A4-0219/97

Resolution on the Commission Green Paper on Commercial Communications in the Internal Market (COM(96)0192 - C4-0365/96)

The European Parliament,

- having regard to the Commission Green Paper (COM(96)0192 - C4-0365/96),

- having regard to Articles 59, 56, 30 and 36 of the EC Treaty,

- having regard to Articles 128 (culture), 129 (public health), 129a (consumer protection), 130 (industrial policy) and 85 (competition policy) of the EC Treaty,

- having regard to the eight cases dealt with by the Court of Justice of the European Communities since 1973 in the field of commercial communications,

- having regard to the Television without Frontiers Directive 89/552/EEC, notably its Articles 10-21 (television and sponsorship) and more specifically those concerning advertising of tobacco (Article 13), pharmaceuticals (Article 14), alcohol (Article 15), children's advertising (Article 16) and protection of minors (Article 22) ((OJ L 298, 17.10.1989, p. 23.)),

- having regard to the Misleading Advertising Directive 84/450/EEC ((OJ L 250, 19.9.1984, p. 17.)); the Directive on Advertising for medicinal products for human use 92/28/EEC ((OJ L 113, 30.4.1992, p. 13.)); the Data Protection Directive 95/46/EC ((OJ L 281, 23.11.1995, p. 31.)); the Directive on Labelling, Presentation and Advertising for Foodstuffs for sale to the ultimate consumer 79/112/EEC ((OJ L 33, 8.2.1979, p. 1.)); the Directive on coordination of laws, regulations and administrative provisions relating to direct life insurance 92/96/EEC ((OJ L 360, 9.12.1992, p. 1.)); the Commission recommendation on codes of practice for the protection of consumers in respect of contracts negotiated at a distance (distance selling) 92/295/EEC ((OJ L 156, 10.6.1992, p. 21.)),

- having regard to its resolution of 20 February 1997 on the Commission Communication on Priorities for Consumer Policy 1996-1998 ((OJ C 85, 17.3.1997, p.133.)), in particular its paragraphs 5 (distance selling and comparative advertising); 6, 8 and 9 (implementation of European law); 10 (redress); 11 (time-frame); 22 (information); 23 (transparency),

- having regard to the Commission Green Paper on the protection of minors and human dignity in audio-visual and information services (COM(96)0483 - C4-0621/96),

- having regard to its resolution of 24 April 1997 on the Commission Communication on illegal and harmful content on the Internet ((Minutes of that Sitting, Part II, Item 11.)),

- having regard to the extensive consultation performed by the Commission in preparation of this Green Paper and the underlying studies,

- having regard to the possibility for every European citizen to use the services of the Ombudsman and the Committee on Petitions of the European Parliament to seek redress,

- having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy and the opinions of the Committee on the Environment, Public Health and Consumer Protection, the Committee on Culture, Youth, Education and the Media and the Committee on Legal Affairs and Citizens' Rights (A4- 0219/97),

A. whereas it is essential that the European Commission applies its right of initiative to fulfil the obligation laid down in Article 63 of the Treaty in due respect of the principle of subsidiarity and the broader goals of the Treaty,

B. whereas the persons and businesses providing commercial communication services should benefit from Article 59 of the Treaty since such services are remunerated and may be provided across frontiers, while taking due account of cultural differences,

C. whereas the Internal Market for commercial communications is currently not functioning in a satisfactory manner, as 99% of those consulted providing commercial communication services identified potential trade barriers linked to disparities in national regulations and cultural differences,

D. whereas commercial communications should not be regarded merely as a sector of economic activity; whereas clear and transparent guidelines at European level would contribute significantly towards achieving the internal market,

E. whereas there is a need to promote the development of cross-border commercial communication services which have a direct bearing on the free circulation of goods, offer enormous job creation potential and have a fundamental role to play in the on-going development of electronic commerce,

F. whereas the Green Paper fails to deal with important issues of concern to consumers; whereas in particular the need to protect the most vulnerable, such as children, has increased significantly over the last few years and continues to grow unrestricted at a rapid pace, also as a result of the growth of new technologies;

G. whereas Articles F and K2 of the EU Treaty refer explicitly to the European Convention for the Protection of Human Rights and Fundamental Freedoms, whose Article 10(1) stipulates that ¨everyone has the right to freedom of expression',

H. whereas examples of commercial communications should not offend religious feelings or contain any incitement to hatred on the grounds of religion, race, sex or nationality,

I. whereas commercial communications should not be a threat to mental or physical health and should not cause offence;

J. whereas the principle of subsidiarity should also apply in this sphere of activity, which means that measures may be enforced by self-regulation, but whereas Community-wide regulation is sometimes necessary,

K. whereas application of the principle of proportionality is essential to ensure that Community law is applied effectively,

