Proposal for a European Parliament and Council Regulation concerning sales promotions in the Internal Market
Date: 2001-10-02
Institutions: European Commission
Subjects: common commercial policy, consumer protection, domestic market, sales promotion, trade restriction

26.3.2002

EN

Official Journal of the European Communities

C 75 E/11

Proposal for a European Parliament and Council Regulation concerning sales promotions in the
Internal Market

(2002/C 75 E/02)

(Text with EEA relevance)

COM(2001) 546 final (cid:151) 2001/0227(COD)

(Submitted by the Commission on 4 October 2001)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 95(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

Whereas:

(1) In accordance with Article 14(2) of the Treaty, the Internal
Market comprises an area without internal frontiers in
which the free movement of goods, services and the
freedom of establishment are ensured; the development
of
sales
the use and commercial communication of
promotions within the area without internal frontiers is
vital
cross-border
activities.

the development of

to promote

they are particularly important

(2) The use and communication of sales promotions are key
to the growth and development of all businesses in the
Community;
tools for
small and medium-sized enterprises who rely on such
affordable practices as inputs and outputs to develop
their cross-border activities; such promotions therefore
stimulate competitiveness in the European economy and
accordingly allow consumers
from greater
choice and competitive prices.

to benefit

to

take

operators

(3) Community law and the characteristics of the Community
legal order are a vital asset to enable European citizens
advantage, without
and
consideration of borders, of the opportunities offered by
the use and communication of sales promotions;
this
Regulation therefore has the purpose of ensuring a high
level of Community legal integration in order to establish
a real area without
internal borders for the use and
communication of sales promotions.

full

(4) The use and communication of sales promotions within
the Community is hampered by numerous identified legal
obstacles (1)
the Internal
to the proper functioning of

Market which make less attractive the exercise of
the
freedom of establishment and the freedom to provide
services; these obstacles arise from divergences in legis-
lation and from the legal uncertainty as to which national
rules apply to the use and communication of
sales
promotions; a relatively narrowly defined set of rules on
sales promotions are giving rise to a multiplicity of
Internal Market barriers affecting a wide range of busi-
nesses. The removal of these barriers will facilitate the free
movement of goods associated with the sales promotion.

in the

to cross-border

to those objectives;

services and goods or

(5) In the absence of uniform rules at Community level,
obstacles
the
freedom of establishment might be justified in the light
of the case-law of the Court of Justice as long as they seek
to protect recognised public interest objectives and are
light of
proportionate
Community objectives, of the provisions of the Treaty
relating to free movement, of secondary Community
law, and in accordance with the Commission’s policy on
commercial communications (2), such obstacles can only
be eliminated by establishing uniform rules at Community
level
at
Community level to the extent necessary for the proper
functioning of the Internal Market; other restrictions have
been identified as requiring replacement by less restrictive
measures; remaining restrictions relating to the use and
communication of sales promotions should be submitted
to the principle of mutual recognition of national legis-
lation.

certain legal

clarifying

concepts

and by

(6) Given the specific nature of the problems to be addressed,
in particular, the need to tackle in a very targeted manner
a small number of issues, which affect a wide variety of
services, there is a need to establish through a Regulation
a few precise, unconditional and uniform Community
requirements. The use of a Regulation strengthens legal
security,
for customers and small and
medium-sized companies.

in particular,

(7) This Regulation covers promotional contests or games
where the purpose is to encourage the sale of goods or
than gambling activities, and where
services, other
serve only to acquire the
payments,
promoted goods or
services. This excludes gambling
activities, such as games of chance, lotteries and betting
transactions, which involves wagering a stake with
monetary value, from the scope of application.

they arise,

if

(1) Green paper on (cid:145)Commercial communications

in the Internal

Market(cid:146): COM(96) 192 final. 18 May 1996.

(2) (cid:145)The follow-up to the Green paper on Commercial Communications
in the Internal Market(cid:146), Communication from the Commission,
COM(1998) 121 final. 4 March 1998.

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(8) By dealing only with those specific identified matters
which give rise to problems for the Internal Market, this
Regulation is fully consistent with the need to respect the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality
and the Commission’s policy on commercial communi-
cations, which through the work of the Expert Group
on commercial communications, has sought
to apply
this principle in as transparent and precise a manner as
possible, the measures provided for in this Regulation are
strictly limited to the minimum needed to achieve the
the Internal
objective of
functioning of
is necessary,
Market; where action at Community level
and in order
truly
without internal frontiers as far as sales promotions are
concerned, the Regulation must ensure a high level of
protection of objectives of general interest, in particular
the protection of minors, consumer protection and in that
context fair trading and the protection of public health.

