Common Position (EC) No 6/2005 of 15 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)
Date: 2004-11-15
Institutions: Council of the European Union
Subjects: advertising malpractice, approximation of laws, comparative advertising, competition law, consumer protection

15.2.2005

EN

Official Journal of the European Union

C 38 E/1

I

(Information)

COUNCIL

COMMON POSITION (EC) No 6/2005

adopted by the Council on 15 November 2004

with a view to adopting Directive 2005/…/EC of the European Parliament and of the Council of …
concerning unfair business-to-consumer commercial practices in the internal market and amending
Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European
Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and
of the Council (Unfair Commercial Practices Directive)

(Text with EEA relevance)

(2005/C 38 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(3)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

Article 153(1) and (3)(a) of the Treaty provides that the
Community is to contribute to the attainment of a high
level of consumer protection by the measures it adopts
pursuant to Article 95 thereof.

the Treaty,

In accordance with Article 14(2) of
the
internal market comprises an area without internal fron-
tiers in which the free movement of goods and services
and freedom of establishment are ensured. The develop-
fair commercial practices within the area
ment of
without internal frontiers is vital for the promotion of
the development of cross-border activities.

(1) OJ C 108, 30.4.2004, p. 81.
(2) Opinion of the European Parliament of 20 April 2004 (OJ C 104 E,
30.4.2004), Council Common Position of 15 November 2004 and
position of the European Parliament of (not yet published in the
Official Journal).

the Member States

The laws of
relating to unfair
commercial practices show marked differences which
can generate appreciable distortions of competition and
obstacles to the smooth functioning of
the internal
market. In the field of advertising, Council Directive 84/
450/EEC of 10 September 1984 concerning misleading
and comparative advertising (3) establishes minimum
criteria for harmonising legislation on misleading adver-
tising, but does not prevent the Member States from
retaining or adopting measures which provide more
extensive protection for consumers. As a result, Member
States' provisions on misleading advertising diverge
significantly.

(4)

(5)

These disparities cause uncertainty as to which national
rules apply to unfair commercial practices harming
consumers' economic interests and create many barriers
affecting business and consumers. These barriers increase
the cost to business of exercising internal market free-
doms, in particular when businesses wish to engage in
cross border marketing, advertising campaigns and sales
promotions. Such barriers also make consumers uncer-
tain of their rights and undermine their confidence in
the internal market.

In the absence of uniform rules at Community level,
obstacles to the free movement of services and goods
across borders or the freedom of establishment could be
justified in the light of the case-law of the Court of
Justice of the European Communities as long as they
seek to protect recognised public interest objectives and

(3) 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).

C 38 E/2

EN

Official Journal of the European Union

15.2.2005

(8)

(9)

are proportionate to those objectives.
In view of the
Community's objectives, as set out in the provisions of
the Treaty and in secondary Community law relating to
freedom of movement, and in accordance with the
Commission's policy on commercial communications as
indicated in the Communication from the Commission
entitled ‘The follow-up to the Green Paper on Commer-
cial Communications in the Internal Market’, such obsta-
cles should be eliminated. These obstacles can only be
eliminated by establishing uniform rules at Community
level which establish a high level of consumer protection
and by clarifying certain legal concepts at Community
level to the extent necessary for the proper functioning
of the internal market and to meet the requirement of
legal certainty.

legitimate competitors.

This Directive therefore approximates the laws of the
Member States on unfair commercial practices, including
unfair advertising, which directly harm consumers'
economic interests and thereby indirectly harm the
In line
economic interests of
with the principle of proportionality,
this Directive
protects consumers from the consequences of such
unfair commercial practices where they are material but
recognises that in some cases the impact on consumers
may be negligible.
It neither covers nor affects the
national
laws on unfair commercial practices which
harm only competitors' economic interests or which
relate to a transaction between traders;
taking full
account of the principle of subsidiarity, Member States
will continue to be able to regulate such practices,
in
conformity with Community law, if they choose to do
so. Nor does this Directive cover or affect the provisions
of Directive 84/450/EEC on advertising which misleads
business but which is not misleading for consumers and
on comparative advertising. Further, this Directive does
not affect accepted advertising and marketing practices,
such as legitimate product placement, brand differentia-
tion or the offering of incentives which may legitimately
affect consumers' perceptions of products and influence
their behaviour without impairing the consumer's ability
to make an informed decision.

This Directive directly protects consumer economic
interests from unfair business-to-consumer commercial
practices. Thereby,
it also indirectly protects legitimate
businesses from their competitors who do not play by
the rules in this Directive and thus guarantees fair
competition in fields coordinated by it. It is understood
that
commercial practices which,
although not harming consumers, may hurt competitors
and business customers. The Commission should care-
fully examine the need for Community action in the
field of unfair competition beyond the remit of this
Directive and, if necessary, make a legislative proposal to
cover these other aspects of unfair competition.

are other

there

This Directive is without prejudice to individual actions
brought by those who have been harmed by an unfair
commercial practice. It is also without prejudice to Com-
munity and national rules on contract law, on intellec-
tual property rights, on the health and safety aspects of
products, on conditions of establishment and authorisa-
tion regimes, including those rules which, in conformity
with Community law, relate to gambling activities, and
to Community competition rules and the national provi-
sions implementing them. The Member States will thus
be able to retain or introduce restrictions and prohibi-
tions of commercial practices on grounds of the protec-
tion of the health and safety of consumers in their terri-
tory wherever the trader is based, for example in relation
to alcohol, tobacco or pharmaceuticals. Financial services
and immovable property, by reason of their complexity
and inherent serious risks, necessitate detailed require-
ments, including positive obligations on traders. For this
reason, in the field of financial services and immovable
property, this Directive is without prejudice to the right
of Member States to go beyond its provisions to protect
the economic interests of consumers. It is not appro-
priate to regulate here the certification and indication of
the standard of fineness of articles of precious metal.

for

example

commercial

This Directive addresses commercial practices directly
related to influencing consumers' transactional decisions
in relation to products. It does not address commercial
practices carried out primarily for other purposes,
including
communication
aimed at investors, such as annual reports and corporate
promotional literature. It does not address legal require-
ments related to taste and decency which vary widely
among the Member States. Commercial practices such
as, for example, commercial solicitation in the streets,
may be undesirable in Member States
for cultural
reasons. Member States should accordingly be able to
continue to ban commercial practices in their territory,
in conformity with Community law, for reasons of taste
and decency even where such practices do not limit
consumers' freedom of choice.

(10)

It is necessary to ensure that the relationship between
this Directive and existing Community law is coherent,
particularly where detailed provisions on unfair commer-
cial practices apply to specific sectors. This Directive
therefore amends Directive 84/450/EEC, 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 (1), Directive 98/27/EC of the Euro-
pean Parliament and of the Council of 19 May 1998 on
injunctions for the protection of consumers' interests (2)
and Directive 2002/65/EC of the European Parliament

(1) OJ L 144, 4.6.1997, p. 19. Directive as amended by Directive

2002/65/EC (OJ L 271, 9.10.2002, p. 16.).

(2) OJ L 166, 11.6.1998, p. 51. Directive as last amended by Directive

2002/65/EC.

