'•f-é 
Sftg. 
M," COMMISSION OF THE EUROPEAN CORAIUNITIES 
C0MC94) 151 final - COD 343 
Brussels, 21.04.1994 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
Concerning comparative advertising and amending Directive 84/450/EEC 
concerning misleading advertising 
(presented by the Commission pursuant to Article 189 A (2) 
of the EC-Treaty) 
. to 
EXPLANATORY MEMORANDUM 
INTRODUCTION 
Following the opinions delivered by the European Parliament1 and the Economic and 
Social Committee2 on the proposal for a Council Directive concerning comparative 
advertising and amending Council Directive 84/450/EEC concerning misleading 
advertising3, the Commission is called upon to adopt a modified proposal, in so far as it 
intends to accept the proposals and, where necessary, to make other changes to its initial 
proposal. 
Furthermore, as part of the debate on the extent and practical application of the principle 
of subsidiarity, the Commission has included this proposal among those texts which it 
undertook at the Council meeting in Edinburgh to examine in greater depth, with a view 
to withdrawing provisions which would go into excessive detail in relation to the 
objective pursued and to establishing general principles to be given more detailed form 
bv Member States4 
In the case of comparative advertising, the Commission has concluded, following an in-
depth discussion, that the essence of the proposal, namely harmonisation of the 
regulations governing the fairness of comparative advertising, must be maintained and 
that, in principle, a proposal modified in the light of amendments proposed by the 
European Parliament, of the opinion of the Economic and Social Committee and of the 
debates at Council level, may be presented in accordance with Article 189a(2) of the 
TEU. 
1. GROUNDS FOR THE PROPOSAL IN TERMS OF SUBSIDIARITY 
a) What are the objectives of the measure envisaged in relation to the Union's 
obligations? 
Opinion of 18.11.92, PV 38 11 (EP 162.994) 
OJC49. 24.2.1992, p. 35. 
OJC 180, 11.7.1991, p. 14. 
Conclusion of the Presidency. The European Council of Edinburgh, 11/12 December 1992; 
Document SI(92) 1050, section A Annex 2, page 3. 
rl 
R. The objective of the measure is to facilitate the creation and functioning 
of the internal market at a high level of consumer protection by 
approximating laws governing comparative advertising; hence the measure 
will encourage the free movement of advertising services in so far as they 
will be governed by a harmonised regime in all the Member States. 
b) Is the envisaged measure the exclusive competence of the Union or a 
competence shared with the Member States? 
R The harmonisation of Member States' laws governing comparative 
advertising is an exclusive competence of the Union. 
c) What is the Community dimension of the problem? 
R. The current situation in which comparative advertising is authorised in 
certain Member States and banned in others not only creates obstacles to 
the free movement of goods and services but also puts consumers, 
advertisers and publicity workers in certain Member States at a 
disadvantage, and the medium used (press, radio or television) leads to 
substantial distortions in competition. 
d) What is the most effective solution when the Union's instruments are 
compared with those of the-Member States? 
R. Harmonisation of legislation relating to comparative advertising in order 
to ensure that the consumer's right to information is respected and that 
appropriate safeguards are established to avoid disputes between 
advertisers resulting from incompatible legislation. 
e) What is the concrete added value of the Union's envisaged measure and 
what would it cost to do nothing? 
R. Given the entry into effect of the Treaty on European Union, the envisaged 
measure should make it possible to provide European consumers with 
better information, to stimulate competition and to cope with the rapid 
development of new communication techniques. 
To do nothing would deprive consumers of a useful source of information 
in making a rational choice and would create obstacles to the free 
movement of products and services and hence adversely affect free 
competition. 
f) What instruments are at the Union's disposal? 
R. The directive, because it is a question of amending an already existing 
directive. 
g) Are uniform rules necessary or is it enough to have a directive laying 
down general objectives, leaving implementation to the Member States? 
R. A directive is sufficient. 
2. ELEMENTS OF THE INITIAL PROPOSAL CONTAINED IN THE AMENDED PROPOSAL 
The title of the proposal remains unchanged. This also applies to the definition of 
comparative advertising. 
