9. 7. 79 Official  Journal  of the European  Communities No C 171/43 
Done  at Brussels,  5 April  1979. 
The Chairman 
of the Economic  and  Social  Committee 
Fabrizia  BADUEL  GLORIOSO 
Opinion  on the proposal  for a Council  Directive  relating  to the approximation  of the laws, 
regulations  and  administrative  provisions  of the  Member  States  concerning  misleading  and 
unfair  advertising 
The text  referred  to the Committee  has  been  published  in Official  Journal  of the European 
Communities  No  C 70 of 21 March  1978,  page  4. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 10 March  1978,  the Council  referred  the abovementioned  proposal  to the Economic  and 
Social  Committee  in accordance  with  Article  100  of the  Treaty  establishing  the European 
Economic  Community. 
B. OPINION  OF  THE  ECONOMIC  AND  SOCIAL  COMMITTEE 
The Economic  and  Social  Committee  prepared  its opinion  on the above  matter  at its 167th 
plenary  session,  held  in Brussels  on 4 and  5 April  1979. 
The full  text  of the opinion  is as follows: 
THE  ECONOMIC  AND  SOCIAL  COMMITTEE,  HAS  ADOPTED  THE  FOLLOWING  OPINION 
Having  regard  to the  Treaty  establishing  the European 
Economic  Community  and,  in particular,  Article  100 
thereof, 
Having  regard  to the  request  made  by the  Council  of 
the European  Communities  on 10 March  1978  for  an 
opinion, 
Having  regard  to the  Decision  taken  by its Bureau  on 
29 March  1978,  instructing  the  Section  for  Protection 
of the  Environment,  Public  Health  and  Consumer 
Affairs  to draw  up an opinion  and  a report  on the 
matter, 
Having  regard  to the  opinion  issued  by the  Section  for 
Protection  of the  Environment,  Public  Health  and 
Consumer  Affairs  on 6 March  1979, 
Having  regard  to  the  report  submitted  by  the 
rapporteur,  Mr Ramaekers, 
Having  regard  to the  discussions  at its 167th  plenary 
session,  held  on  4 and  5 April  1979  (meeting  of 
5 April  1979), following  a vote  by name,  (Article  45 of the  Rules  of 
Procedure)  resulting  in 77 votes  for,  2 against  and 
39 abstentions: 
1. General  comments 
1.1. The  Committee  observes  that,  in  proposing 
approximation  of  the  Member  States'  legislation 
concerning  misleading  and  unfair  advertising,  the 
Commission  has  taken  the  initiative  towards  the 
realization  of an  important  aim  laid  down  in the 
Community's  preliminary  programme  for  a consumer 
protection  and  information  policy. 
1.2. Advertising  is a socio-economic  phenomenon  that 
is part  of our  contemporary  society  and  one  of the 
elements  that  go  to  make  up  current  marketing 
techniques.  It plays  an  important  role  in relations 
between  competitors  and  in relations  between  industry 
No C 171/44 Official  Journal  of the European  Communities 9. 7. 79 
and commerce  on the one  hand  and  consumers  on the 
other. 
1.3. This  being  so,  the  Committee  supports  the 
Commission  in  proposing  legal  measures  against 
misleading  and  unfair  advertising. 
1.4. The  Committee  recognizes  the  vulnerability  of 
consumers  in particular.  Not  only  is the  number  of 
advertising  messages  they  are  exposed  to  quite 
considerable,  but,  and  this  is more  important,  they  also 
have  to contend  with  a very  wide  range  of advertising 
activities,  some  of which  are  sometimes  misleading  or 
unfair. 
1.5. The  Commission  rightly  states  that  advertising  is 
increasingly  reaching  beyond  the frontiers  of individual 
Member  States.  This  is a natural  and  inevitable 
consequence  of the internationalization  of markets. 
1.6. Economic  operators  are  organizing  on a global 
scale  and  the Member  States  have  joined  in this  process 
by setting  up a common  market  for goods  and  services. 
In the Committee's  view,  it is essential  in order  for this 
market  to function  properly,  for  the  Member  States 
gradually  to align  legislation  standing  in the  way  of 
economic  integration.  Approximation  of the  Member 
States'  laws,  regulations  and  administrative  provisions 
in respect  of misleading  and  unfair  advertising  is a case 
in point. 
1.7. The  Committee  notes  that  the proposed  Directive 
is designed  to give  consumers  improved  protection 
against  misleading  and  unfair  advertising.  By defining 
misleading  advertising  and  unfair  advertising,  by 
allowing  comparative  advertising  (subject  to certain 
restrictions),  by  requiring  the  Member  States  to 
introduce  appropriate  legal  measures,  and  by placing 
the burden  of proof  in respect  of claims  made  by the 
advertiser  upon  the  advertiser  himself,  the  Directive 
goes  farther  than  existing  consumer  protection 
legislation  in certain  Member  States.  The  proposed 
Directive  will  also  give  consumers  a uniform  means  of 
legal  protection  in the  face  of the  ever-increasing 
integration  in trade  and  industry. 
