Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests
Date: 1998-05-19
Institutions: Council of the European Union, European Parliament
Subjects: application of EU law, approximation of laws, consumer protection, infringement procedure (EU)

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Official Journal of the European Communities

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DIRECTIVE 98/27/EC OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL

on injunctions for the protection of consumers’ interests

of 19 May 1998

THE EUROPEAN PARLIAMENT AND THE COUNCIL
OF THE EUROPEAN UNION,

enforcement; whereas this constitutes a distortion
of competition;

Having regard to the Treaty establishing the European
Community, and in particular Article 100a 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 laid down in
Article 189b of the Treaty (3),

(1) Whereas certain Directives, listed in the schedule
annexed to this Directive,
lay down rules with
regard to the protection of consumers’ interests;

(2) Whereas current mechanisms available both at
national and at Community level
for ensuring
compliance with those Directives do not always
allow infringements harmful to the collective inter-
ests of consumers to be terminated in good time;
whereas collective interests mean interests which
do not include the cumulation of interests of indi-
viduals who have been harmed by an infringement;
whereas this is without prejudice to individual
actions brought by individuals who have been
harmed by an infringement;

(3) Whereas, as far as the purpose of bringing about
the cessation of practices that are unlawful under
the national provisions applicable is concerned, the
effectiveness of national measures transposing the
above Directives including protective measures that
go beyond the level required by those Directives,
provided they are compatible with the Treaty and
allowed by those Directives, may be thwarted where
those practices produce effects in a Member State
other than that in which they originate;

(4) Whereas those difficulties can disrupt the smooth
functioning of the internal market, their conse-
quence being that
to move the
source of an unlawful practice to another country
in order to place it out of reach of all forms of

is sufficient

it

(5) Whereas those difficulties are likely to diminish
consumer confidence in the internal market and
may limit the scope for action by organisations
representing the collective interests of consumers
or
responsible for
protecting the collective interests of consumers,
infringe
adversely
Community law;

independent public bodies

affected by practices

that

(6) Whereas those practices often extend beyond the
frontiers between the Member States; whereas there
is an urgent need for some degree of approx-
imation of national provisions designed to enjoin
the cessation of the abovementioned unlawful prac-
tices irrespective of
the country in which the
unlawful practice has produced its effects; whereas,
with regard to jurisdiction, this is without prejudice
to the rules of private international law and the
in force between Member States,
Conventions
while respecting the general obligations of
the
Member States deriving from the Treaty, in partic-
ular those related to the smooth functioning of the
internal market;

(7) Whereas the objective of the action envisaged can
only be attained by the Community; whereas it is
therefore incumbent on the Community to act;

(8) Whereas the third paragraph of Article 3b of the
Treaty makes it incumbent on the Community not
is necessary to achieve the
to go beyond what
objectives of the Treaty; whereas,
in accordance
with that Article, the specific features of national
legal systems must be taken into account to every
extent possible by leaving Member States free to
choose between different options having equivalent
effect; whereas the courts or administrative author-
ities competent to rule on the proceedings referred
to in Article 2 of this Directive should have the
right to examine the effects of previous decisions;

(1) OJ C 107, 13. 4. 1996, p. 3 and OJ C 80, 13. 3. 1997, p. 10.
(2) OJ C 30, 30. 1. 1997, p. 112.
(3) Opinion of the European Parliament of 14 November 1996

(OJ C 362, 2. 12. 1996, p. 236). Council common position of
30 October 1997 (OJ C 389, 22. 12. 1997, p. 51) and Deci-
sion of the European Parliament of 12 March 1998 (OJ C
104, 6. 4. 1998). Council Decision of 23 April 1998.