As to the means for controlling advertising (Article 1 (4)), given that such means 
have already been established by all the Member States in accordance with the 
provisions of Directive 84/350/EEC5 and that they are functioning properly, it is 
not considered necessary to amend the text of the initial proposal which extends 
to comparative advertising the scope of the provisions applied to misleading 
advertising. 
Likewise, Article 1 (6) concerning the validity of voluntary control of misleading 
advertising and comparative advertising by independent bodies remains 
unchanged. 
The Commission considers that systems for the voluntary control of advertising 
should be encouraged, as recognised in the sixteenth recital of Directive 
84/450/EEC; the fact that Article 5 of this Directive will also apply to 
comparative advertising is proof that the Commission is continuing to encourage 
such systems, particularly if account is taken of the principles of subsidiarity and 
proportionality; the Commission therefore considers it unnecessary to stress this 
aspect any further in the modified proposal. 
The reversal of the burden of proof established by Article 6 of Directive 
84/450/EEC also applies to comparative advertising. The Commission considers 
that maintaining this principle is fundamental, hence the explicit reference made 
in the new eleventh recital of the modified proposal. 
Finally, it has been agreed that the minimal character of the provisions relating 
to misleading advertising shall not be applicable to provisions governing 
comparative advertising, for the reasons already set out in the explanatory 
memorandum attached to the initial proposal. 
OJL250of 19.9.1984, p. 17. 
3. THE AMENDMENTS INTRODUCED 
Recitals 3, 6 and 11 have been amended in order to bring them into line with the 
Parliament's amendments accepted by the Commission, concerning the conditions 
for authorising comparative advertising; 
The amendments contained in recital 4 are designed to refer specifically to 
obstacles to the principle of free movement and in particular the freedom to 
provide services relating to comparative advertising. 
Recital 12 has been amended because it was considered necessary to emphasise 
the fact that reversal of the burden of proof - one of the mainstays of Directive 
84/450/EEC - also applies to comparative advertising; 
Recital 14 has been amended, at Parliament's request, in order to establish clearly 
the relationship between comparative advertising and the advertising of certain 
specific products or services; 
As regards recital 15, it summarises the elements taken into consideration in order 
to bring the proposal into line with the subsidiarity principle. 
As regards the articles, the amendments concern Article 1 (3) and (7) and Article 
2 
4. COMMENTS ON THE AMENDMENTS 
a) Reducing the scope of the text 
However, it is not simply a question of modifying the text in accordance 
with the usual principles. Under the criteria set out in the document 
submitted to the Edinburgh Council, it was considered necessary to reduce 
the number of subjects covered in the proposal. 
The Commission has observed that the provisions concerning comparative 
tests, which are only indirectly linked to comparative advertising, may be 
completely removed from the text, not because they would be without 
foundation but because they do not appear to be strictly necessary in order 
to arrive at the legislative goal as set out and justified in the initial 
proposal6. 
This partial restructuring of the text involves the deletion of the ninth 
recital and of Article 3a(2) of the initial proposal. Amendments numbers 
COM(91) 147 of 21.6.1991. 
4 and 14 put forward by Parliament and received favourably at the time 
by the Commission are now therefore superfluous. 
The text is therefore completely in accordance with the requirements of the 
principle of subsidiarity (see new fifteenth recital). 
b) The limits of comparative advertising 
As the European Parliament has pointed out, the use of comparative 
advertising must be subject to strict limitations. While ensuring that the 
proposal is not completely stripped of meaning, the Commission has 
therefore, after an in-depth discussion as announced at the Edinburgh 
Council, accepted a number of suggestions from Parliament, reinforcing 
the text to this effect (see annexed tables). In particular, the new wording 
of Article 3a broadens the criteria set out in the initial proposal in order 
to ensure fairness in comparative advertising. The new subparagraph d) has 
been introduced to clarify an aspect which was also raised by the 
Economic and Social Committee: when a comparative reference is made 
to a service, it should relate only to the characteristics of the service itself 
and not to the intellectual qualities of the provider, which cannot be 
subject to comparison. 