to guarantee an area which is

the proper

comparative

safety (3), Directive 95/46/EC of

(9) This Regulation complements the Community acquis,
which is applicable to the use and communication of
sales promotions, which covers,
in particular, Council
Directive 84/450/EEC concerning misleading advertising
advertising (1),
Council Directive
and
89/552/EEC concerning the pursuit of television broad-
casting activities (2) Council Directive 92/59/EEC on
the
general product
European Parliament and of the Council on the protection
of individuals with regard to the processing of personal
data and on the free movement of such data (4), Directive
97/66/EC of the European Parliament and of the Council
concerning the processing of personal data and the
telecommunications
in
protection
sector (5) Directive 98/6/EC of the European Parliament
and of the Council on consumer protection in the indi-
cation of prices of products offered to consumers (6),
Directive 98/27/EC of the European Parliament and of
the Council on injunctions
the protection of
for
interests (7), Council Directive 92/28/EEC on
consumers’
advertising of medicinal products (8), Directive
the
1999/44/EC of
the
the sale of consumer
Council on certain aspects of
goods and associated guarantees (9), Council Recommen-
and
dation
adolescents(cid:146) (10)
the

the European Parliament and of

children
2000/31/EC of

and Directive

(cid:145)Drinking

privacy

alcohol

the

by

of

of

(1) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive
97/55/EC of the European Parliament and of the Council (OJ L
290, 23.10.1997, p. 18).

(2) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive

97/36/EC (OJ L 202, 30.7.1997, p. 60).

(3) OJ L 228, 11.8.1992, p. 24.
(4) OJ L 281, 23.11.1995, p. 31.
(5) OJ L 24, 30.1.1998, p. 1.
(6) OJ L 80, 18.3.1998, p. 27.
(7) OJ L 166, 11.6.1998, p. 51. Directive as amended by Directive

2000/31/EC (OJ L 178, 17.2.2000, p. 1).

(8) OJ L 113, 30.4.1992, p. 13.
(9) OJ L 171, 7.7.1999, p. 12.
(10) COM(2000) 736 final.

European Parliament and of the Council on electronic
commerce (11).

(10) For purposes of enforcement this Regulation has strong
complementary links with Council Directive 84/450/EEC;
non-compliance with the information requirements of this
Regulation shall be considered as breaches of the ban on
misleading advertising established by Council Directive
84/450/EEC.

for

(11) This Regulation provides for a high level of consumer
protection in order to enhance trust and confidence in
sales promotions by setting
the Internal Market
down a detailed number of
information requirements;
these provisions ensure that the commercial communi-
cations relating to sales promotions are transparent and
that an individual
interested in a communicated sales
promotion will be able to easily obtain all the relevant
information announced in that communication. In view of
the need to protect minors and public health,
it also
makes the use and commercial communication of sales
promotions subject to a number of harmonised targeted
bans and precise restrictions.

services as well as

(12) The heightened protection that the Regulation provides by
the establishment of these uniform rules allows for the
removal of certain national bans or limitations. This
is necessary to eliminate the barriers to estab-
removal
lishment and the export of
the
substantial distortions of competition that they give rise
to; other cross-border barriers to the use and commercial
communication of sales promotions are submitted to the
the principle of mutual recognition of
application of
national legislation; requirements at national level which
are subject
recognition cover only those
relating to the use of sales promotions or references to
them in commercial communications and not general
requirements on advertising such as those relating to
for
health and
certain
claims,
products and services, nor
relating to
other marketing practices.

advertising
requirements

to mutual

ethical

or

(13) Without verifiable prior consent this Regulation, in order
to protect the physical health of children and consistent
free
with Directive 92/59/EEC, prohibits promoters of
gifts
promotional
products to children unless the promoters ensure that
the products dispatched are not of a nature, in view of
their packaging (notably
their
through reliance on child-proof packaging),
they
could harm a child’s physical health.

intrinsic qualities or

from dispatching

premiums

that

(11) OJ L 178, 17.7.2000, p. 1.

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(14) In view of

the recognised need for reasons of public
health to prevent
inciting children and adolescents to
drink alcoholic beverages; given the objective underlying
to encourage
the use of
sales promotions which is
this
consumption of promoted products and services,
Regulation bans the offer of free alcoholic beverages as
promotional gifts to minors.