(9) Whereas one option should consist in requiring
one or more independent public bodies, specifi-
cally responsible for the protection of the collective
interests of consumers, to exercise the rights of

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action set out in this Directive; whereas another
option should provide for the exercise of those
rights by organisations whose purpose is to protect
the collective interests of consumers, in accordance
with criteria laid down by national law;

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

(10) Whereas Member States should be able to choose
between or combine these two options in desig-
nating at national level the bodies and/or organ-
isations qualified for the purposes of this Directive;

(11) Whereas for

the purposes of

intra-Community
infringements the principle of mutual recognition
should apply to these bodies and/or organisations;
whereas the Member States should, at the request of
their national
the
to
entities,
their
Commission the name and purpose of
national entities which are qualified to bring an
action in their own country according to the provi-
sions of this Directive;

communicate

The purpose of this Directive is to approximate the
1.
laws, regulations and administrative provisions of
the
Member States relating to actions for an injunction
referred to in Article 2 aimed at the protection of the
collective interests of consumers included in the Direct-
ives listed in the Annex, with a view to ensuring the
smooth functioning of the internal market.

For the purpose of this Directive, an infringement
2.
shall mean any act contrary to the Directives listed in the
Annex as transposed into the internal legal order of the
Member States which harms
the collective interests
referred to in paragraph 1.

Article 2

Actions for an injunction

(12) Whereas it is the business of the Commission to
ensure the publication of a list of these qualified
entities in the Official Journal of the European
to the
Communities; whereas, until a statement
contrary is published, a qualified entity is assumed
to have legal capacity if its name is included in that
list;

1. Member States shall designate the courts or adminis-
trative authorities competent
to rule on proceedings
commenced by qualified entities within the meaning of
Article 3 seeking:

(a) an order with all due expediency, where appropriate
by way of summary procedure, requiring the cessation
or prohibition of any infringement;

(13) Whereas Member States should be able to require
that a prior consultation be undertaken by the
party that intends to bring an action for an injunc-
tion, in order to give the defendant an opportunity
to bring the contested infringement to an end;
whereas Member States should be able to require
that this prior consultation take place jointly with
an independent public body designated by those
Member States;

(14) Whereas, where the Member States have estab-
lished that there should be prior consultation, a
deadline of two weeks after the request for consul-
tation is received should be set after which, should
the cessation of the infringement not be achieved,
the applicant shall be entitled to bring an action
administrative
before the competent court or
authority without any further delay;

(15) Whereas it

is appropriate that

the Commission
report on the functioning of this Directive and in
particular on its scope and the operation of prior
consultation;

(16) Whereas the application of this Directive should
application of Community

the

not prejudice
competition rules,

(b) where appropriate, measures such as the publication
of the decision, in full or in part, in such form as
deemed adequate
a
corrective statement with a view to eliminating the
continuing effects of the infringement;

the publication of

and/or

(c)

the Member State
insofar as the legal system of
concerned so permits, an order against
the losing
defendant for payments into the public purse or to
any beneficiary designated in or under national legis-
in the event of failure to comply with the
lation,
decision within a time-limit specified by the courts or
administrative authorities, of a fixed amount for each
day’s delay or any other amount provided for in
national legislation, with a view to ensuring compli-
ance with the decisions.

2.
This Directive shall be without prejudice to the rules
of private international law, with respect to the applicable
law, thus leading normally to the application of either the
law of the Member State where the infringement ori-
ginated or the law of the Member State where the in-
fringement has its effects.

Article 3

Entities qualified to bring an action

For the purposes of this Directive, a ‘qualified entity'
means any body or organisation which, being properly
constituted according to the law of a Member State, has a
legitimate interest in ensuring that the provisions referred
to in Article 1 are complied with, in particular:

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(a) one or more independent public bodies, specifically
responsible for protecting the interests referred to in
Article 1, in Member States in which such bodies exist
and/or

(b) organisations whose purpose is to protect the interests
referred to in Article 1, in accordance with the criteria
laid down by their national law.

two weeks after the request for consultation is received,
the party concerned may bring an action for an injunc-
tion without any further delay.

The rules governing prior consultation adopted by
2.
Member States shall be notified to the Commission and
shall be published in the Official Journal of the Euro-
pean Communities.