A new paragraph 2 has been introduced in Article 3a at the request of 
Parliament, with the content having been specified by the Economic and 
Social Committee in its opinion, if "objective truth" is the guiding 
principle in the formulation and use of a comparative advertisement, this 
must also include the full "actuality" of the statement at the time it is 
disseminated; this applies particularly in the case of products and services 
which are the subject of a special offer or where the offer is of limited 
duration. 
c) Relationship with sectoral advertising 
Both the European Parliament and the Economic and Social Committee 
have stated that they are particularly concerned with problems which might 
arise owing to the existence of specific regulations concerning advertising 
for items such as medicaments, tobacco products or foodstuffs. The 
Commission agrees with the opinion of the two institutions in so far as, in 
areas in which advertising is subject to partial bans or other more stringent 
restrictions, comparative advertising must also be governed by the same 
rules. Article 7 (3) has ben introduced precisely in support of this concept, 
which was already implicit in the initial proposal. 
PARLIAMENT'S OPINION 
Amendment No. Initial proposal Accepted 
by the 
Commission Integrated 
(New numbering) 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
22 
17 
18 
19 Recital No 3 
Recital No 6 
Recital No 9 
Recital No 12 
Recital No 13 
Recital No 14 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.3 
Article 1.6 
Article 1.6 
Article 1.7 Yes 
Yes partly 
Yes partly 
No 
Yes 
No 
No 
Yes 
Yes partly 
No 
Yes 
No 
No 
Yes partly 
No 
Yes 
No 
No 
No 
Yes partly Recital No 2 
Recital No 5 
Recital No 10 
Recital No 13 
Article 1.3 
Article 1.3 
Not integrated 
(subsidiarity) 
Article 1.3 
Article 1.7 
OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE 
Keynotes of the ECS opinion 
2.6 Precise rules governing means of 
controlling advertising Commission's position 
Rejected. Directive 84/450/EEC contains 
adequate provisions. 
2.7 Conformity of comparative advertising Accepted. Article 1.7 
with specific rules on sectoral 
advertising. 
Compliance with EEC standards 
concerning registered trade marks and 
designations of origin. Accepted as regards trade marks (Recitals 
8, 9 and 10). 
As regards designations of origin, the 
Commission maintains its initial proposal 
(Article 1 (2) and (3)). 
2.8 Drafting of a self-regulatory code of 
practice whose framework would be 
defined by Community rules. Rejected. It is not up to the Commission 
to take action in this domain for reasons 
of subsidiarity. It is sufficient to 
encourage voluntary control (Recital 11). 
2.10 Setting up of voluntary bodies 
representing the various interests 
involved. Rejected for reasons of subsidiarity. 
3.2 Comparative advertising to be allowed 
only in the form of explicit references, 
not implicit ones. Rejected. The Commission maintains its 
initial text (definition of comparative 
advertising). 
3.3 Ban on the presenting of goods or Rejected. This proposal is not the 
services as imitations or replicas already appropriate place to treat this question. 
protected by the legislation on trade 
marks. 
3.8 "Objective truth" should also be taken Accepted. (Article 1.3). 
to imply that the information is fully up 
to date, 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
Concerning comparative advertising and amending Directive 84/450/EEC 
concerning misleading advertising 
INITIAL PROPOSAL 
THE COUNCIL OF THE EUROPEAN 
COMMUNITIES 
Having regard to the Treaty establishing 
the European Economic Community and 
in particular Article 100a thereof, 
Having regard to the proposal from the 
Commission,1 
In cooperation with the European 
Parliament, (2) 
Having regard to the opinion of the 
Economic and Social Committee, (3) AMENDED PROPOSAI 
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 proposal from the 
Commission, 
Acting in accordance with the procedure 
referred to in Article 189b of the Treaty2 
Having regard to the opinion of the 
Economic and Social Committee3 
Whereas one of the Community's main 
aims is to complete the internal market 
by 31 December 1992 at the latest; 
whereas measures must be adopted 
gradually to establish the internal 
market; whereas the internal market 
comprises an area which has no internal 
frontiers and in which goods, persons, 
services and capital can move freely; Whereas one of the Community's 
main aims is to complete the 
internal market whereas 
measures must be adopted 
gradually to establish the internal 
market; whereas the internal 
market comprises an area which 
has no internal frontiers and in 
which goods, persons, services 
and capital can move freely; 
Whereas advertising is a very important 
means of creating genuine outlets for all 
goods and services throughout the 
Community; whereas the basic 
provisions governing the form and 
content of advertising must therefore be 
uniform; whereas, however, this is not 
currently the case for comparative 
advertising, Unchanged. 
