Proposal for a Directive of the European Parliament and of the Council on injunctions for the protection of consumers' interests (Codified version)
Date: 2003-05-12
Institutions: European Commission
Subjects: application of EU law, approximation of laws, codification of EU law, consumer protection, infringement procedure (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 12.5.2003
COM(2003) 241 final

2003/0099 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on injunctions for the protection of consumers' interests

(Codified version)

(presented by the Commission)

EXPLANATORY MEMORANDUM

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more
accessible to the ordinary citizen, thus giving him new opportunities and the chance
to make use of the specific rights it gives him.

This aim cannot be achieved so long as numerous provisions that have been amended
several times, often quite substantially, remain scattered, so that they must be sought
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable
research work, comparing many different instruments, is thus needed to identify the
current rules.

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also
essential if Community law is to be clear and transparent.

On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all
legislative measures should be codified after no more than ten amendments, stressing
that  this  was  a  minimum  requirement  and  that  departments  should  endeavour  to
codify at even shorter intervals the texts for which they are responsible, to ensure that
the Community rules were clear and readily understandable.

The  Conclusions  of 
the  Edinburgh  European  Council
(December 1992) confirmed this2, stressing the importance of codification as it offers
certainty as to the law applicable to a given matter at a given time.

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community
legislative procedure.

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by
codification, the European Parliament, the Council and the Commission have agreed,
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated
procedure may be used for the fast-track adoption of codification instruments.

The purpose of this proposal is to undertake the  codification of Directive 98/27/EC
of the European Parliament and of the Council of 19 May 1998 on injunctions for the
protection  of  consumer’s  interests3.  The  new  Directive  will  supersede  the  various
Directives incorporated in it4; their content  is fully preserved,  and  they are brought
together  with  only  such  formal  amendments  as  are  required  by  the  codification
exercise itself.

COM(1987) 868 PV.
See Annex 3 to Part A of the Conclusions.
Carried out pursuant to the Communication from the Commission to the European Parliament and the
Council – Codification of the Acquis communautaire, COM(2001) 645 final.
See Annex II, Part A of this proposal.

1.

2.

3.

4.

1

2

3

4

2

                                                
5.

The codification proposal was drawn up on the basis of a preliminary consolidation,
in  all  official  languages,  of  Directive  98/27/EC  and  the  instruments  amending  it,
carried out by the Office of Official Publications of the European Communities, by
means  of  a  data-processing  system.  Insofar  as  the  Articles  have  been  given  new
numbers, the correlation  between the old and the new  numbers  is  shown  in  a  table
contained in Annex III to the codified Directive.

3

(cid:1) 98/27/EC (adapted)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on injunctions for the protection of consumers' interests

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Article (cid:2) 95 (cid:3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the (cid:2) European (cid:3) Economic and Social Committee5,

Acting in accordance with the procedure laid down in Article (cid:2) 251 (cid:3) of the Treaty6,

Whereas:

(1)

Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on
injunctions for the protection of consumers' interests7 has been substantially amended
several  times8.  In  the  interests  of  clarity  and  rationality  the  said  Directive  should  be
codified.

(cid:1) 

(2)

Certain  Directives,  listed  in  the  schedule  annexed  to  this  Directive,  lay  down  rules
with regard to the protection of consumers' interests.

(cid:1) 98/27/EC Recital 1

5

6

7

8

OJ C […].
OJ C […].
OJ  L  166  of  11.6.1998,  p.  51.  Directive  as  last  amended  by  Directive  2002/65/EC  (OJ  L  271  of
9.10.2002, p. 16).
See Annex II, Part A.

4

                                                
(3)

(4)

(5)

(6)

(7)

(cid:1) 98/27/EC Recital 2

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  interests  of  consumers  to  be  terminated  in  good  time.  Collective  interests
mean  interests  which  do  not  include  the  cumulation  of  interests  of  individuals  who
have been harmed by an infringement. This is without prejudice to individual actions
brought by individuals who have been harmed by an infringement.

(cid:1) 98/27/EC Recital 3

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 Directives in question, 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.

(cid:1) 98/27/EC Recital 4

Those  difficulties  can  disrupt  the  smooth  functioning  of  the  internal  market,  their
consequence being  that it  is sufficient to move  the source  of  an unlawful practice  to
another  country  in  order  to  place  it  out  of  reach  of  all  forms  of  enforcement.  This
constitutes a distortion of competition.

(cid:1) 98/27/EC Recital 5

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  independent  public  bodies  responsible  for  protecting  the
collective  interests  of  consumers,  adversely  affected  by  practices  that  infringe
Community law.