(6)

(7)

15.2.2005

EN

Official Journal of the European Union

C 38 E/3

(14)

and of the Council of 23 September 2002 concerning
the distance marketing of consumer financial services (1).
This Directive accordingly applies only in so far as there
are no specific Community law provisions regulating
specific aspects of unfair commercial practices, such as
information requirements and rules on the way the
information is presented to the consumer. It provides
protection for consumers where there is no specific
legislation at Community level and prohibits
sectoral
traders from creating a false impression of the nature of
products. This is particularly important
for complex
products with high levels of risk to consumers, such as
certain financial services products. This Directive conse-
quently complements the Community acquis, which is
applicable to commercial practices harming consumers'
economic interests.

(11)

The high level of convergence achieved by the approxi-
mation of national provisions through this Directive
creates a high common level of consumer protection.
This Directive establishes a single general prohibition of
those unfair commercial practices distorting consumers'
It also sets rules on aggressive
economic behaviour.
commercial practices, which are currently not regulated
at Community level.

(12) Harmonisation will considerably increase legal certainty
for both consumers and business. Both consumers and
business will be able to rely on a single regulatory frame-
work based on clearly defined legal concepts regulating
all aspects of unfair commercial practices across the EU.
The effect will be to eliminate the barriers stemming
from the fragmentation of the rules on unfair commer-
cial practices harming consumer economic interests and
to enable the internal market to be achieved in this area.

(13)

distorting

commercial practices

In order to achieve the Community's objectives through
the removal of internal market barriers, it is necessary to
replace Member States'
existing, divergent general
clauses and legal principles. The single, common general
prohibition established by this Directive therefore covers
consumers'
unfair
economic behaviour.
In order to support consumer
confidence the general prohibition should apply equally
to unfair commercial practices which occur outside any
contractual
and a
consumer or following the conclusion of a contract and
during its execution. The general prohibition is elabo-
rated by rules on the two types of commercial practices
which are by far the most common, namely misleading
commercial practices and aggressive commercial prac-
tices.

relationship between a

trader

It is desirable that misleading commercial practices cover
those practices, including misleading advertising, which
by deceiving the consumer prevent him from making an
informed and thus efficient choice. In conformity with
the laws and practices of Member States on misleading
advertising, this Directive classifies misleading practices
into misleading actions and misleading omissions.
In
respect of omissions, this Directive sets out a limited
number of key items of information which the consumer
needs to make an informed transactional decision. Such
information will not have to be disclosed in all advertise-
ments, but only where the trader makes an invitation to
purchase, which is a concept clearly defined in this
Directive. The full harmonisation approach adopted in
this Directive does not preclude the Member States from
law the main characteristics of
specifying in national
particular products such as,
for example, collectors'
items or electrical goods, the omission of which would
be material when an invitation to purchase is made. It is
not the intention of this Directive to reduce consumer
choice by prohibiting the promotion of products which
look similar to other products unless this similarity
confuses consumers as to the commercial origin of the
product and is
therefore misleading. This Directive
should be without prejudice to existing Community law
which expressly affords Member States
the choice
between several regulatory options for the protection of
consumers in the field of commercial practices. In par-
ticular, this Directive should be without prejudice to
Article 13(3) of Directive 2002/58/EC of the European
Parliament and of
the Council of 12 July 2002
concerning the processing of personal data and the
protection of privacy in the electronic communications
sector (2).

law and having contract

(15) Where Community law sets out information require-
ments in relation to commercial communication, adver-
tising and marketing that information is considered as
material under this Directive. Member States will be able
to retain or add information requirements relating to
contract
law consequences
where this is allowed by the minimum clauses in the
existing Community law instruments. A non-exhaustive
list of such information requirements in the acquis is
contained in Annex II. Given the full harmonisation
introduced by this Directive only the information
required in Community law is considered as material for
thereof. Where Member
the purpose of Article 7(5)
States have introduced information requirements over
and above what is specified in Community law, on the
basis of minimum clauses, the omission of that extra
information will not constitute a misleading omission
under this Directive. By contrast Member States will be
able, when allowed by the minimum clauses in Com-
munity law, to maintain or introduce more stringent
provisions in conformity with Community law so as to
ensure a higher level of protection of consumers' indivi-
dual contractual rights.

(1) OJ L 271, 9.10.2002, p. 16.

(2) OJ L 201, 31.7.2002, p. 37.

C 38 E/4

EN

Official Journal of the European Union

15.2.2005

(16)

The provisions on aggressive
commercial practices
should cover those practices which significantly impair
the consumer's freedom of choice. Those are practices
using harassment, coercion, including the use of physical
force, and undue influence.

cised by code owners at national or Community level to
eliminate unfair commercial practices may avoid the
need for recourse to administrative or judicial action and
should therefore be encouraged. With the aim of
pursuing a high level of consumer protection, consu-
mers' organisations could be informed and involved in
the drafting of codes of conduct.

It is desirable that those commercial practices which are
in all circumstances unfair be identified to provide
greater legal certainty. Annex I therefore contains the
full list of all such practices. These are the only commer-
cial practices which can be deemed to be unfair without
a case-by-case assessment against the provisions of Arti-
cles 5 to 9.

(21)

(17)

(18)

It is appropriate to protect all consumers from unfair
commercial practices; however the Court of Justice has
found it necessary in adjudicating on advertising cases
since the enactment of Directive 84/450/EEC to examine
the effect on a notional, typical consumer. In line with
the principle of proportionality, and to permit the effec-
tive application of the protections contained in it, this
Directive takes as a benchmark the average consumer as
interpreted by the Court of Justice but also contains
provisions aimed at preventing the exploitation of
consumers whose characteristics make them particularly
vulnerable to unfair commercial practices. Where a
commercial practice is specifically aimed at a particular
group of consumers, such as children, it is desirable that
the impact of the commercial practice be assessed from
the perspective of the average member of that group.
The average consumer
test.
test
National courts and authorities will have to exercise
their own faculty of judgement, having regard to the
case-law of the Court of Justice, to determine the typical
reaction of the average consumer in a given case.

is not a statistical

(19) Where certain characteristics such as age, physical or
mental infirmity or credulity make consumers particu-
larly susceptible to a commercial practice or to the
underlying product and the economic behaviour only of
such consumers is likely to be distorted by the practice
in a way that the trader can reasonably foresee,
it is
appropriate to ensure that they are adequately protected
by assessing the practice from the perspective of the
average member of that group.

for

Persons or organisations regarded under national law as
having a legitimate interest in the matter must have legal
remedies
against unfair
initiating proceedings
commercial practices, either before a court or before an
administrative authority which is competent to decide
upon complaints or to initiate appropriate legal proceed-
ings. While it
law to determine the
burden of proof, it is appropriate to enable courts and
administrative authorities to require traders to produce
evidence as to the accuracy of factual claims they have
made.

is for national

(22)

It is necessary that Member States lay down penalties for
infringements of the provisions of this Directive and
they must ensure that these are enforced. The penalties
must be effective, proportionate and dissuasive.