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, the use of 
comparative advertising must be 
authorised in all the Member States 
since this will help demonstrate the 
merits of the various products within the 
relevant range; whereas comparative 
advertising can also stimulate 
competition between suppliers of goods 
and services to the consumer's 
advantage; 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, the use of comparative 
advertising must be authorised under 
certain very stringent conditions in all 
the Member States since this will help 
demonstrate the merits of the various 
products within the relevant range; 
whereas under such conditions... 
comparative advertising can stimulate 
competition between suppliers of 
goods and services to the consumer's 
advantage. 
lo 
Whereas the laws, regulations and 
administrative provisions of the 
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 
created 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 must be assured: whereas 
the Union is called on to remedy this 
situation: 
^ 
Whereas the sixth recital of Council 
Directive 84/450/EEC of 10 September 
1984 relating to the approximation of the 
laws, regulations and administrative 
provisions of the Member States 
concerning misleading advertising1 states 
that, after the harmonisation 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"; Unchanged. 
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 consumers2; whereas this right is 
confirmed by the Council Resolution of 
19 May 1981 on a second programme of 
the European Community for a consumer 
protection and information policy3, point 
40 of the Annex to which deals 
specifically with consumer information; 
whereas comparative advertising, when it 
compares relevant and verifiable details 
and is neither misleading nor unfair, is a 
legitimate means of informing consumers 
to their advantage; 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 Community for a consumer 
protection and information policy, point 40 
of the Annex to which deals specifically 
with consumer information; whereas 
comparative advertising, when it compares 
details which are relevant, always verifiable 
and neither misleading nor unfair, may be a 
legitimate means of informing consumers 
to their advantage; 
OJL. 250 of 19.9.1984, p. 17 
OJ No C 92 of 25.4.1975, p. 1 
OJNoC 133 of 3.6.1981, p. 1 
Whereas objective criteria must be 
established in order to determine which 
practices relating to comparative 
advertising are unfair and therefore may 
distort competition, cause damage to 
competitors and have an adverse effect on 
consumer choice; Unchanged 
Whereas, in particular, in order to prevent 
comparative advertising being used in an 
unfair and anti-competitive manner, only 
comparisons between competing goods 
and services of the same nature should be 
allowed; 8. Unchanged 
Whereas comparative tests carried out by 
third parties can constitute a valuble basis 
for comparative advertising; whereas, 
however, this independent activity requires 
clearly defined protection against the 
unauthorised use of results by advertisers; 
whereas, where such use is lawfully made, 
advertisers must themselves assume 
responsibility for it; Deleted 
^3 
Whereas Article 5 of Directive 
89/104/EEC of 21 December 1988 to 
approximate the laws of the Member 
States relating to trade marks4 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; Unchanged. 
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; 10. Unchanged 
Whereas such use of another's trade 
mark or trade name, provided it 
complies with the conditions laid down 
by this directive and, in particular, 
does not try to capitalise on the 
reputation of another trademark, does 
not breach this exclusive right given 
that this kind of use is not intended to 
steal reputations but to distinguish 
between them and thus objectively 
highlight differences; 11. Whereas such use of another's trade mark 
or trade name does not breach this 
exclusive right in cases where it complies 
with the conditions laid down by this 
directive and does not capitalise on the 
reputation of another trademark, but is 
intended solely to distinguish between 
them and thus objectively highlight 
differences; 
OJL40, 12.2.1989, p. 1. 
AH 
Whereas provision must 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 
requirements of fairness laid down by 
this Directive; 12. Whereas provision must 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 requirements of fairness laid down by 
this Directive; whereas Article 6 applies to 
comparative advertising in the same way: 
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 of 
profession, and the general public 
should not apply to comparative 
advertising, given that the objective 
of this amendment is to allow it in all 
Member States under the same 
conditions and with a ligh level of 
piûlcCtiOn, 13. Unchanged. 
14. Whereas this Directive does not in any way 
affect Community provisions on advertising 
for certain products and/or services or 
relating to the advertising content of 
particular media: 
15. Whereas the authorisation of comparative 
advertising is. under the conditions set out 
in this Directive, necessary for the 
completion of the Internal Market and that 
an action at community level is required: 
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 therefore in 
accordance with the principle of 
subsidiarity. 