(cid:1) 98/27/EC Recital 6

Those practices often extend beyond the frontiers between the Member States. There
is an urgent need for some degree of approximation of national provisions designed to
enjoin the cessation of the unlawful practices irrespective of the country in which the
unlawful practice has produced its effects. With regard to jurisdiction, this is without
prejudice  to  the  rules  of  private  international  law  and  the  Conventions  in  force
between  Member  States,  while  respecting  the  general  obligations  of  the  Member
States deriving from the Treaty, in particular those related to the smooth functioning of
the internal market.

5

(8)

The  objective  of  the  action  envisaged  can  only  be  attained  by  the  Community.  It  is
therefore incumbent on the Community to act.

(cid:1) 98/27/EC Recital 7

(cid:1) 98/27/EC, Recital 8 (adapted)

(9)

The third paragraph of Article 5 of the Treaty makes it incumbent on the Community
not  to  go  beyond  what  is  necessary  to  achieve  the  objectives  of  the  Treaty.  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.  The  courts  or  administrative
authorities  competent  to  rule  on  the  proceedings  referred  to  in  this  Directive  should
have the right to examine the effects of previous decisions.

(cid:1) 98/27/EC Recital 9

(10) One  option  should  consist  in  requiring  one  or  more  independent  public  bodies,
specifically responsible for the  protection  of the  collective interests of consumers, to
exercise  the rights  of  action  set  out  in  this  Directive.  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.

(11) Member  States  should  be  able  to  choose  between  or  combine  these  two  options  in
designating at national level the bodies and/or organisations qualified for the purposes
of this Directive.

(cid:1) 98/27/EC Recital 10

(cid:1) 98/27/EC Recital 11

(12)

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

(13)

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 Union. Until a statement to
the  contrary  is  published,  a  qualified  entity  is  assumed  to  have  legal  capacity  if  its
name is included in that list.

(cid:1) 98/27/EC Recital 12

6

(cid:1) 98/27/EC Recital 13

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

(cid:1) 98/27/EC Recital 14

(15) Where  the Member States have  established that there should be prior  consultation,  a
deadline of two weeks after the request for consultation 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  before  the  competent  court  or  administrative  authority
without any further delay.

(15)

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.

(cid:1) 98/27/EC Recital 15

(16)

The application of this Directive  should  not  prejudice  the  application  of  Community
competition rules.

(cid:1) 98/27/EC Recital 16

(18)

This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States
concerning  the  time-limits  for  transposition  of  the  Directives  set  out  in  Annex  II,
Part B,

(cid:1) 

HAVE ADOPTED THIS DIRECTIVE:

(cid:1) 98/27/EC

Article 1

Scope

1.

The  purpose  of  this  Directive  is  to  approximate  the  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 Directives listed in Annex I, with a view to ensuring the
smooth functioning of the internal market.

7

2.

1.

For the purpose of this Directive, an infringement shall mean any act contrary to the
Directives listed in Annex I 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

Member States shall designate the  courts or  administrative 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;

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

(c)

insofar as the legal system of the Member State concerned so permits, an order
against  the  losing  defendant  for  payments  into  the  public  purse  or  to  any
beneficiary designated in or under national legislation, in the event of failure to
comply  with  the  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 compliance
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  originated  or  the  law  of  the
Member State where the infringement 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:

(a)

(b)

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

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

8

(cid:1) 98/27/EC (adapted)

Article 4

Intra-Community infringements

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  qualified  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  (cid:2) of  this
Article. (cid: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.

For  the  purposes  of  intra-Community  infringements,  and  without  prejudice  to  the
rights granted to other entities 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 qualified entities.

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
Official Journal  of  the  European  Union;  changes  to  this  list  shall  be  published
without delay, the updated list shall be published every six months.

(cid:1) 98/27/EC

Article 5

Prior consultation

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

The rules governing prior consultation adopted by Member States shall be notified to
the
the  Commission  and  shall  be  published 
European Union.

the  Official  Journal  of 

in 

1.

2.

3.

1.

2.

9

(cid:1) 98/27/EC (adapted)

Article 6

Reports

1.

2.

Every  three  years  and  for  the  first  time  no  later  than  (cid:2) 21  July  2003 (cid:3)  the
Commission shall submit to the European Parliament and the Council a report on the
application of this Directive.

In its first report the Commission shall examine in particular:

(cid:2) (a) (cid:3) the scope of this Directive in relation to the protection of the collective
interests  of  persons  exercising  a  commercial,  industrial,  craft  or  professional
activity;

(cid:2) (b) (cid:3) the scope of this Directive as determined by the Directives listed in the

Annex;

(cid:2) (c) (cid:3) 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.

(cid:1) 98/27/EC

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.

(cid:1) 98/27/EC (adapted)

Article 8

Implementation

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

10

(cid:1) 

Article 9

Repeal

Directive  98/27/EC,  as  amended  by  the  Directives  set  out  in  Annex  II,  Part  A,  is  repealed,
without  prejudice  to  the  obligations  of  the  Member  States  concerning  the  time  limits  for
transposition into national law of the directives set out in Annex II, Part B.

