COMMON POSITION (EC) No 60/96 adopted by the Council on 27 September 1996 with a view to adopting Directive 96/. . ./EC of the European Parliament and of the Council, of . . ., on consumer protection in the indication of the prices of products offered to consumers (96/C 333/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 129a (2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

(1) Whereas consumers must be guaranteed a high level of protection; whereas the Community should contribute thereto by specific action which supports and supplements the policy pursued by the Member States regarding adequate information of consumers on the prices of products offered to them;

(2) Whereas the Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy (4) and the Council Resolution of 19 May 1981 on a second programme of the European Economic Community for a consumer protection and information policy (5) provide for the establishment of common principles for indicating prices;

(3) Whereas these principles have been established by Directive 79/581/EEC (6) and Directive 88/314/EEC (7) concerning the indication of prices of certain foodstuffs and non-food products;

(4) Whereas the link between the indication of the unit price of products and their pre-packaging in pre-established quantities or capacities corresponding to the values of the ranges adopted at Community level has proved overly complex to apply; whereas it is thus necessary to abandon this link in favour of a new, simplified mechanism and in the interest of the consumer, without prejudice to the rules governing packaging standardization;

(5) Whereas the obligation to indicate the selling price and the unit price contributes substantially to improving consumer information notably at the moment of purchasing, as this is the easiest way to enable consumers to evaluate and compare the prise of products in an optimum manner and hence to make informed choices on the basis of simple comparisons;

(6) Whereas, therefore, there should be a general obligation to indicate both the selling price and the unit for all products except for products sold in bulk, where the selling price cannot be determined until the consumer indicates how much of the product is required;

(7) Whereas Member States may decide not to apply the abovementioned obligation to products supplied in the course of the provision of a service and for sales by auction and sales of works of art and antiques;

(8) Whereas it is necessary to take into account the fact that certain products are customarily sold in quantities different from one kilogram, one litre, one metre, one square metre or cubic metre; whereas it is thus appropriate to allow Member States to authorize that the unit price refer to a decimal or submultiple of those quantities or to a different single unit of quantity, taking into account the nature of the product and the quantities in which it is customarily sold in the Member State concerned;

(9) Whereas the obligation to indicate the unit price may entail an excessive burden for certain small retail businesses under certain circumstances and whereas Member States should therefore be allowed to refrain from applying this obligation in such cases;

(10) Whereas Member States should also remain free to waive the obligation to indicate the unit price in the case of products for which such price indication would not be significant or would be liable to cause confusion, for instance when indication of the quantity is not relevant for price comparison purposes, or when different products are marketed in the same packaging;

(11) Whereas in the case of non-food products, Member States, with a view to facilitating application of the mechanism implemented, are free to draw up a list of products or categories of products for which the obligation to indicate the unit price remains applicable;

(12) Whereas Community-level rules can ensure homogenous and transparent information that will benefit all consumers in the context of the internal market; whereas the new, simplified approach is both necessary and sufficient to achieve this objective;

(13) Whereas particular attention should be paid to small retail businesses; whereas, to this end, the Commission should, in its report on the application of this Directive to be presented no later than five years after publication thereof in the Official Journal of the European Communities, take particular account of the experience gleaned in the application of this Directive by small retail businesses, inter alia regarding trends and technological development in selling methods,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to stipulate the indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices.

Article 2

For the purposes of this Directive:

(a) selling price shall mean the price for a unit of the product or a given quantity of the product;

(b) unit price shall mean the price for one kilogram, one litre, one metre, one square metre or cubic metre of the product;

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.

Article 3

1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 7.

2. Member States may decide not to apply paragraph 1 to:

- products supplied in the course of the provision of a service,

- sales by auction and sales of works of art and antiques.

3. For products sold in bulk, only the unit price must be indicated.

4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 7.

Article 4

1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible.

2. The selling price and the unit price shall relate to the final price of the product under the conditions laid down by the Member States.

3. The unit price shall refer to a quantity declared in accordance with national and Community provisions.

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.

Article 5

Member States shall lay down detailed rules (e. g. marking or labelling) for indicating prices.

Article 6

Member States may stipulate that the unit price shall refer to a decimal multiple or submultiple of the quantities referred to in Article 2 (b) or to a single unit of quantity which is different from those referred to in Article 2 (b), taking into account the nature of the product and the quantities in which it is customarily sold in the Member State concerned.