AS 
HAS ADOPTED THIS DIRECTIVE: HAVE ADOPTED THIS DIRECTIVE: 
Article 1 Article 1 
Council Directive 84/450/EEC is hereby Unchanged 
amended as follows: 
1. The title is replaced by the following 
title: 
"Council Directive of 10 September 1984 
concerning misleading and comparative 
advertising" 
2. In Article 2, point 3 is replaced by the 
following: 
"3. "comparative advertising" means any 
advertising which expiicitiy or by 
implication identifies a competitor or goods 
or services of the same kind offered by a 
competitor;" 
4) person means any natural or legal 
person." 
3. the following Article 3a is added: 
"Article 3a "Article 3a 
1. Comparative advertising shall be 
allowed, provided that it objectively 
compares the material, relevant, verifiable 
and fairly chosen features of competing 
goods or services and that it: 
(a) does not mislead; 1. Comparative advertising shall be allowed 
only provided that it objectively compares the 
material, relevant, always verifiable, fairly 
chosen and representative features of 
competing goods and services and that it: 
(a) does not mislead; 
AG 
?'" '»^ssmf^m 
(b) does not cause confusion in 
the market place between the 
advertiser and a competitor or 
between the advertiser's trade 
marks, trade names, goods or 
services and those of a 
competitor; (b) does not create the risk of 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 of those of a 
competitor; 
(c) does not discredit, denigrate or 
bring contempt on a 
competitor or his trade marks, 
trade names, goods, services or 
activities or aim principally to 
capitalise on the reputation of 
a trade mark or trade name of 
a competitor. (c) does not discredit, denigrate or bring 
contempt on the trade marks, trade names, 
goods, services or activities of a competitor 
and does not principally capitalise on the 
reputation of a trade mark or trade name of 
a competitor. 
Preference to or renroduction 
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 test 
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 " (d) does not refer to the personality or personal 
situation of a competitor. 
Deleted 
Comparative advertising must indicate the 
length of time during which the 
characteristics of the goods or services 
compared shall be maintained where these 
are the subject of a special or limited-
duration offer. 
1^ 
4. Article 4(1) is replaced by by 4. Unchanged, 
following: 
1. Member States shall ensure that 
adequate and effective means exist 
for the control of misleading 
advertising and comparative 
advertising in the interests of 
consumers as well as competitors 
and the general public. 
Such means shall include legal 
provisions under which pesons or 
organisations regarded under 
national law as having a legitimate 
interest in prohibiting misleading 
or comparative advertising may: 
(a) take legal action against 
such advertising; and/or 
(b) bring such advertising before 
an administrative authority 
competent either to decide 
on complaints or to initiate 
appropriate legal 
proceedings. 
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." 
Article 4(2) is replaced by the 5. Unchanged, 
following. 
"2. Under the legal provisions 
referred to in paragraph 1, Member 
States shall confer upon the courts 
or administrative authorities powers 
enabling the, in cases where they 
deem such measures to be necessary 
taking into account all the interests 
involved, and in particular the public 
interest: 
to order the cessation of, or to 
institute appropriate legal 
proceedings for an order for 
the cessation of, misleading or 
comparative advertising, or 
A3 
if misleading or comparative 
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, 
even without prooof of actual loss or 
damage or of intention or negligence on the 
part of the advertiser. 
Member States shall also make provision for Unchanged 
the measures referred to in the first 
subparagraph to be taken under an 
accelerated procedure: 
either with interim effect, 
with definitive effect, 
on the understanding that it is for each 
Member State to decide which of the two 
options to select. 
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 comparative advertising the 
cessation of which has been ordered by a 
final decision: 
to require publication of that 
decision in full or in part and 
in such form as they deem 
adequate, 
to require in addition the 
publiction of a corrective 
statement." 
Article 5 is replaced by the following: 6. Unchanged 
"Article 5 
This Directive does not exclude the 
voluntary control of misleading or 
comprative advertising by self-
regulatory bodies and recourse to such 
bodies by the persons or organisations 
referred to in Article 4 if proceedings 
before such bodies are in addition to 
the court or administrative proceedings 
referred to in that Article." 