(23)

Since the objectives of this Directive, namely to elimi-
nate the barriers to the functioning of
the internal
market represented by national laws on unfair commer-
cial practices and to provide a high common level of
consumer protection, by approximating the laws, regula-
tions and administrative provisions of the Member States
on unfair commercial practices, cannot be sufficiently
achieved by the Member States and can therefore be
the Community
better achieved at Community level,
may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty.
In
accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
is necessary in order to eliminate the internal
what
market barriers and achieve a high common level of
consumer protection.

(20)

It is appropriate to provide a role for codes of conduct,
this
which enable traders to apply the principles of
Directive effectively in specific economic fields.
In
sectors where there are specific mandatory requirements
regulating the behaviour of traders, it is appropriate that
these will also provide evidence as to the requirements
of professional diligence in that sector. The control exer-

(24)

It is appropriate to review this Directive to ensure that
barriers to the internal market have been addressed and
a high level of consumer protection achieved. The
review could lead to a Commission proposal to amend
this Directive, which may include a limited extension to
the derogation in Article 3(5), and/or amendments to
other consumer protection legislation reflecting the
Commission's Consumer Policy Strategy commitment to
review the existing acquis in order to achieve a high,
common level of consumer protection.

15.2.2005

EN

Official Journal of the European Union

C 38 E/5

(25)

This Directive respects
rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union,

the fundamental

revision of a code of conduct and/or
for monitoring
compliance with the code by those who have undertaken
to be bound by it;

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER 1

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to contribute to the proper
functioning of the internal market and achieve a high level of
consumer protection by approximating the laws, regulations
and administrative provisions of the Member States on unfair
commercial practices harming consumers' economic interests.

Article 2

Definitions

For the purposes of this Directive:

(a) ‘consumer’ means any natural person who, in commercial
practices covered by this Directive, is acting for purposes
which are outside his trade, business, craft or profession;

(b) ‘trader’ means any natural or legal person who, in commer-
is acting for
cial practices covered by this Directive,
purposes relating to his trade, business, craft or profession
and anyone acting in the name of or on behalf of a trader;

(c) ‘product’ means any good or service including immovable

property, rights and obligations;

(d) ‘business-to-consumer commercial practices’

(hereinafter
also referred to as ‘commercial practices’) means any act,
omission, course of conduct or representation, commercial
communication including advertising and marketing, by a
trader, directly connected with the promotion, sale or
supply of a product to consumers;

(e) ‘to materially distort the economic behaviour of consumers’
means using a commercial practice to appreciably impair
the consumer's ability to make an informed decision,
thereby causing the consumer to take a transactional deci-
sion that he would not have taken otherwise;

(f) ‘code of conduct’ means an agreement or set of rules not
imposed by law, regulation or administrative provision of a
Member State which defines the behaviour of traders who
undertake to be bound by the code in relation to one or
more particular commercial practices or business sectors;

(g) ‘code owner’ means any entity, including a trader or group
of traders, which is responsible for the formulation and

(h) ‘professional diligence’ means the standard of special skill
and care which a trader may reasonably be expected to
exercise towards consumers, commensurate with honest
market practice and/or the general principle of good faith
in the trader's field of activity;

(i) ‘invitation to purchase’ means a commercial communica-
tion which indicates characteristics of the product and the
price in a way appropriate to the means of the commercial
communication used and thereby enables the consumer to
make a purchase;

(j) ‘undue influence’ means exploiting a position of power in
relation to the consumer so as to apply pressure, even
without using or threatening to use physical force, in a way
which significantly limits the consumer's ability to make an
informed decision;

(k) ‘transactional decision’ means any decision taken by a
consumer concerning whether, how and on what terms to
purchase, make payment in whole or in part for, retain or
dispose of a product or to exercise a contractual right in
relation to the product, whether the consumer decides to
act or to refrain from acting;

(l) ‘regulated profession’ means a professional activity or a
group of professional activities, access to which or the
pursuit of which, or one of the modes of pursuing which,
is conditional, directly or indirectly, upon possession of
specific professional qualifications, pursuant to laws, regula-
tions or administrative provisions.

Article 3

Scope

1.
This Directive shall apply to unfair business-to-consumer
commercial practices, as laid down in Article 5, before, during
and after a commercial transaction in relation to a product.

2.
This Directive is without prejudice to contract law and, in
particular, to the rules on the validity, formation or effect of a
contract.

3.
This Directive is without prejudice to Community or
national rules relating to the health and safety aspects of
products.

In the case of conflict between the provisions of this
4.
Directive and other Community rules
regulating specific
aspects of unfair commercial practices, the latter shall prevail
and apply to those specific aspects.

C 38 E/6

EN

Official Journal of the European Union

15.2.2005

5.
For a period of six years from (*), Member States shall be
able to apply national provisions within the field approximated
by this Directive which are more restrictive or prescriptive than
this Directive and which implement directives containing
minimum harmonisation clauses. These measures must be
essential to ensure that consumers are adequately protected
against unfair commercial practices and must be proportionate
to the attainment of this objective. The review referred to in
Article 18 may, if considered appropriate, include a proposal to
prolong this derogation for a further limited period.

6. Member States shall notify the Commission without delay
of any national provisions applied on the basis of paragraph 5.

This Directive is without prejudice to the rules deter-

7.
mining the jurisdiction of the courts.

8.
This Directive is without prejudice to any conditions of
establishment or of authorisation regimes, or to the deontolo-
gical codes of conduct or other specific rules governing regu-
lated professions in order to uphold high standards of integrity
on the part of the professional, which Member States may, in
conformity with Community law, impose on professionals.

In relation to ‘financial services’, as defined in Directive
9.
2002/65/EC, and immovable property, Member States may
impose requirements which are more restrictive or prescriptive
than this Directive in the field which it approximates.

This Directive shall not apply to the application of the
10.
laws, regulations and administrative provisions of Member
States relating to the certification and indication of the standard
of fineness of articles of precious metal.

Article 4

Internal market

Member States shall neither restrict the freedom to provide
services nor restrict the free movement of goods for reasons
falling within the field approximated by this Directive.

(b) it materially distorts or is likely to materially distort the
economic behaviour with regard to the product of the
average consumer whom it reaches or to whom it
is
addressed, or of the average member of the group when a
commercial practice is directed to a particular group of
consumers.

Commercial practices which reach the generality of
3.
consumers, but are likely to materially distort the economic
behaviour only of a group of consumers who are particularly
vulnerable to the practice or the underlying product because of
their mental or physical infirmity, age or credulity in a way
which the trader could reasonably be expected to foresee, shall
be assessed from the perspective of the average member of that
group. This is without prejudice to the common and legitimate
advertising practice of making exaggerated statements or state-
ments which are not meant to be taken literally.

4.

In particular, commercial practices shall be unfair which:

(a) are misleading as set out in Articles 6 and 7, or

(b) are aggressive as set out in Articles 8 and 9.

Annex I contains the list of those commercial practices

5.
which shall in all circumstances be regarded as unfair.

SECTION 1

MISLEADING COMMERCIAL PRACTICES

Article 6

Misleading actions

CHAPTER 2

UNFAIR COMMERCIAL PRACTICES

Article 5

1.
A commercial practice shall be regarded as misleading if
it contains false information and is therefore untruthful or in
any way, including overall presentation, deceives or is likely to
deceive the average consumer, even if
the information is
factually correct, in relation to one or more of the following
elements, and in either case causes or is likely to cause him to
take a transactional decision that he would not have taken
otherwise:

Prohibition of unfair commercial practices

(a) the existence or nature of the product;

1.

