internal market will mean an ever wider range of 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 Union, 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 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;

(Amendment 2)

Recital 5

>Original text>

(5) Whereas point 3(d) of the Annex to the Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community 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 advantages;

>Text following EP vote>

(5) Whereas point 3(d) of the Annex to the Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community 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 essential, verifiable and representative features and is not misleading, may be a legitimate means of informing consumers of their advantages;

(Amendment 3)

Recital 9a (new)

>Text following EP vote>

(9a) Whereas comparative tests carried out by a recognized neutral body can form a useful basis for comparative advertising; whereas, provided permitted use is made of these results, the advertisers themselves should bear responsibility for this use;

(Amendment 4)

Recital 10

>Original text>

(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;

>Text following EP vote>

Deleted

(Amendment 6)

Recital 15

>Original text>

(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;

>Text following EP vote>

(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 the sixteenth recital of the Directive already states that voluntary control by self- regulatory bodies to eliminate misleading advertising may obviate recourse to administrative or judicial action and ought therefore to be encouraged; whereas Article 6 applies to unpermitted comparative advertising in the same way;

(Amendment 20)

Recital 20

>Original text>

(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;

>Text following EP vote>

(20) Whereas Member States shall not be obliged to permit comparative 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 targets 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;

(Amendment 8)

ARTICLE 1(4)

Article 3a(1)(c) (Directive 84/450/EEC)

>Original text>

(c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

>Text following EP vote>

(c) it objectively compares one or more essential, verifiable and representative features of those goods and services, which may include price;

(Amendment 9)

ARTICLE 1(4)

Article 3a(1)(e) (Directive 84/450/EEC)

>Original text>

(e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services or activities of a competitor;

>Text following EP vote>

(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;

(Amendment 12)

ARTICLE 1(4)

Article 3a(1)(ga) (new) (Directive 84/450/EEC)

>Text following EP vote>

(ga) the advertiser has the justification and substantiation for the comparative material in advance of placing the advertisement, so that such justification and substantiation can be produced within 48 hours to the competent authority;

(Amendment 13)

ARTICLE 1(4)

Article 3a(1)(gb) (new) (Directive 84/450/EEC)

>Text following EP vote>

(gb) it does not present goods or services as imitations or replicas of goods or services bearing a registered trade mark or trade name;

(Amendment 21)

ARTICLE 1(4)

Article 3a(1) (gc) (new) (Directive 24/450/EEC)

>Text following EP vote>

(gc) where professional services are concerned it does not clash with codes of ethics which comply with the provisions of the Treaty and are laid down in the exercise of the self-regulatory power granted under the general legal system;

(Amendment 15)

ARTICLE 1(4)

Article 3a(2a) (new) (Directive 84/450/EEC)

>Text following EP vote>

2a. Reference to or reproduction of the results of comparative tests on goods or services carried out by third parties shall be permitted in advertising only if the person who has carried out the tests gives his express consent. In such cases the advertiser shall accept responsibility for the test as if it had been performed by himself or under his direction.

(Amendment 16)

ARTICLE 1(5)

Article 4(1), first subparagraph (Directive 84/450/EEC)

>Original text>

1. Member States shall ensure that adequate 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.

>Text following EP vote>

1. Member States shall ensure that adequate and effective means exist to combat 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.

(Amendment 17)

ARTICLE 1(5)

Article 4(1), second subparagraph a (new) (Directive 84/450/EEC)

>Text following EP vote>

It shall be for each Member State to decide which of these facilities shall be available and whether to enable the courts or administrative authorities to require prior recourse to other established means of dealing with complaints, including those referred to in Article 5.

(Amendment 18)

ARTICLE 1(7)

Article 5 (Directive 84/450/EEC)

>Original text>

This Directive does not exclude the voluntary 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.

>Text following EP vote>

This Directive does not exclude, but on the contrary encourages, the voluntary 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.

(Amendment 19)

ARTICLE 1(7a) (new)

Article 5a (new) (Directive 84/450/EEC)

>Text following EP vote>

7a. The following Article 5a is inserted:

'Article 5a

The voluntary control of misleading or comparative advertising, where applicable, shall be carried out pursuant to the principle of subsidiarity by the national self-regulatory bodies; a European self-regulatory umbrella body shall coordinate this work and deal with cross-border complaints.¨