Article 4

Intra-Community infringements

1.
Each Member State shall take the measures necessary
to ensure that, in the event of an infringement originating
in that Member State, any qualified entity from another
Member State where the interests protected by that quali-
fied entity are affected by the infringement, may seize the
court or administrative authority referred to in Article 2,
on presentation of the list provided for in paragraph 3.
The courts or administrative authorities shall accept this
list as proof of the legal capacity of the qualified entity
without prejudice to their right to examine whether the
purpose of the qualified entity justifies its taking action in
a specific case.

2.
For the purposes of intra-Community infringements,
and without prejudice to the rights granted to other enti-
ties under national legislation, the Member States shall, at
the request of their qualified entities, communicate to the
Commission that these entities are qualified to bring an
action under Article 2. The Member States shall inform
the Commission of the name and purpose of these quali-
fied entities.

3.
The Commission shall draw up a list of the qualified
entities referred to in paragraph 2, with the specification
of their purpose. This list shall be published in the Offi-
cial Journal of the European Communities; changes to
this list shall be published without delay, the updated list
shall be published every six months.

Article 6

Reports

1.
Every three years and for the first time no later than
five years after the entry into force of this Directive the
Commission shall submit to the European Parliament
this
and the Council a report on the application of
Directive.

In its first report the Commission shall examine in

2.
particular:

(cid:190) the scope of this Directive in relation to the protec-
tion of the collective interests of persons exercising a
commercial, industrial, craft or professional activity;

(cid:190) the scope of

this Directive as determined by the

Directives listed in the Annex;

(cid:190) whether

the prior consultation in Article 5 has
contributed to the effective protection of consumers.

Where appropriate, this report shall be accompanied by
proposals with a view to amending this Directive.

Article 7

Provisions for wider action

This Directive shall not prevent Member States from
adopting or maintaining in force provisions designed to
grant qualified entities and any other person concerned
more extensive rights to bring action at national level.

Article 5

Prior consultation

Article 8

Implementation

1. Member States may introduce or maintain in force
provisions whereby the party that intends to seek an
injunction can only start this procedure after it has tried
to achieve the cessation of the infringement in consulta-
tion with either the defendant or with both the defendant
and a qualified entity within the meaning of Article 3(a)
of the Member State in which the injunction is sought. It
shall be for the Member State to decide whether the party
seeking the injunction must consult the qualified entity.
If the cessation of the infringement is not achieved within

1. Member States shall bring into force the laws, regula-
tions and administrative provisions necessary to comply
with this Directive no later than 30 months after its entry
into force. They shall immediately inform the Commis-
sion thereof.

When Member States adopt these measures, they shall
contain a reference to this Directive or shall be accompa-
nied by such reference on the occasion of their official
publication. The methods of making such reference shall
be adopted by Member States.

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

Article 10

Addressees

Article 9

Entry into force

This Directive is addressed to the Member States.

Done at Brussels, 19 May 1998.

This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of
the European Communities.

For the European Parliament

For the Council

The President

J.M. GIL-ROBLES

The President

G. BROWN

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ANNEX

LIST OF DIRECTIVES COVERED BY ARTICLE 1 (*)

1. Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations
the Member States concerning misleading advertising (OJ L 250,

and administrative provisions of
19.9.1984, p. 17).

2. Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts

negotiated away from business premises (OJ L 372, 31.12.1985, p. 31).

3. Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and
administrative provisions of the Member Sttes concerning consumer credit (OJ L 42, 12.2.1987, p. 48), as
last amended by Directive 98/7/EC (OJ L 101, 1.4.1998, p. 17).

4. Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by
law, regulation or administrative action in Member States concerning the pursuit of television broadcasting
activities: Articles 10 to 21 (OJ L 298, 17.10.1989, p. 23 as amended by Directive 97/36/EC (OJ L 202,
30.7.1997, p. 60)).

5. Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ

L 158, 23.6.1990, p. 59).

6. Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use

(OJ L 113, 30.4.1992, p. 13).

7. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993,

p. 29).

8. Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection
of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use
immovable properties on a timeshare basis (OJ L 280, 29.10.1994, p. 83).

9. Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of

consumers in respect of distance contracts (OJ L 144, 4.6.1997, p. 19).

(*) Directive Nos 1, 6, 7 and 9 contain specific provisions on injunctive actions.