L. whereas the Commission rightly states that restrictions imposed at national or European level need to be justified in terms of their proportionality and compatibility with the general interest objectives recognized in the Treaty concerning consumer protection, culture, health and other matters of public interest,

M. whereas in the area of commercial communications some liberal professions deserve to be subject to a special regulation governed by their own ethical code, whilst complying strictly with the provisions of the Treaty, in view of their participation in duties of public interest, the particular relationship they maintain with their clients or the fact that they are unable to guarantee the results desired,

N. whereas the infringement procedure under Article 169 of the EC Treaty in the area of commercial communications, as in other areas, does not currently work in an efficient and satisfactory way, although it could be an efficient and effective instrument for enforcing the consistency and proper implementation of the law,

O. whereas significant benefits to consumers are already apparent in terms of choice and quality of goods and services now available in Member States from all over the European Union, although the single market still has a long way to go before completion,

P. whereas it is of importance that consumers' access to justice and redress is ensured in cross-border communications; whereas there is still considerable work to be done to ensure that consumers have not only access to justice across borders, but access to proper, effective cross-border complaints procedures both nationally and throughout the European Union,

Q. whereas EC Treaty objectives as set out, inter alia, in Articles 100a and 129a require that the EU attain a high level of consumer protection, and that consumers and/or their representatives should be consulted and fully involved in all steps towards achieving the objectives of the Treaty; whereas both the Commission directorates-general responsible for the internal market and consumer protection, as well as consumer organizations, should play an integral role in the overall appraisal of policy-making in the commercial communications field,

R. whereas the encouragement of cultural diversity is both essential and an aim of the Treaty; whereas therefore differences between national rules and regulations in commercial communication have to be tolerated to a great extent on condition that they are proportional and non-discriminatory towards crossborder commercial communication,

1. Welcomes the Green Paper, but considers that the Commission's proposals must be reinforced in order to reach the intended goal;

2. Calls for effective application of the rules laid down by the Treaty and derived law in the field of the internal market, so as to ensure that public interests are protected;

3. Calls for more effective application of the principle of country of origin, to ensure that frontiers and barriers between the Member States are abolished and that the national authorities' protection of public interests is not confined entirely within their frontiers;

4. Considers, nevertheless, that allowance must be made for the social and cultural differences between the Member States as regards commercial communications in the Community area;

5. Believes that there is a need to delimit the scope of what is understood by commercial communications and the concept of service provider;

6. Asks the Commission to publish in its announced follow-up communication the definition of a proportionality assessment methodology, which includes strict time limits for decisions, is based on existing jurisprudence and explains how it is applicable to existing legislation at national and Community level, self-regulatory codes and new legislative proposals;

7. Calls, in this respect, on the Commission to assess due proportionality with an approach based on:

(a) the need to combine market opening objectives with the maintenance and improvement of high standards;

(b) the need for an appropriate blend of legislation and self-regulation which reflects the cultural differences of the Member States;

8. Supports the approach proposed in the Green Paper of assessing whether the restrictive measures are proportionate to their intended purpose, as this will make it possible to ensure that the area without frontiers operates effectively and provide better protection for objectives of public interest, such as consumer protection, public health protection, the protection of intellectual and commercial property and the protection of privacy;

9. Calls for the establishment of a tripartite committee made up of equal numbers of representatives of Member States, industry and consumer organizations, and asks to be consulted on its rules of procedure;

10. Calls on the Commission to establish the legal nature and scope of the committee which it proposes to set up to ensure proper implementation of the proportionality principle; considers it essential to include in this committee representatives from the commercial communications sector, consumers and the European Parliament;

11. Calls on the Commission to ensure that the proceedings of the Committee regarding the proposed proportionality assessment are fully transparent and further to ensure that the Committee consults thoroughly with the complaining parties, meets regularly, operates according to strict time limits, publishes its results, considers all complaints lodged with the Commission and reports to the European Parliament;

12. Believes that the proportionality assessment procedure should under no circumstances entail an extension of the normal deadline by which the Commission takes its decisions;

13. Calls on the commercial communications sector to ensure that its national and European self-regulatory procedures are publicly available, published and transparent, and that individual consumers can complain easily, without cost to themselves and in expectation of a prompt and satisfactory response; encourages the industries involved to include in the self- regulatory codes the principles of country of origin, mutual recognition and proportionality and to introduce minimum standards of consumer protection;

14. Considers that international codes such as those laid down by the International Chamber of Commerce (ICC) should be studied by the Commission when, having applied the proportionality principle, there is a clear need for a harmonizing proposal; and that the ICC should finalize its Guidelines on Interactive Marketing Communications;

15. Calls on the Commission, consumer organizations and industry to consider strengthening already existing self-regulatory complaints procedures, such as that of the European Advertising Standards Alliance (EASA);

16. Considers that it would be desirable for the national codes of conduct to be applied in such a way as to involve mutual recognition; considers that this phenomenon may lead to the drafting of codes of conduct at European level, always provided that they do not affect free competition within the internal market;