1.8. The  Committee  would  draw  attention  to the fact 
that there  are other  aspects  to advertising  which  affect 
consumers  apart  from  the question  of whether  or not it 
is untruthful.  This  point  is made  in item  30 of the 
Preliminary  Programme  of the  EEC  for  a Consumer 
Protection  and  Information  Policy,  which  refers  to 
'protection  ....  against  forms  of advertising  which 
encroach  on the individual  freedom  of consumers'.  The 
Commission  is asked  to consider  these  other  aspects  in 
its future  work. 2. Specific  comments 
2.1. Aims  of the directive  (Article  1.) 
2.1.1.  The  Committee  approves  the  aims  and  the 
general  rationale  of the Directive,  which  is designed  to 
protect,  not  only  consumers  and  competitors,  but  also 
the general  public  against  misleading  and  unfair 
advertising  designed  to promote  the  supply  of goods 
and services. 
2.2. Definition  of advertising  (Article  2) 
2.2.1.  The  Committee  notes  that  the definition  is clear. 
It gives  the  Directive  a broad  substantive  basis  and 
forms  and  appropriate  starting  point  for rules  to deal 
with  misleading  and  unfair  advertising.  The  Committee 
is pleased  that  the  Directive  applies  to both  moveable 
and immoveable  property  and  services. 
2.2.2.  The  Committee  recognizes  that  the  use  of the 
term  'pronouncement'  in the definition  means  that  the 
Directive  covers  all forms  of presentation,  regardless  of 
the media  or vehicles  used  an regardless  of whether  the 
message  is of a specialized  or a non-specialized  nature. 
2.3. Definition  of misleading  advertising  (Article  2) 
2.3.1.  The  Committee  considers  that  the  definition 
should  cover  misleading  advertising  as such,  without 
taking  into  account  factors  such  as negligence  or 
deliberate  misrepresentation  on  the  part  of  the 
advertiser  or  the  actual  damage  suffered  by  the 
complainants. 
2.3.2.  It also  follows,  in the Committee's  view,  that  — 
contrary  to the present  text  — the definition  should  not 
make  reference  to the persons  to whom  the advertising 
is addressed  or the persons  who  may  be reached  by it. 
These  concepts  are purely  subjective  and  their  inclusion 
makes  the  Directive  less  effective.  In the  Committee's 
views  it is better  to leave  these  matters  to the discretion 
of the court. 
2.4. Definition  of unfair  advertising  (Article  2) 
2.4.1.  The  Committee  notes  that  the definition  given  is 
a move  towards  reforming  advertising. 
2.4.2.  The  Committee  wishes  to make  the  following 
points: 
— Article  2 (c):  the  wording  of this  sub-paragraph  is 
such  that  it could  lead  to a ban  on  lawful 
advertising  by insurance  companies,  suppliers  of 
anti-theft  devices,  safety  belts  and  legally-authorized 
9. 7. 79 Official  Journal  of the European  Communities No C 171/45 
self-defence  aids.  The  Committee  therefore  proposes 
that the  text  be  amended  so as to authorize 
advertising  which  draws  attention,  for  justifiable 
reasons  and  in an appropriate  manner,  to risks  to 
which  we are unfortunately  all exposed. 
— Article  2, (c) and (d):  the provision  of the Directive 
dealing  with  advertising  which  constitutes  racial  or 
sexual  discrimination  must  not  be incompatible 
with  a number  of laws  already  in existence  in some 
Member  States  (e. g. the Sex  Discrimination  Act  and 
the Race  Relations  Act  in the UK). 
— Article  2 (e):  the word  'exploits'  should  be replaced 
by 'abuses'. 
2.4.3.  Finally,  the Committee  calls  for the inclusion  in 
the Directive  of a definition  of 'services'. 
2.5. Criteria  for  misleading  or  unfair  advertisements 
(Article  3) 
2.5.1.  The  Committee  notes  that  the list of factors  to 
be taken  into  consideration  is non-exhaustive.  The 
Committee  wonders,  however,  whether  it would  not  be 
advisable  to include  in the list the possibility  of people 
being  misled  by the nature  of the advertisement.  Cases 
could  arise  in which  the  consumer  fails  to realize,  or 
does  not  realize  sufficiently  quickly  that  a particular 
statement  is in fact  an advertisement  and  was  intended 
as such  by the party  making  the statement. 
