Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on injunctions for the protection of consumers' interests
Date: 1996-01-24
Institutions: Directorate-General for Health and Consumers, European Commission
Subjects: approximation of laws, consumer protection, infringement procedure (EU), injunction, interest in bringing an action

COMMISSiON  OF  THE  EUROPEAN  COMMUNITIES 

Brussels,  24.01. 1996 
COM(95)  712  final 

96/025  (COD) 

Proposal  för  a 
EUROPEAN PARLIAMENT ANO  COUNCIL DIRECTIVE 

on injunctions för the  protection  of consumers'  interests 

(presented by  the Commission) 

INTRODUCTION 

On  26  October  1992,  the  report  on  "The  internal  market  after  1992  - meeting  the  challenge" 
was  presented 
the  Commission  by  a  group  . öf  independent  persons  chaired  by 
Mr Peter  Sutherland. 

to 

This  report  examined  "the  issues  which  need  to  be  resolved  to  enable  Community  law  to  be 
administered  fairly  and  effectively"  and  considered  "what  is  required  to  meet  the  continuing 
. . .  of  those  involved  in  the  market  place  - consumers  and  businesses" 
expectations 
(foreword,  ultimate  and  penultimate  paragraph). 

In  this  context  the  report  stressed  that  "it  is  not  enough  to  pass  laws  and  simply  to  hope  that 
they  will  be  applied  evenly  in  ali  Member  States"  (Summary,  page  5)  and  that  "doubts  about 
the  effective protection  of consumers'  rights  need  to be overcome.  The issues  should be given 
rapid  consideration  by  the  Community"  (page  35,  Recommendation  No  22). 

On  16  November  1993,  partly  as  a response  to  the  Sutherland  Group's  recommendations,  the 
Commission  adopted  a  Green  Paper on  "Access  of consumers to justice  and  the  settlement of 
consumer disputes  in  the  single  market"  (COM(93)  576). 

The  Green  Paper was  given  very  wide  publicity  and  the  feedback  received  confirms the  need 
for  a  Community  initiative  in  this  area  - and  urgently  at  that. 

The importance of concrete measures to follow up the Green Paper, as well as the results of the 
consultations,  was  stressed  by  the  European  Parliament  (Resolution  of 22  April  1994),  by 
the  Committee  of  the  Regions  (Opinion  of  17  May  1994)  and  by  the  Economic  and 
Social  Committee (Opinion  of 1 June  1994). 

Several  Member  States  requested  the  Commission  to  present  a  proposal  för  a  Directive  to 
this  effect. 

In  the  summary  report  on  the  internal  market  presented to  the  European  Council  at  Essen  on 
9  December  (COM(94)  553  of 30  November  1994)  the  Commission  confirmed  that  it would 
"act  on  the basis  of the  consultations undertaken  on  its Green Paper". 

2 

. .IH)UM 

I.  Summary  of the  proce.~,-~,  ... -~  date and the results  of tbe 
consultations  m::  fäe  Green  Paper 

1. 1 

Following publication  of the Green Paper,  the Commission received  l 10 written  replies 
representing  all  interests  concemed  from  all  over  the  European  Union:  apart  from 
"institutional" opinions (Member States and Community institutions),  numerous written 
contributions were submitted by consumer advocacy groups, firms,  the legal professions 
(judges,  lawyers,  notaries)  as  well  as  other  bodies  responsible  för  settling  consurner 
di sputes  out  of court. 

1.2 

All  parties  who  replied  in  wntmg  by  the  deadline  set  out  in  the  Green  Papet 
(31  May  1994)  were  invited  to  a  hearing  organized  in  Brussels  on  22  July  1994,  at 
which  74  organizations and  bodies  participated. 

Some of the options aired in the replies received by the Commission were also discussed 
at the first European Consumer Forum on 4 October 1994, with almost 350 participants 
from  19 countries representing ali  parties concemed.  Hearings on the Green Paper were 
also  organized  by  the  European  Parliament  (Legal  Affairs  and  Citizens'  Rights 
Committee,  24  February  1994)  and 
the  Economic  and  Social  Co1nrnittee 
( 1 March  1994). 

1.3 

Generally  speaking  the  Green  Paper  was  very  we11  received,  the  reactions  being 
unanimous as regards the principles undergirding it,  and particularly on the fact that tbe 
existence  of effective means  of redress  för  consumer disputes  is  an  essential  condition 
för  the  smooth  functioning  of the  Single Market. 

As  regards  the  need  för  a  Community  initiative in  this  domain,  a  very  large  majority 
was in favour of such a move and indeed the Commission was widely  criticized för not 
relying  on  its  right  of  initiative.  For  example,  in  point  (c)  of  its  conclusions  the 
Economic  and  Social  Committee  "regrets,  however,  that the  Commission  has  not  now 
used  this  opportunity  to  submit  concrete  proposals  för  action  within  the  scope  of its 
specific  powers,  particularly  for  exploring the  potential  offered  by  Article  129a  of the 
Treaty  of  Rome". 
the 
European Parliament "considers that the scope and  scale of the problem of equal  access 
to justice för Community citizens justify Community action and believes that the desired 
objectives  cannot be adequately  achieved  by  the Member  States". 

In  point  8  of  its  Resolution  on 

the  Green  Paper, 

Besides the  Community  institutions and  most  of the representative organizations,  thrce 
Member  States  also  expressly  invited  the  Commission  to  present  a  proposal  för  a 
Directive. 

1.4 

As  regards  the  content  of the  Community  initiative,  the  great  majority  agree  that, 
without  ruling  out  other  initiatives,  the  Commission  should  be  urged  to  propose  a 
priority  action. 

3 

The idea is to coordinate national  provisions relating to actions för  an  injunction which 
may be brought in regard to certain unlawful commercial practices, and to secure mutual 
recognition  of the  entities entitled  to bring  such  actions. 

On  this  point,  the  position  of the Community  institutions is  as  föllows: 

The Parliament,  in its  Resolution  of 22  April  1994  on the  Green Paper (paragraphs  11 
to  14): 

- "shares the Commission's concern  that a Community  solution  should be föund  to the 
problems raised by  unlawful  commercial  practices,  by  means of actions of collective 
interest,  since  such  practices affect  both  consumers  and  firms\ 

- "notes that although these unlawful practices originate in one Member State, they may 

affect  consumers  in  another Member  States"; 

- "( ... )  and  för  this  reason  it  would  be  appropriate  to  harmonize  the  conditions  för 

bringing injunctions  against  unlawful  commercial  practices"; 

- considers that this  harmonization  should be accompanied by  the  mutual  recognition, 
between  Member  States,  of  the  right  of  organizations  of  firms  and  consumer 
organizations to bring ]egal  proceedings recognized by the law of the Member States". 