2.

Unfair commercial practices shall be prohibited.

A commercial practice shall be unfair if:

(a) it is contrary to the requirements of professional diligence,

and

(*) 24 months after the entry into force of this Directive.

(b) the main characteristics of the product, such as its avail-
ability, benefits, risks, execution, composition, accessories,
after-sale customer assistance and complaint handling,
method and date of manufacture or provision, delivery,
fitness for purpose, usage, quantity, specification, geogra-
phical or commercial origin or the results to be expected
from its use, or the results and material features of tests or
checks carried out on the product;

15.2.2005

EN

Official Journal of the European Union

C 38 E/7

(c) the extent of the trader's commitments, the motives for the
commercial practice and the nature of the sales process,
any statement or symbol in relation to direct or indirect
sponsorship or approval of the trader or the product;

(d) the price or the manner in which the price is calculated, or

the existence of a specific price advantage;

(e) the need for a service, part, replacement or repair;

(f) the nature, attributes and rights of the trader or his agent,
such as his identity and assets, his qualifications, status,
approval, affiliation or connection and ownership of indus-
trial, commercial or intellectual property rights or his
awards and distinctions;

(g) the consumer's rights or the risks he may face.

A commercial practice

2.
regarded as
misleading where, in its factual context, taking account of all
its features and circumstances, it thereby causes or is likely to
cause the average consumer to take a transactional decision
that he would not have taken otherwise, and it involves:

also be

shall

(a) any marketing of a product, including comparative adver-
tising, which creates confusion with any products, trade
marks, trade names and other distinguishing marks of a
competitor;

(b) non-compliance by the trader with commitments contained
in codes of conduct by which the trader has undertaken to
be bound, where:

(i) the commitment is not aspirational but is firm and is

capable of being verified, and

available to consumers by other means shall be taken into
account in deciding whether information has been omitted.

In the case of an invitation to purchase, the following
if not already

4.
information shall be regarded as material,
apparent from the context:

(a) the main characteristics of the product, to an extent appro-

priate to the medium and the product;

(b) the geographical address and the identity of the trader,
such as his trading name and, where applicable, the geogra-
phical address and the identity of the trader on whose
behalf he is acting;

(c) the price inclusive of taxes, or where the nature of the
product means that the price cannot reasonably be calcu-
lated in advance, the manner in which the price is calcu-
lated, as well as, where appropriate, all additional freight,
delivery or postal charges or, where these charges cannot
reasonably be calculated in advance, the fact that such addi-
tional charges may be payable;

(d) the arrangements for payment, delivery, performance and
from the

if they depart

the complaint handling policy,
requirements of professional diligence;

(e) for products and transactions involving a right of with-

drawal or cancellation, the existence of such a right.

5.
Information requirements established by Community law
in relation to commercial communication including advertising
or marketing, a non-exhaustive list of which is contained in
Annex II, shall be regarded as material.

(ii) the trader indicates in a commercial practice that he is

SECTION 2

bound by the code.

Article 7

Misleading omissions

AGGRESSIVE COMMERCIAL PRACTICES

Article 8

Aggressive commercial practices

1.
A commercial practice shall be regarded as misleading
which, in its factual context, taking account of all its features
and circumstances and the limitations of the communication
medium, omits material information that the average consumer
needs, according to the context, to take an informed transac-
tional decision and thereby causes or is likely to cause the
average consumer to take a transactional decision that he
would not have taken otherwise.

2.
It shall also be regarded as a misleading omission when a
trader hides or provides in an unclear, unintelligible, ambig-
uous or untimely manner such material information as referred
to in paragraph 1 or fails to identify the commercial intent of
the commercial practice if not already apparent
from the
context.

3. Where the medium used to communicate the commercial
practice imposes limitations of space or time, these limitations
and any measures taken by the trader to make the information

A commercial practice shall be regarded as aggressive if, in its
factual context, taking account of all its features and circum-
stances, by harassment, coercion, including the use of physical
force, or undue influence, it significantly impairs or is likely to
significantly impair the average consumer's freedom of choice
or conduct with regard to the product and thereby causes him
or is likely to cause him to take a transactional decision that he
would not have taken otherwise.

Article 9

Use of harassment, coercion and undue influence

In determining whether a commercial practice uses harassment,
coercion, including the use of physical force, or undue influ-
ence, account shall be taken of:

(a) its timing, location, nature or persistence;

C 38 E/8

EN

Official Journal of the European Union

15.2.2005

(b) the use of threatening or abusive language or behaviour;

(c) the exploitation by the trader of any specific misfortune or
circumstance of such gravity as to impair the consumer's
judgement, of which the trader is aware, to influence the
consumer's decision with regard to the product;

(d) any onerous or disproportionate non-contractual barriers
imposed by the trader where a consumer wishes to exercise
rights under the contract, including rights to terminate a
contract or to switch to another product or another trader;

(e) any threat to take any action that cannot legally be taken.

CHAPTER 3

CODES OF CONDUCT

Article 10

Codes of conduct

This Directive does not exclude the control, which Member
States may encourage, of unfair commercial practices by code
owners and recourse to such bodies by the persons or organisa-
tions referred to in Article 11 if proceedings before such bodies
are in addition to the court or administrative proceedings
referred to in that Article.

CHAPTER 4

FINAL PROVISIONS

Article 11

Enforcement

administrative authorities to require prior recourse to other
established means of dealing with complaints, including those
referred to in Article 10. These facilities shall be available
regardless of whether the consumers affected are in the terri-
tory of the Member State where the trader is located or in
another Member State.

It shall be for each Member State to decide:

— whether these legal facilities may be directed separately or
jointly against a number of traders from the same economic
sector; and

— whether these legal facilities may be directed against a code
owner where the relevant code promotes non-compliance
with legal requirements.

2.
Under the legal provisions referred to in paragraph 1,
Member States shall confer upon the courts or administrative
authorities powers enabling them, in cases where they deem
such measures to be necessary taking into account all the inter-
ests involved and in particular the public interest:

— to order the cessation of, or to institute appropriate legal
the cessation of, unfair

for an order

for

proceedings
commercial practices, or

— if the unfair commercial practice has not yet been carried
out but is imminent, to order the prohibition of the prac-
tice, or to institute appropriate legal proceedings for an
order for the prohibition of the practice,

even without proof of actual loss or damage or of intention or
negligence on the part of the trader.

Member States shall also make provision for the measures
referred to in the first subparagraph to be taken under an accel-
erated procedure:

1. Member States shall ensure that adequate and effective
means exist to combat unfair commercial practices and for
compliance with the provisions of this Directive in the interest
of consumers.

— either with interim effect, or

— with definitive effect,

Such means shall include legal provisions under which persons
or organisations regarded under national law as having a legiti-
mate
commercial practices,
including competitors, may:

in combating unfair

interest

— take legal action against such unfair commercial practices;

and/or

— bring such unfair commercial practices before an adminis-
trative authority competent either to decide on complaints
or to initiate appropriate legal proceedings.

on the understanding that it is for each Member State to decide
which of the two options to select.