17. Calls on the European and national authorities to create an environment which allows consumer organizations to make full use of all enforcement mechanisms to protect the interests of consumers in the single market, including the infringement procedure, the forthcoming committee on proportionality and all national bodies responsible for overseeing commercial communication;

18. Calls on the Commission to present in the follow-up Communication a full inventory of existing barriers to free circulation of commercial communications services;

19. Asks the Commission to undertake a comprehensive study of the economic relevance of the commercial communications sector to the single market;

20. Stresses the need for a data bank with Community and national legislation in the area of commercial communications and for the immediate creation of a single European contact point which should be established in the context of a clearly defined framework of information and policy-making that incorporates all of the interests involved; the contact point should, as a first priority, supply the European Parliament with a full overview and analysis of existing self-regulatory codes in the Member States; in order to ensure a high level of consumer protection that respects cultural diversity this framework should be developed at an interservice level;

21. Calls on the Commission to consider a SLIM analysis (Simpler Legislation in the Internal Market) of the sector;

22. Calls on the Commission to study the obstacles to multi-level marketing, brand diversification, packaging and sponsoring in the European Union and to assess the need for legislation to guarantee the single market in these growing forms of commercial communication;

23. Approves the Commission's proposal that sponsorship should be considered one of the priority areas in the analysis of the sectors referred to in the Green Paper and requests the Commission to reflect in particular on:

(a) the differing regulations applying to sponsorship of an event and the televising thereof,

(b) the fiscal implications (for example differences in deductibility of the costs of patronage),

(c) a strategy for encouraging and recognising patronage and sponsorship for projects on a European scale and

(d) ways to improve information on the financing options that enable cultural initiatives to be developed in the Member States;

24. Underlines the need to safeguard the development of Internet, electronic commerce and related new media services, to create consumer confidence in the new services and to consider similar utilization of the legal and self- regulatory instruments of the commercial communications sector; calls on the Commission to propose a framework of rules on dishonest marketing methods;

25. Calls on the Commission to come forward with a more detailed assessment of the effects of commercial communications on children, their impact on privacy and the mechanisms through which consumer cross-border complaints should be addressed; and furthermore calls on the Commission to formulate proposals on the protection of minors and human dignity in audio-visual and information services following its Green Paper on that subject (COM(96)0483 - C4-0621/96) and on illegal and harmful content on the Internet following Parliament's resolution of 24 April 1997 on that subject ((Minutes of that Sitting, Part II, Item 11.)); stresses that national legislation on the protection of children, which has been considered proportionate following the assessment methodology, should not be weakened;

26. Is of the opinion that the Commission is not making full use of its existing powers; insists that Articles 63 and 169 of the EC Treaty must be applied systematically;

27. Is of the opinion that the Council should consider expanding the application of the proposed Directive on Regulatory Transparency Mechanism on new services to cover also Commercial Communications;

28. Requests that the Commission report back to the European Parliament on possible initiatives to improve the Treaty infringement procedures to ensure that these are transparent, operate to strict time limits and offer proper provision for appeal with equal access to all interest parties;

29. Asks for the introduction of a Council decision to enable possible infringement proceedings to be heard in the Court of First Instance ((This is in line with Parliament's resolution of 16 September 1993 on the role of the Court of Justice in the development of the European Community's constitutional system (OJ C 268, 4.10.1993, p. 156).));

30. Considers that, although the proposed method for evaluating the proportionality principle is a sound one, the legal scope thereof needs to be determined and it must be combined with an assessment of other policies as well; in particular, this method must not serve as an excuse for the Commission not to apply Article 155 of the Treaty effectively and, in the event of an infringement of Community law, not to bring those responsible before the Court of Justice;

31. Believes that, when drawing up its communication on commercial communications, the Commission should examine the principles deriving from secondary legislation in this sector and also take into account the following points:

(a) any future rules governing the commercial communications sector must take into account the legal aspects of the use of various types of communications in the Union by firms from third countries and the use of commercial communications by Union firms in third countries, as these aspects are of enormous importance in the information society;

(b) future Community legislation on commercial communications must take account of the legal and administrative solutions which have already been used to regulate this sector;

32. Calls on the Internal Market Council, as the Council responsible, to encourage the Consumer Affairs Council, the Telecommunications Council and the Social Affairs Council to hold a discussion on the issues arising out of this Green Paper;

33. Calls on the Commission, once the issues of principle and procedure raised by the Green Paper have been determined, to consider the question of their application to restrictions on commercial communications in the different sectors, including telecommunications, financial services, food, etc;

34. Deems necessary that allocations are made in the budget to implement the proportionality methodology and to ensure effective application of the infringement procedure; adequate resources must be made available in terms of funding and manpower;

35. Instructs its President to forward this resolution to the Council and to the Commission, as well as the industries and consumer organizations concerned.