The  Council,  in  its  conclusions  on  the  Green  Paper of 17  May  1994: 

- "welcomes the introduction  in  the Member  States  of swift  and  simp1ified  procedures 
designed  to  put  an  end  to  certain  unlawful  commercial  practices,  but  notes  that  in 
some  cases  these  procedures  cannot  be  entirely  effective  in  preventing  unlawfu1 
transfronti er  practi ces"; 

- "shares  the  concem  of the  Commission  and  European  Parliament  to  find  a  solution 
to  the  problems  which  these  unlawful  practices  may  pose  and  which  might  affect 
consumer confidence  in  the  Single Market"; 

"stresses  that,  since  certain  unlawful  commercial  practices  have  a  transfrontier 
dimension, it may be necessary at Community level to develop initiatives to eliminate 
them"; 

- "requests  the  Commission  to  intensify  as  soon  as  possible  the  examination  it  has 
begun  of the  measures  which  can  be  taken  by  public  authorities  and/or  consumer 
organizations  as  well  as  by  professional  bodies  to  prevent  unlawful  commercial 
practi ces". 

In  its  unanimously  adopted  opinion  of. 17  May  1994  the  Committee  of the  Regions 
urged  the  Commission  "to  ensure  that  ali  Member  States  provide  för  some  förm  of 
representative action" to compensate för "the prohibitive costs to individuals ofbringing 
a legal  action". 

4 

In its unanimously adopted Opinion of 1 June  1994 the Economic and Social Committee 
considers  "that  the  Commission  should  rapidly  submit  legislative  proposals  on  the 
föllowing: 

(a) 

(b) 

definition  of common  principles  and  procedures  för  uniförm  proceedings  for 
settling transfrontier  consumer disputes  and  actions för  ao  injunction; 

definition  of basic  rules  för  the  standardization  of collective  or  joint  actions 
relating to consumer conflicts at  Community  level". 

• 

, 1.5 

Finally, the report drawn up för the Commission by the Sutherland Group ("The internal 
market after  1992 - meeting the challenge") already recommended that "Member States 
could  provide better (and  non-discriminatory) rights at court to consumer associations" 
(Recommendation  No  21 ). 

II.  Legal  hasis  and justification  of the  proposed  measures  in  the light of 
the  principle of subsidiarity 

The  problem 

Besides mechanisms designed to settle individual disputes,  ali  Community Member States have 
passed  laws  whose  purpose  is  to  limit  or  förestall  the  harmful  consequences  which  ce11ain 
unlawful  practices are liable to have för consumers and business competitors<1>.  An  ''inventory" 
of these  means  of redress,  whose  objective is to ensure the smooth functioning  of the national 
markets,  is  summarized  in  the  tahle  annexed  to this  explanatory  memorandum. 

The  inventory  shows  that  the  notion  of  an  action  för  ao  injunction  exists  m  all  the 
Member  States. 

Generally,  such actions are designed to enjoin the cessation of practices which the law declares 
to  be  illegal.  Since  their  objective  is  mainly  preventative,  the  effectiveness  of such  actions 
depends  very  much  on  the  speed  of the  procedure<2>.  This  is  also  an  essential  aspect  of legal 
certainty  both för  the  economic  system  as  a  whole and  för  the  sector in which the  challenged 
practices have  occurred. 

The  completion  of the  internal  market,  as  well  as  the  development  of new  distance  selling 
techniques  (Minitel, 
information 
superhighways, alongside traditiona! mail order selling) in principle allows products and services 
to  move  freely  without  the  intermediary  of  a  local  operator  who  could  address  potential 
problems occurring in  the  target  country. 

teleshopping  and  other  possibilities  offered  by 

the 

(1) 

(2) 

From  the point  of view  of firms  that  respect the  "rules  of the game",  the infringement 
of consumer law also  leads  to  distortions  of competition:  one very  obvious example  is 
misleading  advertising. 
The decision  ordering  "discontinuation"  of misleading advertising is of littlc use if it is 
delivered  only  after the  advertising campaign  has  ended. 

5 

In  certain  sectors  (för  example  Directive  89/552/EEC  on  "television  without  frontiers") 
Community law has established the  principle of home country control.  The corollary is that,  in 
the interests  of prevention,  actions för  an  injunction  will  increasingly  have  to  be brought in  a 
country  other than  that  in  which  the  plaintiff is  domiciled. 

In this context,  existing actions för an injunction provided för in the national  legal  orders in the 
domain  of consumer protection have two quite  specific and  particular limits. 

The  first  limit  is  bound  up  with  the  fact  that  in  most  Member  States  the  right  to  bring  such 
actions  is  reserved  to  certain  entities  which  are  "qualified"  to represent the  collective interest 
protected: 

consumer associations  "accredited"  at  national  level  (examples:- France,  Belgium); 

a  specific  national  authority  responsible  för  consumer  protection  within  the  country 
( examples:  United Kingdom,  Ireland). 

The second limit arises from  the fact that in certain Member States the very  admissibility of the 
action  is predicated on  the infringement of a provision of national  law (example:  Germany);  in 
other words,  an • infringement of substantive "foreign"  law,  even when  an  domestic equivalent 
rule  exists,  can  never be grounds för  action. 

As  a result,  the effectiveness of existing actions för an injunction is compromised whenever an 
unlawful  practice  originates  in  country  B but  has  its  effects in  country  A. 

In this case the "judicial" frontier of country B is often insurmountable, either because standing 
to  sue  is  the  privilege  of  national  representative  entities  (which  means  that  an  entity  in 
country  A is not entitled to  sue)  or because the admissibility  of the action  is predicated on  the 
applicability of national  substantive law (which means that the action cannot be brought by  the 
entity  in  country  B).  In  many  cases  of  misleading  advertising  exclusively  addressed  to 
French  consumers from  a post office box in  Germany,  the  action  för an  injunction brought in 
Germany by a German organization has thus been declared inadmissible "since the practice does 
not  affect the  German  market"(3>_ 

• 

This  frontier  also  reduces  the  effectiveness  of actions  för  an  injunction  in  Member  State  A 
(unless  immediately  executed):  such  actions  can  only  be  effective  if they  are  brought  in  the 
country  in  which  the judgment is  to  be executed. 

Therefore, the coordination  of national  rules governing actions för an  injunction is essential  to 
make  these  rules as  effective in  the  context  of the  Single Market as  they  are  at national  level. 

<3> 

See,  för  exampie,  Landgericht  Miinich,  2  April  1994,  Case  4  HKO  21  509/91,  and 
Landgericht  Aachen,  10  December  1993,  Case 43  0  175/93. 