(15) Commercial communications of

for
tobacco products and restrictions thereon are addressed
in the proposed Directive on advertising and sponsorship
of tobacco products (1).

sales promotions

in the

event of

to ensure

(16) This Regulation lays down a number of obligations on
promoters
them
that,
breaching obligations relating to the use and communi-
cation of sales promotions, complainants will be able to
identify the promoter and have easy access to in-house
redress systems; the provisions of this Regulation will also
encourage best-practice in the field of in-house customer
complaint schemes as well as promote and facilitate the
access to affordable out-of-court redress schemes,

HAVE ADOPTED THIS REGULATION:

Article 1

Object

compiled in an independent manner, particularly
when this is without financial consideration;

(b)

(cid:145)sales promotion(cid:146): a discount, a free gift, a premium or an
opportunity to participate in a promotional contest or
game;

(c)

(cid:145)promoter(cid:146): a user of a sales promotion, meaning a
company, organisation or person by whom or on whose
behalf a sales promotion is undertaken;

(d)

company, organisation or person who
(cid:145)customer(cid:146):
purchases the good or service promoted by the promoter;

a

(e)

(cid:145)discount(cid:146): the temporary offer of:

(cid:151) a price reduction;

(cid:151) an additional quantity of the identical good or service
purchased which is offered at no additional cost to the
purchaser;

(cid:151) a coupon or voucher entitling a purchaser of a good or
service to a reduction on the price of an identical good
or service on a subsequent purchase;

This Regulation establishes
rules concerning the use and
commercial communication of sales promotions in order to
ensure the proper functioning of the internal market.

(f)

(cid:145)free gift(cid:146): the temporary offer to provide free of charge a
good or service independently of an obligation to purchase
a good or service of an identical type;

Article 2

Definitions

For the purposes of this Regulation:

(a)

(cid:145)commercial communication(cid:146): any form of communication
designed to promote, directly or indirectly,
the goods,
services or image of a company, organisation or person
pursuing a commercial, industrial or craft activity or exer-
cising a regulated profession. The following do not
constitute commercial communications:

(cid:151) information allowing direct access to the activity of the
in particular a

company, organisation or person,
domain name or an electronic-mail address; and

(g)

(cid:145)premium(cid:146): the temporary offer to provide a good or service
of a type which is not identical to the good or service with
which it is offered for purchase;

(h) (cid:145)promotional contest(cid:146): the temporary offer to participate in
a contest which may be subject to a prior obligation to
is
purchase a good or service,
designated primarily by means of skill;

in which the winner

(i)

(cid:145)promotional game(cid:146): the temporary offer to participate in a
in which the winner is designated primarily by
game,
chance and no fee is required to participate and where
to a prior obligation to
participation may be subject
purchase. Such promotional games
include
shall not
gambling activities which involve wagering a stake with
including lotteries
monetary value in games of chance,
and betting transactions;

(j)

(cid:145)child(cid:146): a person under the age of 14 years;

(cid:151) communications
the

image of

relating to the goods,
services or
company, organisation or person

(1) COM(2001) 283 final.

(k)

(cid:145)alcoholic beverages(cid:146):
alcoholic beverages within the
meaning of Articles 2, 8, 12, 17 and 19 of Directive
92/83/EEC;

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(l)

(cid:145)general prohibition on the use or commercial communi-
cation of a sales promotion(cid:146): a prohibition that
is not
specific to a particular type of promoted good or service;

A promoter is prohibited from providing directly to a
2.
child a free gift or a premium if it is of a nature that could
harm its physical health.

(m) (cid:145)Non-public regulatory body(cid:146): an organisation or association
not governed by public law, exercising its legal autonomy
to regulate in a collective manner economic activities; and

(n) (cid:145)sale below cost(cid:146): a discount consisting of a sale of a
product or service below the net invoice price inclusive
of carriage, insurance and other delivery costs as well as
tax.

Article 3

The use and commercial communication of sales
promotions

1. Member States or non-public regulatory bodies shall not
impose:

(cid:151) a general prohibition on the use or commercial communi-
cation of a sales promotion unless required by Community
law;

(cid:151) a limitation on the value of a sales promotion except for

discounts on books;

(cid:151) a prohibition on discounts preceding seasonal sales; or

(cid:151) a requirement

requirement having equivalent effect,
commercial communication of a sales promotion.

to obtain prior authorisation, or any
the use or

for

2. Member States or non-public regulatory bodies shall
neither restrict the freedom to provide services nor restrict
the free movement of goods benefiting from the use of sales
promotions on the grounds of the use of sales promotions and
references to them in commercial communications.

Article 4

Information to be provided in respect of sales promotions

In addition to other information requirements deriving from
Community law, the promoter shall ensure that the commercial
communication of a sales promotion complies with the
requirements set out in the Annex to this Regulation. All the
information requirements
in the Annex shall be
set out
provided in a clear and unambiguous manner. The information
that the promoter must make available to the client on request
must be available on the launch of
sales
promotion.

the relevant

A promoter is prohibited from providing a free gift
3.
consisting of an alcoholic beverage to individuals under the
age of 18.

Article 6

Redress

A promoter shall at the request of a court or adminis-
1.
trative authority, provide evidence as to the accuracy of the
information referred to in Article 4.

