WRITTEN QUESTION E-4028/00

by Angelika Niebler (PPE-DE) to the Commission

(21 December 2000)

Subject: Harmonisation of the law on advertising in the European Community

This May the European Parliament adopted the Directive on electronic commerce at second reading. The Directive centres on the country of origin principle under which persons offering goods and services over the internet only have to obey the rules on advertising applying in the country of where they are established. In view of the differing legislation on advertising in the Member States this can produce discrimination against nationals of a country where advertising regulations are strict such as the Federal Republic of Germany.

The strict advertising laws in Germany include a Discount Act and a Free Gift Act. The German Free Gift Act, which requires the offer of a free gift not to be made dependent on purchase of the principal article being advertised, would appear to be an inadmissible obstacle to the free trade in goods via the internet. This far-reaching prohibition also covers services and guarantees which are normal commercial practice in the other Member States and extensively used as a marketing tool (e.g. buy one, get one for free). This discriminates against German consumers who are deprived of extra inducements and against undertakings based in Germany in relation to their foreign competitors.

The harm caused on the internal market was particularly apparent in a recent decision by the Saarbrücken Higher Regional Court, which ruled that a lifetime guarantee given by one company for its products was a breach of the Free Gift Act and was therefore prohibited in Germany. The company had given the same guarantee in all Member States and throughout the world.

In the light of this clear discrimination against Germans, does the Commission believe there to be a need for harmonisation of advertising legislation within the Community and has it given instructions to prepare such harmonisation or will it be doing so? Will the Commission be taking appropriate measures against Germany on account of these provisions in the Free Gift Act which are an obstacle to cross-border competition?

Answer given by Mr Bolkestein on behalf of the Commission

(13 March 2001)

As set out in its Green Paper on commercial communications(1) and the subsequent follow-up Communication(2), the Commission has long been aware that the different national regulations on commercial communications (encompassing advertising, marketing, public relations (PR), sales promotion and sponsorship) have a substantial detrimental effect on the functioning of the Internal Market.

In the context of its policy on commercial communications, the Commission will present a Communication on sales promotion in the Internal Market, early this year which will set out in which areas it considers that there is a need for harmonisation of sales promotion regulations, in order to improve the functioning of the Internal Market. This will be based on the opinions adopted over the past two years by the Expert Group on commercial communications, which consists of experts in sales promotion regulation nominated by the Member States. The Communication will cover the following services: the communication of discount offers, the communication of an offer of a free gift or premium and the communication of promotional contests.

It should be noted also, that for on-line commercial communications of any type, the e-commerce Directive 2000/31/EC of the Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market(3) already foresees a country of origin regime (as set out in Article 3 and Article 6), meaning that the content of any commercial communication is subject to the law (and falls under the regulatory responsibility) of the country from where it originates. With regard to the German law on premium offers and free gifts (Zugabeverordnung), the Commission notes with interest that the German authorities have proposed its abolition. The Commission will continue to follow developments closely.

(1) COM(96) 192 final.

(2) COM(1998) 121 final.

(3) OJ L 178, 17.7.2000.