2.5.2.  The  Committee  proposes  that  Article  3 (2) be 
amended  to provide  that  advertising  shall  be regarded 
as misleading  not  only  when  it omits  material 
information,  but  also  when  the  advertiser  gratuitously 
includes  data  which  may  wrongly  or inadequately 
inform  consumers  or lead  them  to draw  distorted 
conclusions. 
2.6. Comparative  Advertising  (Article  4) 
2.6.1.  The  Committee  notes  that  the  Directive 
authorizes  comparative  advertising  to the  extent  that 
comparison  is made  of essential,  comparable  and 
verifiable  data  and  provided  that  it is neither  misleading 
nor unfair. 
However,  the  Committee  observes  that  comparative 
advertising  will  be new  to certain  Member  States.  The 
Committee  has  reservations  over  this  form  of 
advertising. 
2.6.2.  The  Committee  proposes  that  comparative 
advertising  should  be authorized  for  a trial  period  of 
five years.  At the  end  of that  period  a final  decision 
should  be taken,  in the light  of the experience  gained,  as to whether  comparative  advertising  should  continue  to 
be allowed  or whether  it should  be banned. 
2.7. Laws  against  misleading  and  unfair  advertising 
(Article  5) 
2.7.1.  The  Committee  recognizes  that  under  the 
Treaties  setting  up the European  Communities  it is not 
possible  to be more  specific  in the Directive  about  the 
nature  (civil,  criminal  and/or  administrative)  of the laws 
to be  introduced  by  the  Member  States  against 
misleading  and  unfair  advertising,  and  thereby  achieve 
harmonization  in that  respect  as well. 
2.7.2.  The  Committee  would  nevertheless  like  to 
express  its preference  that: 
— the  Member  States  be required  to make  provision 
for readily  accessible  legal  protection,  not  only  for 
individuals,  but  also  for  trade  associations  and 
representative  consumer  organizations, 
— the  Directive  bring  in an 'accelerated  procedure'  in 
the courts  and  enables  the courts  to prohibit  — on 
an interim  basis  or definitively  — advertising  that  is 
to all appearances  misleading  or unfair,  or order  the 
cessation  of such  advertising,  without  it being 
necessary  for the plaintiffs  to furnish  proof  of fault 
or actual  prejudice, 
— the  Directive  afford  the  parties  the  possibility  of 
confronting  their  respective  cases  in a 'dialogue 
phase'  so that  an  amicable  settlement  can  be 
reached  where  possible, 
— the  courts  be empowered,  where  they  consider  it 
appropriate  from  the point  of view  of respecting  the 
interests  in question,  to order  publication  of either  a 
corrective  statement  or the court  decision  in full  or 
in part, 
— the  Member  States  introduce  effective  sanctions 
which  take  account  of material  damage,  injury  to 
reputation  and  undue  profit  in order  to bring  about 
a gradual  reform  of the  advertising  sector  and, 
where  necessary,  provide  injured  parties  with 
appropriate  compensation, 
— the  Directive  be supplemented,  at a later  date,  by 
provisions  for  improving  the  protection  of 
consumers'  interests  as regards  contracts  concluded 
as a result  of misleading  advertising,  at least  where 
there  exists  no such  provisions  already. 
2.8. Reversal  of the burden  of proof  (Article  6) 
2.8.1.  The  Committee  recognizes  the legal  significance 
of the  provision  under  which  the  burden  of proving 
statements  made  in advertising  is to lie  with  the 
No C 171/46 Official  Journal  of the European  Communities 9. 7. 79 
advertiser,  although  all other  elements  will  have  to be 
proved  by the plaintiff. 
2.8.2.  The  Committee  observes  that  this  exception  to 
general  legal  principles  does  not  constitute  a legal 
innovation,  as there  are sources  of law  in the Member 
States  which  place  the burden  of proof  on the defence, 
particularly  where  the defendant  is in a better  position 
to provide  proof  than  the plaintiff. 
2.8.3.  Accordingly,  the Committee  gives  its support  to 
the proposed  reversal  of the burden  of proof.  It is aware 
that this  will  protect,  not  only  the consumer  and  the 
public  at large,  but also  competitors  whose  advertising 
is fair. 
2.8.4.  In the  Committee's  view  the  reversal  of the 
burden  of proof  must  apply  only  to advertisers'  claims 
which  may  be verified,  i. e. objective  claims. 
2.8.5.  It is clear  from  the Explanatory  Memorandum 
that the reversal  of the burden  of proof  only  applies  in 
the event  of court  proceedings  and  does  not in any way 
oblige  the advertiser  to provide  information  to either 
competitors  or consumers.  In the  Committee's  view, 
however,  it must  not  be possible  for  the  proposed 
provision  to be  used  by  competitors  to oblige 
advertisers  to reveal  business  secrets. 