6 

Legal  hasis  and  subsidiarity 

The  legal  hasis  is  Article  1 00a  since  the  provisions  the  application  of which  this  proposal 
is designed  to  improve,  derive  from  Community  acts  the  legal  hasis  of  which  is  also 
Arti cl e  1 00a. 

The choice of legal  hasis is also hased on the fact  that the provisions of this Directive estahlish 
the principle of mutual  recognition of hodies qualified to hring actions för an injunction as well 
as  the  coordination  of national  rules governing  such  actions. 

The first paragraph of Article 100a of the Treaty estahlishing the European Community provides 
för  the  "approximation  of the provisions laid down  hy  law,  regulation  or administrative action 
in  Memher  States  which  have  as  their  ohjeet  the  estahlishment  and  functioning  of  the 
internal  market". 

While the  estahlishment of this  single market involved the approximation of certain minimum 
"rules  of the  game",  its  functioning  now  depends  on  the  measures  that  make  it  possihle  to 
prevent  and/or  punish  infringement of the  rules  of the game laid  down  at  Community  level. 

In principle, it is up to the Memher States to implement these measures on the hasis of Article  5 
of  the  Treaty,  pursuant  to  which,  as  the  Court  of  Justice  recalled  in  its  judgment  of 
19  November 1991  (Cases C-6/90 and C-9/90, ECR 1991, p.  5357) "Member States are required 
to  take  all  appropriate  measures,  whether  general  or  particular,  to  ensure  fulfilment  of their 
ohligations  under  Community  law".  The  Court  went  on  to  say  that  "[a]mong  these  is  the 
ohligation  to  nullify  the  unlawful  consequences  of a breach  of Community  law". 

In  principle, appropriate means of redress should exist in the legal  orders of each Member State 
and,  in  general,  there would  seem  to be  no  need  to harmonize them. 

However,  in  the  context  of the  single  market the  notion  of an  "appropriate"  means  of redress 
must  be  assessed  also  with  an  eye  to the  intra-Community  dimension  of infringements:  when 
the  "unlawful  consequences"  of an  infringement  affect  the  nationals  of a  Member  State  and 
when  the  Brussels  Convention  has  established  that  the  court  of another  Member  State  has 
jurisdiction, the means of redress provided för in this second Member State should be accessible 
to  claimants in  the first  Member  State. 

However,  the  absence  of coordination  hetween  national  rules  governing the  access  to  certain 
means  of  redress  may  in  certain  areas  have  effects  which  are  incompatible  with  the 
ahovementioned  requirement. 

This is  the  purpose of this  proposal:  bearing in  mind  the intra-Community  dimension of the 
infringements in  question,  as well  as the  "compartmentalization" of national  means  of redress, 
the coordination  of national  rules governing these means of redress is crucial  för the effective 
and  non-discriminatory  application  of the underlying  Community  law and,  hence,  the  smooth 
functioning  of the  single market. 

7 

This  coordination  can  only  he  realized  by  the  Community  lawmaker,  as  was  the  case  för 
Council  Directives  92/13/EEC  of 25  February  1992  and  89/665/EEC  of 21  December  1989, 
which  coordinated national  rules relating to the application  of review  procedures to the award 
of public contracts and  also Council  Directive 93/7 /EEC  of 15  March  1993  which went so far 
as  to  introduce  "proceedings"  för  the  return  of a  cultural  ohjeet  which  has  been  unlawfully 
removed  from  the territory  of a Member  State. 

Proportionality 

Pursuant to the third paragraph  of Article  3b  of the EC  Treaty  "any  action  by  the Community 
shall  not go beyond  what is necessary  to  achieve the objectives of this Treaty".  Hence,  in this 
particular  case  the  content  of the  proposed  measure  will  be  limited  to  whatever  is  strictly 
necessary  to remedy  the consequences  of the two  problems  discussed  above. 

111.  The  content  of the  proposed  measure 

The proposed action  is based on the  existence,  at national  level,  of entities qualified to protect 
the interests of consumers and is föund in the application of the principle of mutual  recognition 
of  these  entities:  in  consonance  with  the  proportionality  principle,  the  establishment  of 
"representativeness"  criteria is  left to the  Member  States;  the Member  States  communicate to 
the  Commission 
level 
( and  subsequently  notify  any  changes  to  the  list)  and  fumish  these  entities  with  a  document 
certifying  their  "qualification".  This  mutual  recognition  applies  to the  qualification  enshrined 
in this document.  The national lists are published in the C series of the Official Joumal of the 
European Communities.  Any  subsequent modifications to these lists. are to he published in the 
same  way  at  regular intervals. 

list  of  entities  recognized  as  representative  at  national 

the 

The  action  för  an  injunction  envisaged  in  this  proposal  will  apply  in  so  far  as  the  substantive 
law of the Member States has been harmonized via a Community regulation or Directive.  The 
scope  of the Directive  is  hence  limited  to  practices  coming  within  the  remit  of national  laws 
that have been harmonized under the Directives listed in the Annex to this draft proposal.  The 
draft  proposal  concerns  acts  which  Community  law  declares  to  be  unlawful,  and  hence 
equivalent provisions must exist in ali the Member States: the action för an injunction is nothing 
but a tool  to ensure the effective application of the corresponding provision of Community law. 

Whenever  a  practice  which  Community  law  declares  to  be  unlawful  has  effects  in 
Member  State A but originates in Member State B,  mutual recognition under the Directive will 
mean  that existing national  laws can take effect,  while historical  and  legal  traditions will  be in 
no way compromised: the qualified entity in country A may either authorize the qualified entity 
in  country  B  to  institute  proceedings beföre  the  court  or  competent authority  of that  country, 
or it  may  itself take  action  beföre that  court  or this  competent authority. 

The proposed text in  no way  prejudices established remedies at national level:  these rights may 
be  far  broader  in  certain  Member  States  (för  example  France,  Netherlands,  Greece)  than  in 
others,  but  their  harmonization  does  not  seem  warranted  given  the  current  state  of 
Community  law. 

8 

IV.  Commentaries  on  the  Articles 

Article  1:  Scope 

The  proposal  för  a Directive  is  designed  to  coordinate  national  provisions  concerning  actions 
för  injunction  of  practices  which  are  contrary  to  Community  consumer  law  and  which 
undermine the  interests of consumers. 

Article  1 thus  refers  to  the  list  of Directives  featured  in  Annex  1 to  the  proposal:  hence  the 
scope has been  limited to infringements of national  provisions transposing the Directives listed 
in  the  Annex. 

