No C 180/14 Official Journal of the European Communities 11. 7. 91 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive concerning comparative advertising and amending Directive 
84/450/EEC concerning misleading advertising 
(91/C 180/15) 
COM(91) 147 final — SYN 343 
(Submitted by the Commission on 28 May 1991) 
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, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
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 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; 
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 authorized in all the Member States since this 
will help demonstrate the merits of the various products 
within the relevant range; whereas comparative adver­
tising can also stimulate competition between suppliers of 
goods and services to the consumer's advantage; Whereas the laws, regulations and administrative 
provisions of the Member States concerning comparative 
advertising differ widely; whereas advertising reaches 
beyond 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 the sixth recital of Council Directive 
84/450/EEC of 10 September 1984 relating to the 
approximation of the laws, regulations and adminis­
trative provisions of the Member States concerning 
misleading advertising (') states that, after the harmon­
ization of national provisions against misleading adver­
tising, 'at a second stage . . ., as far as necessaiy, 
comparative advertising should be dealt with, on the 
basis of appropriate Commission proposals'; 
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 (2) 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 (3), and in particular point 40 of the 
Annex thereto 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; 
(') OJ No L 250, 19. 9. 1984, p. 17. 
O OJ No C 92, 25. 4. 1975, p. 1. 
O OJ No C 133, 3. 6. 1981, p. 1. 
11. 7. 91 Official Journal of the European Communities No C 180/15 
Whereas objective criteria must be established in order to 
determine which practices relating to comparative adver­
tising are unfair and therefore may distort competition, 
cause damage to competitors and have an adverse effect 
on consumer choice; 
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; 
Whereas comparative tests carried out by third parties 
can constitute a valuable basis for comparative adver­
tising; whereas, however, this independent activity 
requires clearly defined protection against the unauth­
orized use of results by advertisers; whereas, where such 
use is lawfully made, advertisers must themselves assume 
responsibility for it; 
Whereas Article 5 of the first Council Directive 
89/104/EEC 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; 
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; 
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 
capitalize on the reputation of another trade mark, 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; 
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 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 profession, 
(') O] No L 40, 12. 2. 1989, p. 1. 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 high level of protection, 
HAS ADOPTED THIS DIRECTIVE: 
Article 1 
Directive 84/450/EEC is hereby 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 explicitly 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 
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; 
(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; 
(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 
capitalize on the reputation of a trade mark or 
trade name of a competitor. 
2. 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 test gives his 
NoC 180/16 Official Journal of the European Communities 11.7.91 
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.'; 
4. Article 4 (1) is replaced by the 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 
persons or organizations 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.'; 
5. Article 4 (2) is replaced by the following: 
'2. Under the legal provisions referred to in 
paragraph 1, Member States shall confer upon the 
courts or administrative authorities powers enabling 
them, 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 appro­
priate legal proceedings for an order for the 
cessation of, misleading or comparative adver­
tising, or 
— if misleading or comparative advertising has not 
yet been published but publication is imminent, to 
order the prohibition of, or to institute appro­
priate legal proceedings for an order for the 
prohibition of, such publication, 
even without proof of actual loss or damage or of 
intention or negligence on the part of the advertiser. Member States shall also make provision for the 
measures referred to in the first subparagraph to be 
taken under an accelerated procedure: 
— either with interim effect, or 
— 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 publication of a 
corrective statement.'; 
6. Article 5 is replaced by the following: 
'Article 5 
This Directive does not exclude the voluntary control 
of misleading or comparative advertising by self-regu­
latory 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.'; 
7. Article 7 is replaced by the following: 
'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. 
11.7.91 Official Journal of the European Communities NoC 180/17 
2. Paragraph 1 shall not apply to comparative 
advertising.' 
Article 2 
Member States shall bring into force the laws, regu­
lations and administrative provisions necessary to comply 
with this Directive by 31 December 1992 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 accom­
panied by such reference on the occasion of their official 
publication. The methods of making such reference shall 
be laid down by the Member States. 
Article 3 
This Directive is addressed to the Member States.