Furthermore, Member States may confer upon the courts or
administrative authorities powers enabling them, with a view
to eliminating the continuing effects of unfair commercial prac-
tices the cessation of which has been ordered by a final deci-
sion:

— to require publication of that decision in full or in part and

in such form as they deem adequate,

It shall be for each Member State to decide which of these facil-
ities shall be available and whether to enable the courts or

— to require in addition the publication of a corrective state-

ment.

15.2.2005

EN

Official Journal of the European Union

C 38 E/9

The administrative authorities referred to in paragraph 1

(1) Article 1 shall be replaced by the following:

3.
must:

(a) be composed so as not to cast doubt on their impartiality;

‘Article 1

(b) have adequate powers, where they decide on complaints, to
monitor and enforce the observance of their decisions effec-
tively;

(c) normally give reasons for their decisions.

Where the powers referred to in paragraph 2 are exercised
exclusively by an administrative authority, reasons for its deci-
sions shall always be given. Furthermore, in this case, provision
must be made for procedures whereby improper or unreason-
able exercise of its powers by the administrative authority or
improper or unreasonable failure to exercise the said powers
can be the subject of judicial review.

Article 12

Courts and administrative authorities: substantiation of
claims

Member States shall confer upon the courts or administrative
authorities powers enabling them in the civil or administrative
proceedings provided for in Article 11:

(a) to require the trader to furnish evidence as to the accuracy
of factual claims in relation to a commercial practice if,
taking into account the legitimate interest of the trader and
any other party to the proceedings, such a requirement
appears appropriate on the basis of the circumstances of
the particular case; and

(b) to consider factual claims as inaccurate if the evidence
is not furnished or is
administrative

demanded in accordance with (a)
deemed insufficient by
authority.

court or

the

Article 13

Penalties

Member States shall lay down penalties for infringements of
national provisions adopted in application of this Directive and
these are
shall
enforced. These penalties must be effective, proportionate and
dissuasive.

take all necessary measures to ensure that

Article 14

The purpose of this Directive is to protect traders against
misleading advertising and the unfair consequences thereof
and to lay down the conditions under which comparative
advertising is permitted’;

(2) In Article 2:

— Point 3 shall be replaced by the following:

‘3. “trader” means any natural or legal person who is
acting for purposes relating to his trade, craft, busi-
ness or profession and any one acting in the name
of or on behalf of a trader.’

— The following point shall be added:

‘4. “code owner” means any entity, including a trader
or group of traders, which is responsible for the
formulation and revision of a code of conduct and/
or for monitoring compliance with the code by
those who have undertaken to be bound by it.’.

(3) Article 3a shall be replaced by the following:

‘Article 3a

1.
Comparative advertising shall, as far as the compar-
ison is concerned, be permitted when the following condi-
tions are met:

(a) it is not misleading according to Articles 2(2), 3 and
7(1)of this Directive or Articles 6 and 7 of Direc-
tive 2005/…/EC (+) of the European Parliament and of
the Council of...… concerning unfair business-to-
consumer
internal
market (*);

commercial

practices

the

in

(b) it compares goods or services meeting the same needs

or intended for the same purpose;

(c) it objectively compares one or more material, relevant,
verifiable and representative features of those goods
and services, which may include price;

(d) it does not discredit or denigrate the trade marks, trade
names, other distinguishing marks, goods, services,
activities, or circumstances of a competitor;

Amendments to Directive 84/450/EEC

(e) for products with designation of origin,

it relates in

each case to products with the same designation;

Directive 84/450/EEC is hereby amended as follows:

(+) This Directive.

C 38 E/10

EN

Official Journal of the European Union

15.2.2005

(f) it does not take unfair advantage of the reputation of a
trade mark, trade name or other distinguishing marks
of a competitor or of the designation of origin of
competing products;

Article 15

Amendments to Directives 97/7/EC and 2002/65/EC

(g) it does not present goods or services as imitations or
replicas of goods or services bearing a protected trade
mark or trade name;

Article 9 of Directive 97/7/EC shall be replaced by the

(1)
following:

(h) it does not create confusion among traders, between
the advertiser and a competitor or between the adverti-
ser's trade marks,
trade names, other distinguishing
marks, goods or services and those of a competitor.

‘Article 9

Inertia selling

(*) OJ L … ’

(4) Article 4(1) shall be replaced by the following:

‘1. Member States shall ensure that adequate and effec-
tive means exist to combat misleading advertising and for
compliance with the provisions on comparative advertising
in the interest of traders and competitors. Such means shall
include legal provisions under which persons or organisa-
tions regarded under national law as having a legitimate
interest in combating misleading advertising or regulating
comparative advertising may:

Given the prohibition of inertia selling practices laid down
in Directive 2005/.../EC (+) of the European Parliament and
of
the Council of …… concerning unfair business-to-
consumer commercial practices in the internal market (*),
Member States shall take the measures necessary to exempt
the consumer from the provision of any consideration in
cases of unsolicited supply, the absence of a response not
constituting consent.

(*) OJ L … ’

Article 9 of Directive 2002/65/EC shall be replaced by

(2)
the following:

(a) take legal action against such advertising; or

‘Article 9

(b) bring

such advertising

an administrative
authority competent either to decide on complaints or
to initiate appropriate legal proceedings.

before

It shall be for each Member State to decide which of these
facilities shall be available and whether to enable the courts
or administrative authorities to require prior recourse to
other
established means of dealing with complaints,
including those referred to in Article 5.

It shall be for each Member State to decide:

(a) whether these legal facilities may be directed separately
or jointly against a number of traders from the same
economic sector; and

(b) whether these legal facilities may be directed against a
code owner where the relevant code promotes non-
compliance with legal requirements.’

(5) Article 7(1) shall be replaced by the following:

This Directive shall not preclude Member States from
‘1.
retaining or adopting provisions with a view to ensuring
more extensive protection, with regard to misleading adver-
tising, for traders and competitors’.

Given the prohibition of inertia selling practices laid down
in Directive 2005/.../EC (+) of the European Parliament and
of
the Council of …… concerning unfair business-to-
consumer commercial practices in the internal market (*)
and without prejudice to the provisions of Member States'
legislation on the tacit renewal of distance contracts, when
such rules permit tacit renewal, Member States shall take
measures to exempt the consumer from any obligation in
the event of unsolicited supplies, the absence of a reply not
constituting consent.

(*) OJ L … ’

Article 16

Amendments to Directive 98/27/EC and Regulation (EC)
No 2006/2004

In the Annex to Directive 98/27/EC, point 1 shall be

(1)
replaced by the following:

Directive 2005/.../EC (+) of the European Parliament
‘1.
and of the Council of …… concerning unfair business-to-
consumer commercial practices in the internal market
(OJ L...)’.

(+) This Directive.

15.2.2005

EN

Official Journal of the European Union

C 38 E/11

(2)
In the Annex to Regulation (EC) No 2006/2004 of the
European Parliament and of the Council of 27 October 2004
on cooperation between national authorities responsible for the
enforcement of the consumer protection laws (the Regulation
on consumer protection cooperation) (1) the following point
shall be added:

Directive 2005/..../EC (+) of the European Parliament
‘15.
and of the Council of........... concerning unfair business-to-
consumer commercial practices in the internal market (OJ
L…, p. )’.

