WRITTEN QUESTION E-4028/00 by Angelika Niebler (PPE-DE) to the Commission. Harmonisation of the law on advertising in the European Community.
Date: 2000-12-21
Institutions: European Parliament, Provisional data
Subjects: Germany, approximation of laws, competition law, electronic commerce, restriction on competition, sales promotion, trade restriction

3.7.2001

EN

Official Journal of the European Communities

C 187 E/111

Reply

(24 April 2001)

Under Community legislation, exemption from VAT and excise duty may be granted by way of diplomatic
privilege in accordance with the rules of customary international law, as codified by the 1961 Vienna
Convention on Diplomatic Relations. The Community is under a duty to abide by these rules. (See ECJ
judgment of 16 June 1998, paragraph 45).

In terms of the single market, supposing there were no longer felt to be any justification for granting
exemption to Member States(cid:146) missions to other Member States, current Community legislation would have
to be amended first, and this would require a unanimous Council vote on a Commission proposal.
However, this would presuppose that the Member States had agreed not to apply, as between themselves,
the relevant provisions of the 1961 Vienna Convention, which are binding on them under international
law. The Council has not received any indication to that effect, nor, to date, any Commission proposals for
amendment of the relevant exemption provisions of Directives 77/388/EEC (6th VAT Directive) and 92/
12/EEC (products subject to excise duty). Moreover, the Commission has made known (reply to Written
Question E-1996/99) that it does not intend to submit any proposals on this issue in the near future.

(2001/C 187 E/118)

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. (cid:145)buy one, get one for free(cid:146)). 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 Saarbr(cid:252)cken
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?

C 187 E/112

Official Journal of the European Communities

EN

3.7.2001

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 Commu-
nication (2), the Commission has long been aware that the different national regulations on commercial
communications (encompassing advertising, marketing, public relations (PR), sales promotion and sponsor-
ship) 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.

(2001/C 187 E/119)

WRITTEN QUESTION E-4029/00

by Caroline Jackson (PPE-DE) to the Commission

(21 December 2000)

Subject: HGV driving licence qualifications

One of the drivers involved in an accident on the M4 motorway between London and Bristol on
28 November was a 20-year-old Belgian driver who was driving a heavy goods vehicle. In the United
Kingdom, it is not possible for anybody aged 20 to hold a HGV licence. Can the Commission explain why
it is possible for drivers to drive in a specific country with qualifications which are less stringent than those
of that country(cid:146)s nationals? Can the Commission also indicate whether it has any intention of harmonising
such heavy goods vehicle driving qualifications?

Answer given by Mrs de Palacio on behalf of the Commission

(6 March 2001)

Provisions concerning the minimum ages for drivers engaged in the carriage of goods are laid down in
Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social
legislation relating to road transport (1). In particular, Article 5 of the Council Regulation establishes
minimum ages for obtaining of an heavy goods vehicles (HGV) licence.

(b) (cid:129) 21 years, or

(cid:129) 18 years provided that the person concerned holds a certificate of professional competence
recognised by one of the Member States confirming that he has completed a training course
for drivers of vehicles intended for the carriage of goods by road,
in conformity with
Community rules on the minimum level of training for road transport drivers.