In  other  words,  the  proposal  does  not  establish  a  "general"  right  to  sue  but,  rather,  enshrines 
minimum  review  procedures  which  are  specific  to  a  domain  of substantive  law  which  has 
already  been  harmonized  at  Community  level. 

It  does  not  create  any  "new"  obligation  för  business,  but  quite  simply  "recalls"  ex1stmg 
obligations  emanating  from  certain  Directives  which  are  already  in  force  or  are  about  to be 
adopted  (see  Annex). 

The  abovementioned  Directives  were  selected  because of the  impact  of their  infringement on 
consumer  interests  and  on  the  smooth  functioning  of the  single  market.  By  reference  to  this 
Directive,  other  Community  acts  may,  in  future,  extend  the  scope  of this  Directive  to  other 
specific  areas. 

In  its Resolution  of 29  June  1995  on  the effective uniförm  application of Community  law and 
on  the penalties applicable för  breaches of Community  law in  the internal  market,  the Council 
stressed  the  importance  of ensuring  " ...  that  Community  rules  are  uniförmly  and  effectively 
implemented,  in  accordance with the conclusions of the Essen European Council"  (first recital) 
and  held  that  "the  absence  of effective,  proportionate and  dissuasive penalties  för  breaches  of 
Community law could undermine the very credibility of joint legislation and affect the situation 
of citizens  of the  Union,  in  certain  cases  possibly  harming  conditions  of competition  and  the 
general interests referred toin the common rules" (fifth recital) (OJ No C 188, 22.7.1995, p.  1). 

Already  in  1992  in  its  Resolution  of 7 December  on  making  the  Single  Market  work,  the 
Council  undertook  "to  consider  as  a  matter  of priority  the  appropriate  initiatives  which  the 
Commission  may  decide  to  take  with  the  aim  of  ensuring  the  smooth  running  of  the 
Single  Market"  (OJ  No  C 334,  18.12.1992.  p.  3,  point 20). 

Article  2:  Actions  for  an  injunction 

The scope having been defined as a list of Community instruments, the first paragraph provides 
that any  infringement of the national  provisions transposing these instruments may  give rise to 
an  action  för  an  injunction. 

As  indicated  above,  actions  för  an  injunction  already  exist  in  ali  Member  States,  particularly 
on  the  hasis  of Council  Directive  84/450/EEC  of 10  September  1984  conceming  misleading 
advertising  and  Council ,Directive  93/13/EEC  of 5  April  1993  conceming  unfair  terms  in 

9 

consumer  contracts. 
It  involves  a  means  of  redress  designed  to  limit  or  prevent  damage 
resulting from  behaviour which  the law defines as  illegal,  as distinct from  actions för damages 
which  are  designed  to  "make good"  the  consequences. 

From  this  perspective,  an  action  för  an  injunction  can  prevent an  enormous number of actions 
for  damages.  But clearly  an  action  for  an  injunction  can  play  a  preventive role  only  provided 
it is  part  of an  effective and  rapid  procedure. 

Member  State experience  shows  that  to  be  effective  the  procedure  must  allow the court to: 

take the necessary measures to rectify, where appropriate, the effects of the infringement 
(for example,  Directive 84/450/EEC on misleading advertising provides för publication 
of the  decision); 

accompany  its decision  with sanctions provided in national  legislation  to assure respect 
för  the  decision. 

The  second  paragraph  establishes  the  principle  of access  to  means  of redress  covered  by  this 
Directive in  the event  of infringements which  have their effects in  other Member States.  The 
procedural  rules,  as  well  as  the technical  modalities för bringing an  action,  remain,  of course, 
those  provided  för  in  the lex  Fori. 

Without  prejudice to the  rules  of private international  law,  and  within the limits of its domain 
of application,  the  second  paragraph  of Article  2 enshrines  an  elementary  principle:  the  court 
having jurisdiction, by  virtue of existing Conventions, must be able to decide on the law which 
applies to the substance of the dispute,  even if the infringement has its effects only on a market 
other than  the  national  market. 

This  second  paragraph  is  the  logical  consequence  of the  notion  of an  "internal"  market:  when 
the  court  having  jurisdiction  has  to  rule  on  the  infringement  of  a  provision  transposing 
Community  law  and  when  the  applicable  law  is  that  of another Member  State transposing  the 
same  Directive,  this  court will take all  the  measures  provided  för  in  cases  of infringement  of 
the  "equivalent"  national  provision. 

Article 3:  Entities  qualified  to  bring  an  action 

In  the domain covered by  the proposal för a Directive,  actions för an injunction are "reserved", 
in  most  Member  States,  för  certain  "qualified"  entities  (see  the  table  annexed  to  the 
Explanatory  Memorandum). 

In  the  first  group  of countries  (France,  Belgium,  Luxembourg),  these entities  are  associations 
"approved"  at  national  level  (which  would  seem  to  exclude  ali  associations  "approved"  in 
neighbouring countries)~  in  the second group (United Kingdom,  Ireland,  Denmark,  Sweden and 
Finland),  the  action  is  normally  brought  by  a  national  authority  specifically  responsible  för 
protecting consumer interests in  the country in  question  (which  means their hands may  be tied 
when  an  infringement  is  committed  in  their  country  but  has  consequences  only  in  other 
countries);  in  the third  group of Member  States (notably  Gennany,  Netherlands  and  Italy),  the 
action  is  "open"  to  ali  entities which  meet  certain  criteria. 

10 

Consequently, when  consumers in Member State A are affected by  an  infringement originating 
in  Member  State B  and  when  this  second  Member  State belongs  to  the  first  or  second  of the 
abovementioned  groups the  situation  is  as  follows: 

the  "qualified"  entity  in  country  A  is  not  entitled  to  bring  an  action  in  country  B 
(the  action  för  an  injunction  being reserved  there to  "national"  entities);  and 

the  "qualified"  entity  in country  B does not have  an  "interest"  in bringing an  action on 
behalf of interests located  "abroad"  (orin certain countries has no  authority  to do  so). 

ln  order  to  permit  the  entities  qualified  under  national  law  to  act  effectively  outside  their 
national  borders  (see  Article 4),  without  however harmonizing the criteria för  qualification of 
these entities, Member States must draw up a sufficiently transparent list of such entities.  This 
Article requires Member States to establish,  at national  Ievel,  a Iist of entities qualified to bring 
an  action  as  envisaged in  Article 2. 

The organizations and bodies featuring in  each national  list receive a document certifying their 
"qualification"  vis-it-vis  the  competent  authorities  (paragraph  2)  and  the  lists  of entities  thus 
qualified (as well  as  any  modification thereof) is  communicated to the Commission which sees 
to  their  publication  in  the Official  Journal  (paragraph  3 ). 