2.9. Self-regulation  (Article  7) 
2.9.1.  The  Committee  acknowledges  that  the 
self-regulatory  bodies  dealing  with  advertising  in certain 
Member  States  have  played  a useful  role up to now.  The 
Committee  nevertheless  approves  the  provision  in 
Article  7 whereby  all persons  or organizations  involved 
would  have  the  right  possibly  to institute  legal 
proceedings. 2.9.2.  Although  self-regulatory  bodies  might  be 
authorized  to settle  disputes  between  advertisers,  legal 
action  is still the most  appropriate  way  of defending  the 
interests  of consumers  and  the general  public. 
2.10.  Other  national  provisions  (Article  8) 
2.10.1.  The  Committee  appreciates  that  the provisions 
of the  proposed  Directive  do  not  constitue  the 
maximum  degree  of protection  but  the  minimum. 
Exceptionally  national  laws  may  go beyond  these 
minimum  provisions,  the  public  interest  being  more 
important  than  the harmonization  of law. 
2.10.2.  However,  in order  not  to accentuate  the 
divergences  between  the laws  of the Member  States,  the 
Committee  trusts  that  the Directive  will  stipulate  that 
the Member  States  must  stick  by the definitions  laid 
down  in Article  2 of advertising,  misleading  advertising 
and unfair  advertising. 
2.10.3.  Not  only  the  consumer,  but  also  all other 
economic  agents  have  an interest  in transactions  being 
open  and  fair.  The  Committee  therefore  trusts  that 
Article  8 will  be widened  to cover  provisions  designed 
to ensure  the protection,  not only  of persons  engaged  in 
commercial,  industrial  or professional  activity,  but also 
the public  at large. 
2.11.  Timescale  (Article  9) 
The Committee  considers  that  it would  be advisable  to 
allow  the Member  States  24 months  rather  than  18 to 
comply  with  the Directive,  since  the measures  necessary 
to implement  the  Directive  may  necessitate  a major 
recasting  of legislation  in some  Member  States. 
Done  at Brussels,  5 April  1979. 
The Chairman 
of the Economic  and  Social  Committee 
Fabrizia  BADUEL  GLORIOSO 
9. 7. 79 Official  Journal  of the European  Communities No C 171/47 
ANNEX 
to the opinion  of the  Economic  and  Social  Committee 
I. THE  FOLLOWING  AMENDMENT  WAS  REJECTED  DURING  THE  DEBATE: 
Points  2.8.3  and  2.8.4 
Replace  these  two  points  by the following: 
'The  Committee  considers  that  the  reversal  of the  burden  of proof  is only  necessary  if there  are 
reasons  to believe  that  a claim  made  in an advertisement  is not  borne  out  by reality  and  if it would 
be very  difficult  for the plaintiff  to prove  that  such  was  the case.  In the Committee's  view,  therefore, 
the proposals  put  forward  by the Commission  with  regard  to the reversal  of the burden  of proof  are 
too unqualified.  Furthermore,  there  is a risk  that  the  proposed  provisions  could  be used  by 
competitors  in order  to oblige  an advertiser  to divulge  business  secrets.  The  Committee  therefore 
asks  the Commission  to amend  the  proposal  (1) in line  with  the  comments  made  above  and  (2) in 
such  a way  as to ensure  that  advertisers  are not  obliged  to reveal  business  secrets'. 
Reasons 
The Commission's  proposal  would  imply  a radical  change  in the laws  of the majority  of Member  States 
and this  change  does  not  appear  to be justified. 
The proposed  amendment  takes  account  of the  difficulties  which  may  be encountered  by consumers  in 
proving  the inaccuracy  of a claim  without  systematically  placing  the burden  of proof  on the advertiser. 
Voting 
For: 50,  Against:  59,  Abstentions:  1. 
II. THE  FOLLOWING  NEW  PARAGRAPH  WAS  ADDED  TO  THE  SECTION  OPINION  AS THE 
RESULT  OF THE  APPROVAL  OF  AN  AMENDMENT  DURING  THE  DEBATE 
Point  2.8.4 
'2.8.4.  In the  Sections's  view  the  reversal  of the  burden  of proof  must  apply  only  to advertisers' 
claims  which  may  be verified,  i. e. objective  claims'. 
HI. THE  FOLLOWING  AMENDMENT  WAS  MADE  TO  THE  SECTION  OPINION  AS  THE 
RESULT  OF A PROPOSAL  APPROVED  DURING  THE  DEBATE 
Point  2.8.5  (formerly  point  2.8.4) 
'2.8.5.  ... In the  Section's  view,  however,  it must  not  be possible  for the proposed  provision  to be 
used  by competitors  to oblige  advertisers  to reveal  business  secrets'.