Article 17

Information

Member States shall take appropriate measures to inform the
consumer of the national
law transposing this Directive and
shall, where appropriate, encourage traders and code owners to
inform consumers of their codes of conduct.

Article 18

Review

later

than four

The Commission shall not

years
1.
after...... (*) submit to the European Parliament and the Council
a comprehensive report on the application of this Directive, in
particular of Article 4 and Annex I, on the scope for further
harmonisation and simplification of Community law relating to
consumer protection, and, having regard to Article 3(5), on any
measures that need to be taken at Community level to ensure
that appropriate levels of consumer protection are maintained.
The report shall be accompanied, if necessary, by a proposal to
revise this Directive or other relevant parts of Community law.

2.
The European Parliament and the Council shall endeavour
to act, in accordance with the Treaty, within two years of the
presentation by the Commission of any proposal submitted
under paragraph 1.

Article 19

Transposition

Member States shall adopt and publish the laws, regulations
and administrative provisions necessary to comply with this
Directive by......... (*). They shall forthwith inform the Commis-
sion thereof and inform the Commission of any subsequent
amendments without delay.

They shall apply those measures by.......... (**). When Member
States adopt those measures, they shall contain a reference to
this Directive or be accompanied by such a reference on the
occasion of their official publication. Member States shall deter-
mine how such reference is to be made.

Article 20

Entry into force

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

Article 21

Addressees

This Directive is addressed to the Member States.

Done at Brussels,…

For the European Parliament

The President

…

For the Council

The President

…

(1) OJ L 364, 9.12.2004, p. 1.
(+) This Directive.
(*) 24 months after the entry into force of this Directive.

(**) 30 months after the entry into force of this Directive.

C 38 E/12

EN

Official Journal of the European Union

15.2.2005

COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR

ANNEX I

Misleading commercial practices

(1) Claiming to be a signatory to a code of conduct when the trader is not.

(2) Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.

(3) Claiming that a code of conduct has an endorsement from a public or other body which it does not have.

(4) Claiming that a product has been approved, endorsed or authorised by a public or private body when it has not or

making such a claim without complying with the terms of the approval, endorsement or authorisation.

(5) Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable
grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader
to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reason-
able having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

(6) Making an invitation to purchase products at a specified price and then:

(a) refusing to show the advertised item to consumers, or

(b) refusing to take orders for it or deliver it within a reasonable time, or

(c) demonstrating a defective sample of it,

with the intention of promoting a different product (bait and switch).

(7) Falsely stating that the product will only be available for a very limited time in order to elicit an immediate decision

and deprive consumers of sufficient opportunity or time to make an informed choice.

(8) Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a trans-
action in a language which is not an official language of the Member State where the trader is located and then
making such service available only in another language without clearly disclosing this to the consumer before the
consumer is committed to the transaction.

(9) Stating or otherwise creating the impression that a product can legally be sold when it cannot.

(10) Presenting rights given to consumers in law as a distinctive feature of the trader's offer.

(11) Using editorial content in the media to promote a product where a trader has paid for the promotion without
making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is
without prejudice to Council Directive 89/552/EEC (1).

(12) Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the

consumer or his family if the consumer does not purchase the product.

(13) Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the
opportunity to receive compensation that is derived primarily from the introduction of other consumers into the
scheme rather than from the sale or consumption of products.

(14) Claiming that the trader is about to cease trading or move premises when he is not.

(15) Claiming that products are able to facilitate winning in games of chance.

(16) Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

(17) Passing on materially inaccurate information on market conditions or on the possibility of finding the product with
the intention of inducing the consumer to acquire the product at conditions less favourable than normal market
conditions.

(18) Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described

or a reasonable equivalent.

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or adminis-
trative action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p. 23). Directive as
amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).

15.2.2005

EN

Official Journal of the European Union

C 38 E/13

(19) Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than
the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

(20) Including in marketing material an invoice or similar document seeking payment which gives the consumer the

impression that he has already ordered the marketed product when he has not.

Aggressive commercial practices

(21) Creating the impression that the consumer cannot leave the premises until a contract is formed.

(22) Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return

except in circumstances and to the extent justified, under national law, to enforce a contractual obligation.

(23) Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circum-
stances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice
to Article 10 of Directive 97/7/EC and Directives 95/46/EC (1) and 2002/58/EC.

(24) Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reason-
ably be considered relevant as to whether the claim was valid, in order to dissuade the consumer from exercising
his contractual rights.

(25) Including in an advertisement a direct appeal to children to persuade their parents or other adults to buy advertised

products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC.

(26) Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but
not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of
Directive 97/7/EC (inertia selling).

(27) Explicitly informing the consumer that if he does not buy the product or service, the trader's job or livelihood will

be in jeopardy.

(28) Creating the impression that the consumer has already won a prize without needing to make a purchase when in

fact the opportunity to win the prize or the award of the prize are dependent on the consumer buying a product.

(1) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard
to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). Directive as amended by
Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

C 38 E/14

EN

Official Journal of the European Union

15.2.2005

ANNEX II

COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR ADVERTISING AND COMMERCIAL
COMMUNICATION

Articles 4 and 5 of Directive 97/7/EC

Article 3 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (1)

Article 3(3) of 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 a right to use immovable properties
on a timeshare basis (2)

Article 3(4) of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer
protection in the indication of the prices of products offered to consumers (3)

Articles 86 to 100 of 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 (4)

Articles 5 and 6 of Directive 2000/31/EC of the European 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 (Directive on electronic
commerce) (5)

Article 1(d) of Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Direc-
tive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States
concerning consumer credit (6)

Articles 3 and 4 of Directive 2002/65/EC

Article 1(9) of Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending
Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to under-
takings for collective investment in transferable securities (UCITS) with a view to regulating management companies and
simplified prospectuses (7)

Articles 12 and 13 of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on
insurance mediation (8)

Article 36 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life
assurance (9)

Article 19 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in
financial instruments (10)

Articles 31 and 43 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and admin-
istrative provisions relating to direct insurance other than life assurance (11) (third non-life insurance Directive)

Articles 5, 7 and 8 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the
prospectus to be published when securities are offered to the public or admitted to trading (12).

(1) OJ L 158, 23.6.1990, p. 59.
(2) OJ L 280, 29.10.1994, p. 83.
(3) OJ L 80, 18.3.1998, p. 27.
(4) OJ L 311, 28.11.2001, p. 67. Directive as last amended by Directive 2004/27/EC (OJ L 136, 30.4.2004, p. 34.)
(5) OJ L 178, 17.7.2000, p. 1.
(6) OJ L 101, 1.4.1998, p. 17.
(7) OJ L 41, 13.2.2002, p. 20.
(8) OJ L 9, 15.1.2003, p. 3.
(9) OJ L 345, 19.12.2002, p. 1. Directive as amended by Council Directive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).
(10) OJ L 145, 30.4.2004, p. 1.
(11) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 2002/87/EC (OJ L 35, 11.2.2003, p. 1).
(12) OJ L 345, 31.12.2003, p. 64.