The  purpose of this  final  provision  is both to facilitate the work of the authorities in  concrete 
cases  and  to  provide transparence. 

Article  4:  Intra-Community  infringements 

This  Article  establishes  the  principle  of the  mutual  recognition  of qualified  entities  in  the 
framework  of  the  procedural  structures  existing  at  national  Ievel  (paragraph  1 ).  The 
establishment of this  principle,  according to this  Article,  allows: 

the  facilitation  of the  search  för  a  "correspondent"  having  equivalent  powers  and  the 
creation of the conditions för  better cross-border cooperation;  and 

the creation of the  conditions whereby  a qualified  entity  representing interests affected 
by  an  infringement  originating  in  another  Member  State  ( an  "intra-Community" 
infringement)  can  bri.ng  an  action  directly  to  a court  or competent authority 

In  practice,  Article  4 provides two  possibilities to the latter entity.  They  may: 

ask  a qualified entity  in the Member State having jurisdiction to seize that jurisdiction; 
or 

directly  seize  the  court  having  jurisdiction,  in  application  of the  principle  of mutual 
recogni tion. 

Since  certain  Member  States  may  "prefer"  the  first  option,  the  second  paragraph  of Article  4 
allows them  to  provide that the first  procedure must be invoked  initially. 

11 

However,  if no national  entity  is abte, or willing to act,  direct seisure by  the "föreign"  qualified 
entity  is  the  only  solution. 

To this end,  the Article makes it incumbent on Member States that stipulate the use of the first 
option  as  an  initial  step  to  give  the  qualified  entities  a  reasonable  time-limit  within  which  to 
react,  so  that  the  action  för  an  injunction  can  achieve  its  objectives. 

Article  5:  Prior  notification 

Article  5  allows  Member  States  to  maintain  (or  introduce)  a  pre-litigation  procedure,  with  a 
view to allowing the defendant to terminate the infringement "spontaneously"; depending on the 
circumstances,  this may  be take the förm  of a mandatory or optional  "prior"  warning issued by 
the  party  that intends to bring the  action  för  an  injunction. 

Since  the  qualified  entities  in  other  Member  States  may  not  be  familiar  with  the  modalities 
( or  even the existence) of such  a procedure,  the second  paragraph provides that the modalities 
goveming prior notifications be published in the Official Joumal of the European Communities. 
To this  end,  these  modalities  must be notified by  the Member  States to the  <:;ommission. 

Article 6:  Reports 

The Report mentioned in  this Article will  enable an  overview of the operation of the Directive, 
and  report  on  the possible  enlargement of its  scope  by  other Community  acts,  to be obtained. 

Article  8:  Final  provisions 

Article  8 contains the classical  provisions  conceming transposition. 

12 

Actions  for  an  injunction  in  regard  to  the  protection  of the  collective  interest  of consumers  in  the 
Member  States  of the  European  Union  (status:  31  March  1995) 

COUNTRIES 

SOURCE 

Belgium 

1)  Act of 14/7/91  (MB  29/8/91) 

2)  Act of 12/6/91  (MB  9/7 /9 l) 
3)  Act of 4/12/90  (MB  22/8/90) 
4)  Act of 21/10/92  (MB  17111/92) 
5)  Act of 16/2/94  (MB  l/4/94) 

Marketing Practices Act  197 5 (last 
amendment:  l  June  1994) 

Denmark 

Germany 

1)  UWG  1909  (as amended in  1965  and 

CAUSA PETENDI 

QUALIFIED  ENTITY 

1)  All  infringements  of the law on commercial 
practices,  including misleading advertising 

2)  Consumer credit 
3)  Financial services 
4)  Advertising  för  the  liberal  professions 
5)  Package holidays 

All  associations whose  pwpose is  to  protect 
consumers'  interests and which have  legal 
personality,  provided they  are  represented on the 
Com,1.llller  Council or approved by  the  lvfinister för 
Economic  Affairs 

All  infringements of the  law on commercial 
practices 
1)  All  infringements covered by  Articles  1,  3,  4,  6,  Associations having  legal capacity whose  task,  as 

The  consumers'  ombudsmen 

1987) 
2)  AGB  1976 

7,  8 of the  Competition Act 

2)  Unfair terms 

set out in their articles of association,  includes 
protection of consumers'  interests by  providing 
information,  by  providing advice  (UWG);  + 
members must include  active  associations or 
associations whose  membership includes at least 
75  natural persons  (AGB) 

Act No 2000/91  (ETK  24/12/91) as 
amended by  Act No  2251/94  (ETK 
16/11/94) 

Any  unlawful practice affecting the  general  interests  Consumers'  associations with at least 500  acti,,e 
of consumers (Act No  2251/94  contains a non-
members which have been registered for  at least 
exhaustive  list of infringements) 
two years in the  relevant register 

1)  Act No  34/1 ~98  of 11/1 1/88  (BOE 

1) 

Illegal advertising 

14/11/88) 

2)  Act No  3/1991  of 10/1/91  (BOE 

2)  Any  act which  is  directly  in breach of good 

11/1/91) 

faith  (clausula general  : Article  5) 

Associations whose  purpose,  according to  their 
articles of association,  is  to  protect consumers, 
provided the  "act of unfair competition directly 
affects  consumer interests"  Article  19) 

Act No  88-14  of 5/1/1988  (OJ  6/1/88)  (for  Direct or indirect harm to  the  collective  interests of  Approved associations  (see  Decree  88-586  of 6 
the  collective  protection of individual rights:  consumers 
Act No  92-60  of 18/1/1992) 

Unlawful  actions or unf air terms 

May  1988) 

Greece 

_Spain 

. 

,- -
Franc~ 

Ireland 

Consumer Information Act 

"Practices that are,  or are  likely  to  be,  misleading to  Director of Consumer Affairs 
th.e  public" 

13 

COUNTRlES 

SOURCE 

.... = ..... ~ 

_, 

CAUSA PETENDI 

QUALIFIED  E1'1ITY 

Italy 

1)  Legislative  Decree  of 25/ l / 1992  No  7 4 
2)  Act  549  of 28/ 12/93 

1)  Misleading  adYertising 
2)  Protection of föe  ozone  layer and the 

1)  All  consumers and consumer 6rganizations 
2)  All  consumer organizations or environmental 

Luxembourg 

1)  Act of 25/8/83 
2)  Act of 27/11/86 

environment 

~- . 