2.
A promoter shall provide, free of charge, an address to
which complaints can be directed to him. Where a promoter
provides a telephone advice service in connection with a sales
promotion, the promoter shall ensure that this is provided free
of charge and that appropriate resources are dedicated to its
operation.

A promoter shall respond to an initial complaint relating
3.
the promoter’s
to a sales promotion, within six weeks of
receipt of
that complaint. The initial complaint and the
response shall be in writing, which may include by electronic
means. The response shall be in the language of the communi-
cation of the sales promotion.

4.

A promoter shall:

(cid:151) indicate in the commercial communication relating to the
sales promotion any out of court dispute settlement system
or code of conduct that he/she subscribes to; and

(cid:151) make available upon request information concerning any

such dispute settlement system or code of conduct.

Article 7

Revision clause

Before the end of [. . .], the Commission shall submit to the
European Parliament and the Council a comprehensive report
on the application of the Regulation, accompanied, if appro-
priate, with a proposal for its revision.

Article 8

Article 5

Protection of children and adolescents

This Regulation shall enter into force on the [. . .] day following
that of its publication in the Official Journal of
the European
Communities.

1.
A promoter, when making a sales promotion, shall not
collect personal data from a child without the verifiable prior
consent from that child’s legal guardian.

This Regulation shall be binding in its entirety and directly
applicable in all Member States.

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INFORMATION TO BE PROVIDED IN RESPECT TO THE USE AND THE COMMERCIAL COMMUNICATION
OF SALES PROMOTIONS

ANNEX

1. ALL SALES PROMOTIONS

1.1. Information to be provided in the commercial communication:

(cid:151) an indication of the discount, free gift, premium, promotional contest or promotional game;

(cid:151) the price (inclusive of taxes) of the promoted good or service and any additional costs associated with freight,

delivery or postage;

(cid:151) the promoter’s identity;

(cid:151) the duration of the offer including the start and end date; and

(cid:151) where the offer is subject to conditions, an indication of where these conditions or any other information can

be obtained.

1.2. Information to be made available on request unconditional on purchase of the promoted product or

service:

(cid:151) the name and geographic address of the promoter; and

(cid:151) the terms and conditions relevant to the sales promotion.

2. DISCOUNTS

2.1. Information to be provided in the commercial communication:

(cid:151) the exact amount of the discount represented as either a percentage or a unit cost; and

(cid:151) an indication of a sale below cost.

2.2. Information to be made available on request unconditional on purchase of the promoted product or

service:

(cid:151) any conditions or limitations applicable to the discount; and

(cid:151) the preceding price of the promoted good or service and the length of time (including dates) that this

preceding price was applied.

2.3. Information to be made available on a coupon or voucher:

(cid:151) the cash value of the coupon or voucher;

(cid:151) any limitation on its use including its expiry date; and

(cid:151) the goods or services against which the coupon or voucher may be redeemed.

2.4. Information to be made available on request of a manufacturer or a service provider from whom goods or

services have been purchased:

(cid:151) information of a sale below cost in conformity with prior contractual agreements.

3.

FREE GIFTS AND PREMIUMS

3.1. Information to be provided in the commercial communication:

(cid:151) the actual value of the free gift or premium; and

(cid:151) any costs associated with obtaining the free gift or premium.

3.2. Information to be made available on request unconditional on purchase of the promoted product or

service:

(cid:151) any conditions or limitations applicable to the free gift or premium.

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4.

PROMOTIONAL CONTESTS AND PROMOTIONAL GAMES

4.1. Information to be provided in the commercial communication:

(cid:151) the value and nature of the prize;

(cid:151) the closing date for receipt of entries;

(cid:151) any geographical or personal restrictions such as location or age;

(cid:151) any requirements for proof of purchase;

(cid:151) the need to obtain permission to enter from an adult or employer;

(cid:151) any associated costs other than the purchase of the promoted good or service in the participation in the

promotional contest or promotional game; and

(cid:151) in the case of a promotional game, the actual or estimated odds of winning the prize.

4.2. Information to be made available on request unconditional on purchase of the promoted product or

service:

(cid:151) any conditions applicable to the promotional contest or game including any limitations on entries or prizes;

(cid:151) the number of prizes which may be won and the number of prizes of any one type if more than one type of

prize is on offer;

(cid:151) the rules governing who is eligible to participate and the award of prizes;

(cid:151) whether a cash alternative can be substituted for any prize;

(cid:151) the criteria for judging entries;

(cid:151) the selection procedure for the award of prizes and, where the selection is made by jury, the composition of the

jury;

(cid:151) the date of the results and the manner in which they are to be announced;

(cid:151) the means by which prizes may be delivered or collected and any associated costs;

(cid:151) the time period during which prizes must be collected;

(cid:151) any intention and conditions to use winners in post event publicity; and

(cid:151) details of prize-winning entries subject to the agreement of prize winners and data protection rules.