15.2.2005

EN

Official Journal of the European Union

C 38 E/15

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 24 June 2003, the Commission submitted to the Council a proposal for a Directive of the Euro-
pean Parliament and of the Council, based on Article 95 of the Treaty, concerning unfair business-
to-consumer practices in the Internal Market and amending Directives 84/450/EEC, 97/7/EC and
98/27/EC (the Unfair Commercial Practices Directive).

2. The European Parliament gave its opinion (1) in first reading on 20 April 2004.

The Economic and Social Committee gave its opinion (2) on 29 January 2004.

3. On 15 November 2004, the Council adopted its common position in accordance with Article 251

of the Treaty.

II. OBJECTIVE

The purpose of the Directive is to harmonise the Member States' regulation on unfair business to
consumer commercial practices which harm consumers' economic interests with a view to contributing
to the proper functioning of the internal market and to achieving a high level of consumer protection.

The text:

— defines the conditions which determine whether a commercial practice is unfair;

— contains a general prohibition of such unfair practices, elaborating on two key types of unfair prac-

tices (which are either misleading or aggressive).

III. ANALYSIS OF THE COMMON POSITION

1. General remarks

In general, the Council has followed the European Parliament's first reading opinion and the
Commission's position on such opinion. It has integrated in its common position 51 out of the 58
Amendments accepted by the Commission, either in whole or partly. It has also endorsed 4 Amend-
ments (43, 64, 91 and 110) which the Commission had initially indicated it was unable to accept.

The common position represents a balance of concerns and interests with the main results of:

— maintaining the general prohibition of unfair commercial practices (Article 5), with Annex I
containing the list of those commercial practices which shall in all circumstances be regarded as
unfair;

— retaining the proposed average consumer benchmark but with the inclusion of explicit provi-

sions for the protection of the vulnerable consumer (notably in Article 5, paragraph 3);

— deleting the country of origin clause originally proposed by the Commission;

— maintaining the clause of free circulation of services or goods whereby free circulation cannot

be restricted for reasons falling within the field approximated by this Directive (Article 4);

(1) OJ C 104 E, 30.4.2004.
(2) OJ C 108, 30.4.2004, p. 81.

C 38 E/16

EN

Official Journal of the European Union

15.2.2005

— temporarily allowing Member States to apply national provisions within the field approximated
by this Directive which are more restrictive or prescriptive than this Directive and which imple-
ment directives containing minimum harmonisation clauses (Article 3, paragraphs 5 and 6);

— clarifying the scope of the Directive notably in relation to certain professions, products or activ-

ities (Article 3, paragraphs 8, 9 and 10); and

— inserting a review clause (Article 18).

The Commission has accepted the common position agreed by the Council.

2. European Parliament Amendments

In its Plenary vote on 20 April 2004, the European Parliament adopted 94 Amendments to the
proposal.

The Council:

(a) introduced in the common position 7 Amendments without modification as follows:

Recitals:

Amendment 1 (on Recital 6 — objective/scope);

Amendment 5 (on Recital 10 — objective/scope);

Amendment 10 (on recital 14 — codes of conduct);

Articles:

Amendment 19 (on Article 2, point (h) — definition of ‘Community level code’);

Amendment 23 (on Article 2, point (l) — definition of ‘undue influence’);

Annexes:

Amendment 71 (on Annex 1, ‘Misleading commercial practices’, point (5)).

Amendment 91 (on Annex 1, ‘Aggressive commercial practices’, point (7)).

(b) introduced in the common position 48 Amendments in part and/or with drafting or other

modifications as follows:

Recitals:

Amendment 112 (on Citation 1 adding Article 153 of the Treaty to the legal base): a new Recital
1 which refers to Article 153 has been inserted;

Amendment 105 (on Recital 5 — objective/scope): Amendment incorporated through the new
wording of Recital 6 which clarifies the relationship with national rules on areas outside the
scope of the Directive;

Amendment 6 (on Recital 11 — ‘look alike products’ and ‘passing off’): the purpose of the
Amendment has been taken over in the new wording of Recital 14;

Amendment 7 (on Recital 11a (new) — status of Annex I on ‘Misleading commercial practices’):
the effect sought by the Amendment has been taken over in the new wording of Recital 17;

15.2.2005

EN

Official Journal of the European Union

C 38 E/17

Amendment 8 (on Recital 13 — vulnerable consumers): the preoccupation of the Amendment
has been taken into consideration in the new wording of Recital 19 which clarifies the concept
of vulnerable consumer;

Amendment 106 (on Recital 13a (new) — vulnerable consumers): the preoccupation of the
Amendment has been taken into consideration in the new wording of Recital 19 (see also
above on Amendment 8);

Amendment 9 (on Recital 14 — codes of conduct): the purpose of the Amendment has been
taken over in the new wording of Recital 20 with some redrafting, taking account of the
existing legislation;

Articles:

Amendment 107 (on Article 2, point (b) — definition of ‘average consumer’): the preoccupation
of the Amendment has been taken into consideration in the new wording of Recital 18;

Amendment 13 (on Article 2, point (ba) (new) — definition of ‘particular group of customers’):
the preoccupation of the Amendment has been taken into consideration in the new wording of
Article 5, paragraph 3 (see also above on Amendment 8);

Amendment 14 (on Article 2, point (c) — definition of ‘seller or supplier’): the purpose of the
Amendment has been taken over in the new wording of point (b), taking into account that the
present Directive does not regulate liability;

Amendment 17 (on Article 2, point (g) — definition of ‘code of conduct’): the preoccupation of
the Amendment has been taken into consideration in the new wording of point (f);

Amendment 104 (on Article 2, point (g) — definition of ‘code of conduct’): the purpose of the
Amendment has been taken over in the new wording of Recital 20;

Amendments 21 and 108 (on Article 2, point (j) — definition of ‘professional diligence’): the
concepts contained in those Amendments have been incorporated in the new wording of point
(h);

Amendment 24 (on Article 2, point (la) (new) — definition of ‘firm commitment’): the purpose
of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b);

Amendment 25 (on Article 3, paragraph 1 — scope): the first part of the Amendment has been
taken over in this paragraph whilst the second part is already captured in Article 2, point (k);

Amendment 27 (on Article 3, paragraph 6a (new) — scope): the purpose of the Amendment has
been taken over in Article 3, paragraphs 8, 9 and 10;

Amendment 28 (on Article 4, paragraph 2a (new) — scope): the preoccupation of the Amend-
ment has been taken into consideration in the new wording of Recital 9;

C 38 E/18

EN

Official Journal of the European Union

15.2.2005

Amendment 109 (on Article 4, paragraphs 2b and 2c (new) — temporary derogation): the effect
sought by the Amendment has been taken over in Article 3, paragraphs 5 and 6, with some
redrafting;

Amendment 29 (on Article 5, paragraph 2, indent 1 — good faith): the purpose of the Amend-
ment has been taken over in the new wording of Article 2, point (h) (see also Amendment
108);

Amendment 110 (on Article 5, paragraph 2, indent 2 — vulnerable consumer): the preoccupa-
tion of the Amendment has been taken into consideration in the new wording of Article 5,
paragraph 3 (see also above on Amendment 8);

Amendment 33 (on Article 5, paragraph 4 — status of Annex I): the purpose of the Amendment
has been taken over in the new wording of the paragraph as well as in Recital 17;