~ 

1)  Cnfair terms 
2)  Unfair comm~rcial practices 

Netherlands 

1)  Article  6  : 196  of the  Civil  Code  (BW) 
2)  Article  6  : 240  of the  Civil Code  (BW) 
3)  Wet  persoons-registratie 
4)  Articles  3  : 305a  and 3  : 305b of the  BW  4) 
(Act  of 6.4, 1994~  entry  into  force,  1.7.1994) 

1)  Misleading advertising 
2)  Unfair terms 
3)  Protection of privacy  (rectification of files) 

''General"  action 

protection organizations 

Consumer associations represented  at the 
Luxembourg  Price  Commission 

Associations having  legal personality  whose  tasks 
include  promotion of consumer interests. 

Austria 

1)  Consumentenschutzgesetz  1979  (§§  28 

1)  Cnfair tenns 

and 29) 

1)  VKI  (V erein fur  Konsumenteninformation)  and 

"Chambers of the  Social Partners'' 

2)  UWG  (Act on unfair competition) 

2)  Unfair t1dvertising,  unfair  competition 

2)  "Chambers of the  Social Partners  (consume:fs 

Portugal 

Decree No  446/85  of 25/10/1985 

Unfair terms 

being represented in the 
"Bundesarbeitskammer") 

Representative  associations of consumers under the 
terms of the  relevant legislation 

Finland 

Consumer Ombudsman Act 

Sweden 

Consumer Ombudsman Act 

', 

United 
Kingdom 

Fair Trading  Act  1973 

Any  practice  which  infringes  provisions designed to  Consumer Otnbudsman 
protect the  collective  interest of consumers 

Any  practice  which  inf:r.nges  provisions designed to  Consumer Ombudsman 
protect the  collecrive  interest of consumers 

Any  practice  which is  detrimental to  consumer 
interests  in  the  United Kingdom and must be 
regarded as  unfair to  the  consumer 

Director General  of Fair Trading 

14 

Proposal  för  a 
EUROPEAN P ARLIAMENT  AND  COUNCIL DIRECTIVE 

on  injunctions för the  protection of constimers'  interests 

THE  EUROPEAN PARLIAMENT  AND  THE  COUNCIL  OF  THE  EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Arti cl e  1 00a  thereof, 

Having  regard  to the  proposal  from  the Commission<1>, 

Having  regard  to the  opinion  of the  Economic  and  Social  Committee(2), 

Acting  in  accordance  with  the  procedure  referred  toin Article  189b  of the  Treaty, 

Whereas  certain  Community  directives,  listed  in  the  schedule  annexed  to  this  Directive,  lay 
down  rules  with  regard  to  protection  of the  economic  interests of consumers; 

• Whereas  current  mechanisms  available  both  at  national  and  at  Community  level  för  ensuring 
compliance  with  those  directives  do  not  always  allow  the  effects  of infringements  of their 
provisions to  be corrected in good time  to  protect consumers'  interests; 

Whereas,  as  far  as  the  restraint  of unlawful  practices  is  concemed,  the  efficacy  of national 
measures transposing those Directives is  thwarted  when  those practices  have  their effects  in  a 
Member  State other than  the  country  in  which  they  originate; 

Whereas  those  difficulties  can  disrupt  the  smooth  functioning  of the  intemal  market,  their 
consequence  being that  it  is  sufficient to  move  the  source of an  unlawful  practice in  order to 
place it out of reach of ali  forms of redress;  whereas this constitutes a distortion of competition 
that is harmful to the great majority of firms which comply with the provisions of national law; 

Whereas those difficulties are likely to diminish consumer confidence in the intemal market and 
may have discriminatory effects on organizations representing consumers adversely affected by 
a practice that infringes  Community  law; 

Whereas  those  practices  often  extend  beyond  the  frontiers  of the  Member  States,  which  is, 
indeed,  the reason  för  approximating the  systems of substantive law in  question; 

(l) 

(2) 

15 

Whereas,  there  is  thus  an  urgent need  för  some  degree  of coordination  of national  provisions 
designed to enjoin the cessation of the aboveme~tioned unlawful  practices,  so that the existing 
means of redress can take effect,  irrespective of the country. in which the unlawful  practice has 
had  its effects; 

Whereas  the  objective  of .the  action  envisaged  can  only  be  attained  by  the  Community 
legislature;  whereas it is  thereföre incumbent on  the  Community  legislature to act~ 

Whereas the third paragraph of Article 3b of the Treaty makes it incumbent of the Community 
not  to  go  beyond  what  is  necessary  to  achieve  the  objectives  of the  Treaty;  whereas,  in 
accordane  with  that  Article,  the  specific  features  of certain  national  legal  systems  must  be 
respected;  whereas that condition can be met by leaving Member States free to choose _between 
different options having  equivalent effect; 

Whereas  one  option  should  consist  in  requiring  an  independent  public  body,  specifically 
responsible för the protection of consumer interests and/or competition matters, to exercise the 
rights  of action  set  out in this  Directive; 

Whereas the other- option should provide för the exercise of those rights by organizations which 
have  a legitimate  interest in  protecting  consumers,  or by  organizations  representing  firms,  in 
accordance  with  criteria laid  down  by  national  law; 

• 

Whereas  Member  States  should  be  able to C(?mbine  those· two options; 

Whereas  Member  States  should  designate  at  national  level  the  bodies  and/or  organizations 
qualified för the purposes of this Directive;  whereas the principle of mutual recognition should 
be  applied  to the  bodies  and/or organizations thus  certified  by  Member  States; 

Whereas it is  incumbent on  the  Member  States to corhmunicate to the Commission the list of 
bodies  and/or  organizations  thus  qualified  för  the  purposes  of this  Directive,  as  well  as  any 
changes  to  these  national  lists;  whereas  it  is  the  business  of the  Commission  to  ensure  their 
publication  in  the  Official  Joumal  of the European  Communities; 

Whereas this Directive should be without prejudice to the mies of private intemational law and 
the  conventions in  förce  between the Member  States; 

Whereas Member States should be able to require that a prior notification be issued by the party 
that  intends to bring an  action.för an  injunction,  in  order to give the defendant an  opportunity 
to  bring  the  contested  infringement to an  end; 

Whereas the  application • of this  Directive  should  not  prejudice the application  of Community 
competition rules, 

16 

HAVEADC 

i)lRFCTIVE: 

Article  1 

Scope 

1. 

2. 

The  purpose  of this Directive is to coordinate the laws,  regulations and  administrative 
provisions of Mernber States -relating to certain remedies designed to protect consumers' 
interests,  so  as  to ensure the smooth functioning  of the intemal  market. 

For the  purposes  of this Directive,  an  infringement  shall  mean  any  act contrary to the 
directives  listed  in  the  Annex  and  transposed  into  the · intemal  legal  order  of  the 
Member States which  harms consumers'  interests. 