Article 7 is replaced by the following: 7. Article 7 is replaced by the following: 
"Article 7 "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. Unchanged 
2") 
Pragraph 1 shall not apply to 
comparative advertising" Unchanged. 
Community provisions on advertising for 
specific products and/or services or 
concerning the advertising content of 
particular media shall remain unaffected 
by this Directive. 
Article 2 Article 2 
Member States shall bring into force the 
laws, regulations and administrative 
provisions necessary to comply with this 
Directive by 31 December 1992 at the 
latest. They shall inform the Commission 
thereof forthwith. Member States shall bring into force the 
laws, regulations and administrative 
provisions necessary to comply with this 
Directive by 31 December 1995 at the 
latest. They shall inform the 
Commission thereof forthwith. 
When Member States adopt these 
provisions, these 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 the Member States. When Member States adopt these 
provisions, these 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 the Member 
States. 
Member States shall communicate to the 
Commission the text of essential 
provisions in domestic law adopted in 
the domain governed by this Directive. 
Article 3 Article 3 
This Directive is addressed to the Member Unchanged. 
States 
2 2. 
REVISED IMPACT ASSESSMENT FORM 
Title: Amended proposal for a Directive of the European Parliament and the Council 
concerning comparative advertising and amending Directive 84/450/EEC 
concerning misleading advertising. 
Reference No: COM(91) 147 final - SYN 343. 
l.Q. Taking account of the subsidiarity principle, why is Community legislation 
necessary in this area and what are its main aims? 
R. The current situation in which comparative advertising is authorised in certain 
Member States and banned in others puts consumers, advertisers and publicity 
workers in certain Member States at a disadvantage, and the medium used (press, 
radio or television) leads to substantial distortions in competition; hence the most 
practical and effective solution is to harmonise legislation on comparative 
advertising so as to ensure that the consumer's right to information is respected 
and that appropriate safeguards are established to avoid disputes between 
advertisers resulting from incompatible legislation. 
The purpose of the measure is to facilitate the creation and functioning of the 
internal market, at a high level of consumer protection, by approximating laws 
governing comparative advertising; hence the measure will encourage the free 
movement of advertising services insofar as they will be governed by a 
harmonised routine in all the Member States. 
The impact on business 
2.Q. Who will be affected by the proposal? 
R. Businesses, of all sizes, which wish to use comparative advertising to publicise 
the features of their products or services in greater detail. 
These businesses are not concentrated in particular geographic zones. 
3.Q What measures will businesses have to comply with the proposal? 
R. The proposal does not require the adoption of specific measures; advertisers will 
from now on be free to use comparative advertising in the Member States in 
which it is current banned or potentially risky. 
4.Q. What economic effects is the proposal likely to have? 
- on unemployment >p -2 
on investment and the creation of new businesses 
on the competitive position of businesses. 
R. It should not have any particular effect on employment or on the creation of new 
businesses or investment. As regards effects on competitive position, the proposal 
enjoins compliance with a certain number of conditions which risk exposing 
businesses to legal action if they use comparative advertising improperly; hence 
businesses which do not have a legal department, and in particular SMEs, might 
tend to avoid making use of comparative advertising; initially this could lead to 
a certain competitive disadvantage, which should disappear with the growth of 
established case law in this domain. 
5.Q. Does the proposal contain measures to take account of the specific situation of 
small and medium-sized enterprises? 
R. The proposal does not contain any particular measures relating to SMEs. 
Consultation 
6. List of organisations which have been consulted about the proposal and outline 
their main views. 
Consumers' Consultative Council: the CCC says that it has not called for 
this Directive although it recognises that comparative advertising is one 
element of information, albeit partial, to which consumers will have 
access. 
UNICE is in favour of harmonising rules on comparative advertising but 
wants authorisation of comparative advertising to be subject to conditions 
so as to ensure fair competition and protection of brand names. 
In general industry is divided on this issue and opinions range from those who 
would prefer a total ban of comparative advertising to authorisation without any 
conditions at all or authorisation under specific conditions. 
*H 
ISSN 0254-1475 
COM(94) 151 final 
DOCUMENTS 
EN 10 
Catalogue number : CB-CO-94-158-EN-C 
ISBN 92-77-67729-5 
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