Article 7

1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be significant because of the products' nature or purpose or would be liable to create confusion.

2. Member States may waive the obligation to indicate the unit price of products for which indication of length, mass, surface or volume is not required by national or Community provisions. This applies in particular to products sold by individual item or singly.

3. With a view to implementing paragraphs 1 and 2, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.

Article 8

Member States may provide that the obligation to indicate the unit price of products other than those sold in bulk, which are sold in certain small retail businesses, shall not apply, subject to Article 13, if the obligation to indicate the unit price would constitute an excessive burden for these businesses because of the number of products on sale, the sales area, the nature of the place of sale, specific conditions of sale where the product is not directly accessible for the consumer or certain forms of business, such as certain types of itinerant trade.

Article 9

Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive, and shall take all necessary measures to ensure that these are enforced. These penalties must be effective, proportionate and dissuasive.

Article 10

1. The transition period of nine years mentioned in Article 1 of Directive 95/58/EC of the European Parliament and of the Council of 29 November 1995 amending Directive 79/581/EEC on consumer protection in the indication of the prices of foodstuffs and Directive 88/314/EEC on consumer protection in the indication of the prices of non-food products (1) shall be extended until the date referred to in Article 12 (1) of this Directive.

2. Directives 79/581/EEC and 88/314/EEC shall be repealed with effect from the date referred to in Article 12 (1) of this Directive.

Article 11

This Directive shall not prevent Member States from adopting or maintaining provisions which are more favourable as regards consumer information and comparison of prices, without prejudice to their obligations under the Treaty.

Article 12

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than . . . (*). They shall forthwith inform the Commission thereof. The provisions adopted shall be applicable as of that date.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by Member States.

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

Article 13

The Commission shall, not more than three years after the date referred to in Article 12 (1), submit to the European Parliament and the Council a comprehensive report on the application of this Directive, in particular on the application of Article 8, accompanied, if appropriate, by a proposal.

The European Parliament and the Council shall, on this basis, re-examine the provisions of Article 8.

Article 14

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 15

This Directive is addressed to the Member States.

Done at Brussels, . . .

For the European Parliament The President For the Council The President

(1) OJ No C 260, 5. 10. 1995, p. 5.

(2) OJ No C 82, 19. 3. 1996, p. 32.

(3) Opinion of the European Parliament of 18 April 1996 (OJ No C 141, 13. 5. 1996, p. 191), Council common position of 27 September 1996 (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No C 92, 25. 4. 1975, p. 2.

(5) OJ No C 133, 3. 6. 1981, p. 2.

(6) OJ No L 158, 26. 6. 1979, p. 19. Directive as last amended by Directive 95/58/EC (OJ No L 299, 12. 12. 1995, p. 11).

(7) OJ No L 142, 9. 6. 1988, p. 19. Directive as last amended by Directive 95/58/EC (OJ No L 299, 12. 12. 1995, p. 11).

(1) OJ No L 299, 12. 12. 1995, p. 11.

(*) 24 months following the date of publication in the Official Journal.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 17 July 1995, the Commission sent the Council a proposal, based on Article 129a of the EC Treaty, for a European Parliament and Council Directive on consumer protection in the indication of the prices of products offered to consumers.

2. The European Parliament and the Economic and Social Committee delivered their opinions on 18 April 1996 and 20 December 1995, respectively.

3. On 24 June 1996, the Commission forwarded an amended proposal to the Council.

4. On 27 September 1996, the Council adopted its common position in accordance with the procedure laid down in Article 189b of the Treaty.

II. OBJECTIVE

The proposal is designed to replace with a simple system the mechanism for indicating the prices of products introduced by Directive 79/581/EEC for foodstuffs and Directive 88/314/EEC for non-food products, the application of which has proved very complex for Member States and has been subject to a transitional period.

The transitional period of seven years has been prolonged to nine years, i. e. until 6 June 1997, by Directive 95/58/EC.

The new simplified system, which abandons the link between the indication of prices and the pre-packing of products in preestablished quantities or capacities, foresees the general obligation to indicate the selling price and the unit price in order to improve substantially the information of consumers.