Article  2 

Actions  for  an  injundion 

1: 

Member  States  shaU • designate  the  court  or  authority  competent  to  mle  on  the 
proceedings  commenced  by  the  qualified  entities  within  the  meaning  of  Article  3, 
and  seeking: 

(a) 

(b) 

( c) 

an  order,  given at very  short notice,  and where appropriate by  way  of summary 
procedure,  requiring  the  cessation  of  any  act  that  is  to  be  regarded  as 
an  infringernent; 

, 

wher-e  appropriate,  adoption ,of the measures needed to rectify the effects of the 
infringement,  including publication  of the decision; 

an  order  against  the  losing  party  för  payment  to  the  plaintiff,  in  the  event  of 
failure to comply with the decision within a tim~limit specified by the authority, 
of a  fixed  amount  för  each  day's  delay  or  any  other  amount  provided  för  in 
national  legislation,  with a view to ensuring compliance with  the decisions. 

- 2. 

When  the  action  may,  pursuant  to  a convention,  be brought  in  a  Member  State  other · 
than  the  one  whose  legislation  has  allegedly  been  infringed,  the  competent  authority 
hearing  the  case  shall  take  the  same  measures  as  are  laid  down  för  infringernents  of 
national  legislation. 

17 

Article  3 

Entities qualified  to  bring an  action 

1. 

For the purposes of this Directive,  a "qualified entity"  means any  body  or organization 
which, according to national law, has a legitimate interest in ensuring that the provisions 
referred  to  in  Article  1 are  complied with,  in  particular: 

(a) 

(b) 

an  independent  public  body,  specifically  responsible  för  protecting  consumer 
interests,  in Member  States in  which  such bodies exists;  and/or 

organizations with a legitimate interest in  protecting consumer interests,  as well 
as  organizations  representing  firms  or federations  of firms,  in  accordance  with 
the  criteria laid  down  by  their national  law. 

F or the  purposes of this Directive,  and  without prejudice to the  rights granted to other 
entities under national  legislation,  each  Member State shall  draw up at national  level  a 
list of entities qualified to bring an  action under Article 2.  The bodies and organizations 
included in that  list  shall  receive a document certifying their right to appear beföre the 
relevant courts or authorities. 

The lists drawn up in accordance with paragraph 2,  as well  as any changes thereto, shall 
be  communicated  by  the  Member  States to the  Commission  and  shall  be published  in 
the  C Series of the  Official  Journal  of the European  Communities. 

Article 4 

Intra-Community  infringements 

Member  States  shall  take  the  measures  necessary  to  ensure  that  any  qualified  entity 
whose  interests  are  affected  by  an  infringement  originating  in  another  Member  State 
may  seise the  court  or competent  authority  referred  to in • Article 2,  on  presentation  of 
the document provided för  in  Article  3(2). 

Member States may  provide that direct seisure referred toin paragraph 1 shall be sought 
only  after a prior seisure  of the  qualified  entity  of the Member  State having territorial 
jurisdiction,  with  a view to ensuring that it brings the action  provided för  in  Article 2; 
in  such  case  Member  States  shall  give  the  qualified  national  entities  a  reasonable 
time-limit within  which to  react. 

Article  5 

Prior notification 

Member  States  may  introduce  or  maintain  in  force  a  requirement  that  the  party  that 
intends  to  seek  an  injunction  shall  issue  a  prior  notification  to  the  defendant; 
Member  States  which  rely  on  this  option  shall  ensure  that  the  rules  governing  prior 
notification  shall  pennit an  action  för  an  injunction within  a reasonable time-limit. 

2. 

3. 

1. 

2. 

1. 

18 

2. 

The rules goveming prior notification adopted by Member States shall be notified to the 
Commission  and  shall  be  published  in  the  C  Series  of  the  Official  Joumal  of 
the European  Communities. 

3. 

The  limitation  period  shall  cease to  run  once the prior notification  has  been  issued. 

Article 6 

Reports 

Every three years and  för the first  time no later than  31  December 2000 the  Commission  shall 
present  the  European  Parliament  and  the  Council  with  a  report  on  the  application  of this 
Directive. 

Article  7 

Provisions  for  wider action 

This  Directive  shall  not  prevent  Member  States  from  adopting  or  maintammg  in  förce 
provisions designed to grant representative organizations of consumers or professionals and/or 
public  bodies  and  any  other  person  concemed  more  extensive  rights  to  bring  action  at 
national  level. 

Article  8 

Implementation 

1. 

Member States shall  bring into förce the laws,  regulations and administrative provisions 
necessary to comply with this Directive by 31  December 1997.  They shall immediately 
införm  the  Commission  thereof. 

When  Member  States  adopt  these  provisions,  these  shall  contain  a  reference  to  this 
Directive  or  shall  be  accompanied  by  such  reference  ai' the  time  of their  official 
publication.  The  procedure för  such  reference  shall  be  adopted by  Member States. 

2. 

Member  States  shall  communicate  to  the  Commission  the  provisions  of national  law 
which they  adopt in  the field  covered  by  this Directive. 

Article  9 

Entry  into force 

This Directive shall  enter into förce on the twentieth day föllowing that of its publication in the 
Official  Joumal  of the European Communities. 

19 

Article  10 

Addressees 

This  Directive is  addressed  to the Member  States. 

Oone  at  Brussels, 

F or the European Parliament. 
The President 

F or the  Council 
The President 

20 

ANNEX 

LIST  OF  DIRECTIVES  COVERED BY  ARTICLE  1(2) 

Council  Directive  84/450/EEC  of  10  September  1984  (misleading  advertising); 
OJ No L  250,  19.9.1984,  p.  17; 

Council  Directive  85/577/EEC  of 20  December  1985  (contracts negotiated away  from 
businesspremises);  OJNoL 372,  31.12.1985,  p.  31; 

Council  Directive  87/102/EEC  of 22  December  1986  - OJ No L  42,  12.2.1987,  p.  48, 
as  amended  by  Council  Directive  90/88/EEC  of 22  February  1990  (consumer  credit) 
(OJ No  L 61,  10.3.1990,  p.  14); 

Council  Directive  of  89/552/EEC  of 3  October  1989  (on  the  pursuit  of television 
broadcasting  activities):  Articles  10  to  23;  OJ No  L 298,  17.10.1989,  p.  23; 

Council  Directive 90/314/EEC  of 13  June  1990 (package travel,  package holidays and 
package tours);  OJ  No  L  158,  23.6.1990,  p.  59; 

Council  Directive 92/28/EEC of 31  March  1992  (advertising of medicinal  products för 
human  use);  OJ No  L  113,  30.4.1992,  p.  13; 

Council  Directive 93/13/EEC  of 5 April  1993  (unfair terms in  consumer contracts); 
OJ  No L  95,  21.4.1993,  p.  29; 

European  Parliament  and  Council  Directive  94/47/EC  of 26  October  1994  (protection 
of purchasers  in  respect  of certain  aspects  of contracts  relating  to  the  purchase  of 
the  right  to  use  immoveable  properties  on  a  timeshare  hasis);  OJ  No  L  280, 
29.10.1994,  p.  83; 

European  Parliament and Council  Directive ...  of ...  (contracts negotiated at a distance). 