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and
shall be read in accordance with the correlation table in Annex III.

(cid:1) 98/27/EC Article 9

Article 10

Entry into force

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

(cid:1) 98/27/EC Article 10

Article 11

Addressees

This Directive is addressed to the Member States.

Done at Brussels, […]

For the European Parliament
The President
[…]

For the Council
The President
[…]

11

(cid:1) 98/27/EC Annex

ANNEX I

LIST OF DIRECTIVES COVERED BY ARTICLE 19

(cid:1) 98/27/EC (adapted)

Council  Directive  84/450/EEC  of  10  September  1984  concerning  misleading
advertising  (cid:2) and  comparative  advertising (cid:3)  (OJ  L  250,  19.9.1984,  p.  17)
(cid:2) amended by Directive 97/55/EC of the European  Parliament and of  the Council
(OJ L 290, 23.10.1997, p. 18). (cid:3)

(cid:1) 98/27/EC (adapted)

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).

Council  Directive  87/102/EEC  of  22  December  1986  for  the  approximation  of  the
laws,  regulations  and  administrative  provisions  of  the  Member  States  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).

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).

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).

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
(OJ L 95, 21.4.1993, p. 29).

(cid:1) 98/27/EC Annex pt. 7

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

(cid:1) 98/27/EC Annex pt. 8

Directive Nos 1, 6, 8 and 11 contain specific provisions on injunctive actions.

12

1.

2.

3.

4.

5.

6.

7.

9

                                                
to  the  purchase  of  the  right  to  use  immovable  properties  on  a  timeshare  basis
(OJ L 280, 29.10.1994, p. 83).

8.

9.

10.

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) (cid:2) amended by Directive 2002/65/EC (OJ L 271, 9.10.2002, p. 16). (cid:3)

(cid:1) 98/27/EC Annex pt. 9 (adapted)

Directive  1999/44/EC  of  the  European  Parliament  and  of  the  Council  of
25 May 1999  on  certain  aspects  of  the  sale  of  consumer  goods  and  associated
guarantees (OJ L 171, 7.7.1999, p. 12).

(cid:1) 1999/44/EC Art. 10

(cid:1) 2000/31/EC Art. 18(2)

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000
on  certain  legal  aspects  on  information  society  services,  in  particular  electronic
commerce,  in  the  internal  market  (Directive  on  electronic  commerce)  (OJ  L  178,
17.7.2000, p. 1).

(cid:2) 11. Directive  2001/83/EC  of  the  European  Parliament  and  of  the  Council  of
6 November 2001 on the Community code relating to medicinal products for human
use: Articles 86 to 100 (OJ L 311, 28.11.2001, p.67). (cid:3)

(cid:1) 98/27/EC (adapted)

12.

Directive  2002/65/EC  of  the  European  Parliament  and  of  the  Council  of
23 September 2002 concerning the distance marketing of consumer financial services
and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
(OJ L 271, 9.10.2002, p.16).

(cid:1) 2002/65/EC Art. 19

_____________

13

(cid:4)

ANNEX II

Part A
Repealed Directive and its amendments
(referred to by Article 9)

Directive 98/27/EC of the European
Parliament and of the Council

OJ L 166, 11.6.1998, p. 51

Directive 1999/44/EC of the European
Parliament and of the Council, Article 10
only

Directive 2000/31/EC of the European
Parliament and of the Council,
Article 18(2) only

Directive 2002/65/EC of the European
Parliament and of the Council, Article 19
only

OJ L 171, 7.7.1999, p. 12

OJ L 178, 17.7.2000, p. 1

OJ L 271, 9.10.2002, p. 16

Part B
Deadlines for transposition into national law
(referred to by Article 9)

Directive

Deadline for transposition

Directive 98/27/EC

Directive 1999/44/EC

Directive 2000/31/EC

Directive 2002/65/EC

1 January 2001

1 January 2002

17 January 2002

9 October 2004

_____________

14

ANNEX III

CORRELATION TABLE

Directive 98/27/EC

This Directive

Articles 1-5

Article 6(1)

Articles 1-5

Article 6(1)

Article 6(2), first subparagraph, first indent

Article 6(2), first subparagraph, point (a)

Article 6(2), first subparagraph, second indent

Article 6(2), first subparagraph, point (b)

Article 6(2), first subparagraph, third indent

Article 6(2), first subparagraph, point (c)

Article 6(2), second subparagraph

Article 6(2), second subparagraph

Articles 7

Article 8(1)

Article 8(2)

______

Article 9

Article 10

Annex

______

______

Article 7

______

Article 8

Article 9

Article 10

Article 11

Annex I

Annex II

Annex III

_____________

15