According to the proposal, some forms of sale are, or may be, excluded and the indication of the unit price may be waived by Member States where this indication would not be meaningful; it may be postponed for six years under certain conditions in the case of certain small retail businesses.

III. ANALYSIS OF THE COMMON POSITION (The references concern the text of the amended proposal)

Article 1 The words 'wherever such comparison is relevant` have been dropped for the sake of clarity, as Article 3 (2) of the common position establishes possible exemptions and as Article 7 (1) (ex Article 6) describes the cases in which the obligation to indicate the unit price may be waived by Member States.

Article 2 The Council preferred to keep Article 4 (2) regarding the final price.

In point (c) the term 'measured` covers also the weighing of a product.

The question of quantities other than those mentioned in point (b) is addressed in the new Article 6.

Article 3

The Council considered it more appropriate to deal with exemptions in this Article only and also to leave it to Member States to apply or not to apply such exemptions.

The Council preferred in paragraph 2 to:

- refer, as in paragraph 1, both to the selling and the unit price,

- retain a general clause in the first indent instead of a list of concrete cases,

- not expressly exempt itinerant traders, products sold on means of transport and products sold in vending machines but rather to leave these as a matter for individual Member States, having regard to the provisions of Articles 7 and 8 (ex 6 and ex 7),

- include sales by auction and sales of works of art and antiques, as for instance in some Member States the indication of an estimated price for sales in auctions is foreseen.

As regards private sales, the Directive would not apply to them, given the wording of Article 1 ('products offered by traders to consumers`) and the definition of 'traders` in Article 2.

One delegation considered that it would not be in contradiction of Article 3 not to indicate the price of precious jewellery. It considered furthermore that Member States should have the possibility of not introducing the price indication for second-hand goods and that this issue should be re-examined at the second reading.

In paragraph 4 the Council adopted the solution suggested by Parliament regarding advertising.

Article 4

For paragraph 2, see comments on Article 2.

In paragraph 3 a text on the drained net weight was added for reasons of clarity and simplification.

Article 5 and new Article 6

The Council preferred to make it clear in Article 5 that the rules mentioned refer to practical aspects, and to add a new Article 6 regarding quantities different from those mentioned in Article 2 (b).

The decimal multiple or submultiple mean e. g. 100 kg (construction material), or 100 gr (spices), while a single unit of quantity means e. g. 0,75 l for wine or 450 gr for jam or draught beer sold by the pint.

Article 7 (ex Article 6)

In paragraph 1 the Council preferred the term 'significant` to the term 'meaningful` which in some languages is more correct.

The use of the conditional 'would not be` instead of 'is not` appeared more logical and has no impact on the substance.

The formula 'liable to create confusion` was regarded as useful and was therefore kept to cover, for instance, products containing more than one product (toilet articles).

The Council also preferred to keep paragraph 2.

In paragraph 3 the Council preferred to keep the optional clause.

Article 8 (ex Article 7) and Article 13 (new)

As a compromise between several positions, two of them quite opposite in nature (immediate application of the Directive to small retail businesses/permanent exemption from the Directive), the Council agreed on an optional exemption subject to a comprehensive Commission report, three years after the bringing into force of the Directive, on the application of the Directive, in particular of this Article 8, accompanied if appropriate by a proposal, and to a reexamination on this basis of Article 8 by Parliament and Council.

As for the conditions regarding the non-application to small retail businesses, the Council found it more logical to consider all elements in question (number of products sold, etc.) as constituting, or contributing to, an excessive burden. Among those, it attached importance also to specific conditions of sale where the product is not directly accessible to the consumer. Itinerant trade was kept as an example of certain forms of business.

Article 10 (ex 9)

The Council retained the solution proposed by Parliament.

Article 11 (new)

The Council, in accordance with preceding Directives, inserted a minimal clause.

Article 12 (ex 10)

The Council agreed on the same deadline as suggested by Parliament.

Preamble

The Council has adapted and simplified the whereas-clauses. It did not insert recitals which do not correspond to the Articles.

As regards the recitals suggested by Parliament and accepted by the Commission, the Council did not take account of recitals Nos 1, 8 and 20. The modification of recital 2 is covered at least in part by recitals Nos 5 and 12.

Amendments suggested by Parliament but not accepted by the Commission The Council did not take account of these amendments.