21 

IMPACT ASSESSMENT  FORM 

IMPACT  OF  THE  PROPOSAL  ON  BUSINESS 
AND  NOTABLY  SMALL  AND MEDIUM-SIZED ENTERPRISES  (SMEs) 

Title of the  proposal: 

Proposal för  a European Parliament and Council Directive on the 
coordination of the laws, regulations and administrative provisions 
of Member  States  relating  to  injunctions  för  the  protection  of 
consumers'  interests. 

Document  reference  number: 

The  proposal 

1. 

Bearing in  mind  the  subsidiarity  principle,  why  is  Community  legislation  necessary  in 
this  area and  what  are  its  main  aims? 

Community  legislation is necessary  in this area because of the compartmentalization of 
national  laws  goveming  available  means  of redress  in  the  event  of infringements  of 
national  law transposing  certain  Community  directives. 

If an  infringement of the law of one Member State originates in another Member States, 
existing actions  för  an  injunction  cannot  bite because: 

in  certain  Member  States  actions  may  be  brought  only  by  associations  that  are 
approved  at  national  level  (which .excludes  representative  associations  of the 
"target"  country); 

in  certain  Member  States  the  action  is  admissible  only  if  domestic  law 
is  infringed. 

When,  in applying the rules of private international law,  the contested practice concerns 
the legislation of another Member State and this legislation constitutes the transposal  of 
one and the same Community directive,  this "discrimination" constitutes a barrier to the 
smooth  functioning  of  the  single  market:  in  the  absence  of  measures  designed  to 
coordinate  national  laws  in  this area,  it is  sufficient to  "shift"  the  place of origin  of an 
illegal  practice 'to  be  out  of reach  of any  action  för  an  injunction  (Green  Paper • on 
consumer access to justice,  page  84). 

The  purpose  of  the  proposal  för  a  Directive  is  to  apply  the  principle  of  mutual 
recognition  to  entities  which  (on  the hasis  of the  national  legislation  goveming  them) 
may  bring  an  action  för  an  injunction  in  the  event  of infringement  of national  law 
transposing certain  Community  directives. 

22 

The impact on business 

2. 

Who  will  be atf ected  by  the  proposal? 

In  principle all  firms  may  be affected (irrespective of their size or sector of activity ),  if 
they are in a position to infringe national  law transposing certain Community di~ectives. 
But - and  above  ali  - they  are  affected  in  that the proposal  will  allow them  to  react to 
infringements committed by  unscrupulous competitors:  the entities  "qualified"  to bring 
an  action  (in  the  event  of  intra-Community  infringements)  include  "representative 
organizations of firms  or federations of firms,  in accordance with the criteria laid down 
by  their national  law"  (Article  3,  §  1,  b). 

ln  fact  certain  categories of firms  (för example  mail  order firms)  are more likely  to be 
aff ected  than  others  because they  more  frequently  encounter infringements  committed 
via a post office box opened across the border för the sole purpose of circumventing the 
applicable  national  legislation. 

The  representative  organization  of  these  firms  at  European  level  (EMOT A)  has 
expressed  its agreement  on  the  principles  governing  the  drafting  of the  proposal.  This 
was  done in  the context of the consultations on the Green Paper which is the  source of 
the Community  initiative (see  point  6). 

3. 

What  measures  must  firms  taken  to  comply  with  the  proposal? 

None.  The proposal  is designed to ensure the effective application of provisions which 
are  already  in  förce  and  does  not  introduce  any  supplementary  obligation. 

4. 

What  economic  effects is the  proposal  likely  to  have? 

The  proposal  may  contribute  to  a  healthier  competitive  environment  and  hence  help 
create jobs  since  it  will  make  it  possible  to  punish  certain  "marginal"  practices which 
are liable to distort competition, to the detriment of firms which respect the law in force. 

5. 

Does the  proposal  contain measures designed to take into account the specific situation 
of small  and  medium-sized  enterprises (different or reduced  requirements,  etc.)? 

None.  The obligation to provide a prior waming (Article 5) was however designed with 
an  eye  to  infringements  committed  on  the  hasis  of lack  of  införmation  about  the 
legislation in force (or because of an erroneous interpretation ofthis legislation) to allow 
the  firm  concerned  to  rectify  the effects of the  infringement of its  own  accord. 

This  hypothesis  is  more  likely  in  SMEs  than  in  large  firms  (whose  "legal  service"  is 
normally able to examine the legislation in force before addressing a "foreign" market). 

23 

Consultation 

6. 

Lists of organizations which  have been  consulted  on the  proposal  and  summary  of the 
essential  aspects  of their  position. 

The proposal  was not the subject of consultation as such,  because it represents the result 
of the  consultations  in  the  context  of Green  Paper  COM(93)  576  final.  The  position 
statements on  the  Green  Paper's  conclusions  include: 

EMOT A (European Mail  Order Traders  Association) 

"On  this  issue  we  fully  support the  views  as  expressed  by  EuroCommerce,  i.e.: 

possibility för consumer associations to bring cross-border actions för injunction 
(with  a clear definition  of such  an  organization); 

the  same  possibility  should  he  open  to  trade  associations  to  defend  collective 
interests  against unfair practices". 

EUROCOMMERCE: 

ln  the  Green  Paper  the  Commission  expJains  how  consumer  associations  may  use 
cross-border actions för  an injunction.  The trade associations also would like to he able 
to  defend their collective interests in  the event of unfair practices committed by  a firm 
established  in  another Memher State.  Hence EuroCommerce is keen to insist that this 
type  of action,  which  is  not designed  to  recover damages,  should  he  open  not  only  to 
consumers but also to  trade associations. 

24 

ISSN 0254-1475 

COM(95) 712 final 

DOCUMENTS 

EN 

10 

Catalop number  :  CB-C0-96-027-EN-C 

ISBN 92-77-99737-0 

Office for Official Publications of Che Europelll o.auam. 

L-2985 LuxemboutJ 

25