Amendment 34 (on Article 6, paragraph 1, introductory part — concept of ‘misleading commer-
cial practice’): the purpose of the Amendment has been taken over in Article 2, point (k);

Amendment 37 (on Article 6, paragraph 1, point (f) — concept of ‘misleading commercial prac-
tice’): the concern motivating the Amendment has been addressed by the deletion of this point;

Amendment 39 (on Article 6, paragraph 2,
introductory sentence — concept of ‘misleading
commercial practice’): the purpose of the Amendment has been taken over in Article 2, point
(k);

Amendment 40 (on Article 6, paragraph 2, point (b), indent 3 (new) — concept of ‘misleading
commercial practice’): the purpose of the Amendment has been taken over in the new wording
of Article 6, paragraph 2, point (b), indent 2;

Amendments 43, 44 and 45 (on Article 7, paragraph 1 — concept of ‘misleading omissions’): the
preoccupation of the Amendments has been taken over in the new wording of Article 7, para-
graphs 1 and 3;

Amendment 47 (on Article 7, paragraph 2 — concept of ‘misleading omissions’): the second part
of the Amendment has been taken over in the new wording of the paragraph whereas the first
part is covered by Article 7, paragraphs 1 and 3;

Amendments 111 and 59 (on Article 9, point (c) — exploitation of specific misfortunes or
circumstances): the effect sought by the Amendment has been taken over in the new wording
of the point;

Amendment 103 (on Article 10 — enforcement of codes of conduct): the purpose of the Amend-
ment has been taken over in the new wording of the Article;

Amendment 61 (on Article 10, paragraph 1 (new) — content and drafting of codes of conduct):
the purpose of the Amendment has been taken over in the new wording of Recital 20 (see also
Amendment 9);

Amendments 64 and 65 (on Article 11, paragraph 1, subparagraph 4 — non liability of a code
owner): the concern underlying the Amendments has been addressed by the new wording of
Article 11, paragraph 1, subparagraph 4, indent 2;

Amendment 67 (on Article 14, paragraph 5 — non liability of a code owner): the purpose of the
Amendment has been taken over in the new wording of Article 14, paragraph 4, subparagraph
2, point (b) (see Amendments 64 and 65);

Amendment 68 (on Article 17 — transposition of the future directive): the effect sought by the
Amendment has been taken over in the new wording of the point;

15.2.2005

EN

Official Journal of the European Union

C 38 E/19

Amendment 69 (on Article 17a (new) revision): the purpose of the Amendment has been taken
over in Article 18, with modifications in the wording;

Annexes:

Amendment 99 (on Annex 1, ‘Misleading commercial practices’, point (3)): the effect sought by
the Amendment has been taken over in the wording of point (5);

Amendment 73 (on Annex 1, ‘Misleading commercial practices’, point (9)): the purpose of the
Amendment has been taken over in the wording of point (12);

Amendment 76 (on Annex 1, ‘Misleading commercial practices’, point (12): the purpose of the
Amendment has been taken over in the wording of new point (14);

Amendment 84 (on Annex 1, ‘Misleading commercial practices’, point (12h) (new)): the purpose
of the Amendment has been taken over in the wording of new point (18), with some modifica-
tions in order to clarify its application;

Amendment 85 (on Annex 1, ‘Aggressive commercial practices’, point (2)): the purpose of the
Amendment has been taken over in the wording of new point (22), with some modifications in
order to clarify its application;

Amendment 87 (on Annex 1,
‘Aggressive commercial practices’, point (3), subparagraph 1a
(new)): the purpose of the Amendment has been taken over in the wording of new point (23),
with a view to clarify its application;

Amendment 88 (on Annex 1, ‘Aggressive commercial practices’, point (4)): the purpose of the
Amendment has been addressed by the deletion of this point;

Amendment 90 (on Annex 1, ‘Aggressive commercial practices’, point (6)): the purpose of the
Amendment has been taken over in the wording of new point (25), with some modifications in
order to clarify its application;

Amendment 92 (on Annex 1, ‘Aggressive commercial practices’, point (7)): the purpose of the
Amendment has been taken over in the wording of new point (26), with some modifications in
order to clarify its application;

(c) did not include 39 Amendments (2, 3, 4, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52,
53, 54, 55, 57, 60, 62, 63, 66, 70, 97, 72, 74, 75, 77, 78, 79, 80, 81, 82, 83, 86, 89 and 94)
in the common position.

With respect to Amendments 3, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55,
57, 63, 66, 70, 97, 74, 75, 77, 78, 79, 81, 82, 83, 86 and 94, the Council followed the posi-
tion expressed by the Commission.

In relation to Amendments 2, 4, 60, 62, 72, 80 and 89, accepted in full or in part by the
Commission but not included in the common position:

Recitals:

Amendment 2 (on Recital 8 — objective/scope of the future directive): the drafting of the
Amendment would reduce certainty about the harmonising effect of the Directive whilst the
new wording of Recital 11 makes clear that the scope of the text is limited;

C 38 E/20

EN

Official Journal of the European Union

15.2.2005

Amendment 4 (on Recital 10 — objective/scope): the drafting of the Amendment would reduce
certainty that, within the field approximated by the Directive, the Member States will not be
able to keep any general prohibitions which do not conform to that in the Directive;

Articles:

Amendment 60 (on Article 9, point (e) — good faith): the issue of the burden of proof should be
left outside the scope of the text as indicated in Recital 21 and the Amendment could not be
accepted;

Amendment 62 (on Article 10, paragraph 1a (new) — optional procedures): the Directive does
not regulate the nature of the procedures which could be used under Article 10 so the possibili-
ties referred to in the Amendment are already available;

Annexes:

Amendment 72 (on Annex 1,
‘Misleading commercial practices’, point (8)): the Amendment
could not be accepted as it does not define a practice which is in all circumstances unfair,
which is the criterion for inclusion in the Annex;

Amendment 80 (on Annex 1, ‘Misleading commercial practices’, point (12d) (new)): the practice
identified in the Amendment is difficult to distinguish in practice from a legitimate practice;

Amendment 89 (on Annex 1, ‘Aggressive commercial practices’, point (5)): the effect sought by
the Amendment is unclear but the drafting could notably capture non-consumers (which are
outside the scope of the Directive).

3. Other innovations introduced by the Council

The other innovations introduced in the common position are:

— the adjustment of several definitions (the definitions in Article 2 of ‘invitation to purchase’ and
‘undue influence’ are modified, a new definition of ‘transactional decision’ is inserted and the
definitions of ‘average consumer’ and of ‘Community level code’ are deleted);

— adjustments to the criteria for misleading actions (Article 6);

— the clarification of the status and content of the Annexes (several points of the Annexes are modified,
new Recitals 15 and 17 on the status of the Annexes are inserted, Article 5, paragraph 5,
dealing with Annex I is modified accordingly).

IV. CONCLUSION

The Council considers that its common position, which incorporates the Amendments mentioned in
Sections III.2(a) and (b), takes good account of the opinion of the European Parliament in first reading.

It represents a balanced solution which ensures both the protection of the consumer and the good
functioning of the internal market as this new common framework will simplify the legislative environ-
ment in which traders and consumers operate whilst guaranteeing at the same time a high level of
consumer protection.