Amended proposal for a directive of the European Parliament and of the Council on injunctions for the protection of consumers' interests  (Codified version)
Date: 2006-11-16
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, 16.11.2006 
COM(2006) 692 final 

2003/0099 (COD) 

Amended 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 pursuant to Article 250 (2) of the EC Treaty) 

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1. 

2. 

3. 

EXPLANATORY MEMORANDUM 

On  12  May  2003,  the  Commission  presented  a  proposal  for  a  Directive  of  the 
European  Parliament  and  of  the  Council  codifying  Directive  98/27/EC  of  the 
European  Parliament  and  of  the  Council  of  19  May  1998  on  injunctions  for  the 
protection of consumers' interests1. 

In its opinion of 11 June 2003, the Consultative Working Party of the legal services 
set up under the Interinstitutional Agreement of 20 December 1994 on an accelerated 
working method for official codification of legislative texts2 has stated that the above 
proposal  does  indeed  confine  itself  to  straightforward  codification,  without  any 
substantive changes to the acts covered by it. 

In view of the new amendments3 which have adopted in the meantime to the initial 
proposal  referred  to  at  point  1,  the  Commission  has  decided  to  present  –  in 
accordance  with  Article  250(2)  of  the  EC  Treaty  –  an  amended  proposal  for 
codification of the Directive in question. 

This amended proposal also takes account of the purely formal or editorial changes 
proposed  by  the  Consultative  Working  Party  of  Legal  Services,  where  these  are 
considered justified4. 

4. 

The changes made in this amended proposal, compared with the proposal referred to 
in point 1, are the following: 

(1) 

(2) 

In Article 10, the words “the twentieth day following that of its publication in 
the Official Journal of the European Union” have been replaced by the words 
“12 December 2007”. 

In Annex I, point 1, the reference to Directive 84/450/EEC has been replaced 
by  a  reference  to  Directive  2005/29/EC.  For  a  presentation  in  chronological 
order, that point is now point 12. Following that change, the numbering of the 
Directives has been adapted accordingly. 

(3) 

In Annex I, point 7 is replaced by the following: 

«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),  as last  amended  by  Directive  2005/29/EC  (OJ  L  149, 
11.6.2005, p. 22). » 

(4) 

In Annex I, point 10 is replaced by the following: 

«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 

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2 
3 
4 

COM(2003) 241 final of 12.5.2003. 
OJ C 102, 4.4.1996, p. 2. 
Directive 2005/29/CE (OJ L 149, 11.6.2005, p. 22). 
Opinion  transmitted  to  the  European  Parliament,  to  the  Council  and  to  the  Commission, 
on 10 July 2003. 

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human use: Articles 86 to 100 (OJ L 311, 28.11.2001, p. 67), as last amended 
by Directive 2004/27/EC (OJ L136, 30.4.2004, p. 34).» 

(5) 

In Annex I, point 11 is replaced by the following: 

«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),  as  amended  by  Directive 
2005.29.EC (OJ L 149, 11.6.2005, p. 22).» 

(6)  Footnote 9 has been replaced by the following: 

“The Directive referred to in points 5, 7, 10 and 12 include specific provisions 
concerning injunctions.” 

5. 

6. 

In Annex II, Parts A and B have been modified accordingly. 

To  facilitate  reading  and  examination,  the  full  text  of  the  amended  proposal  for 
codification is also attached hereto. 

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(cid:208) 98/27/EC (adapted) 

2003/0099 (COD) 

Amended 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 ⌦ 95 ⌫ thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the ⌦ European ⌫ Economic and Social Committee1, 

Acting in accordance with the procedure laid down in Article ⌦ 251 ⌫ of the Treaty2, 

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' interests3 has been substantially amended 
several  times4.  In  the  interests  of  clarity  and  rationality  the  said  Directive  should  be 
codified. 

(cid:208)  

(2) 

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

(cid:208) 98/27/EC Recital 1 

1 
2 
3 

4 

OJ C […] […], p. […]. 
OJ C […] […], p. […]. 
OJ L 166 of 11.6.1998, p. 51. Directive as last amended by Directive 2005/29/EC (OJ L 149, 11.6.2005, 
p. 22). 
See Annex II, Part A. 

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(3) 

(4) 

(5) 

(6) 

(7) 

(cid:208) 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:208) 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:208) 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:208) 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:208) 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. 

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(8) 

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

(cid:208) 98/27/EC Recital 7 

(cid:208) 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:208) 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:208) 98/27/EC Recital 10 

(cid:208) 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:208) 98/27/EC Recital 12 

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(cid:208) 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:208) 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. 

(16) 

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:208) 98/27/EC Recital 15 

(17)  The  application  of  this Directive  should  not  prejudice the  application  of  Community 

competition rules. 

(cid:208) 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  and  application  in  national  law  of  the 
Directives set out in Annex II, Part B, 

(cid:208)  

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HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 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. 

2.  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 

1. 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) 

(b) 

(c) 

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

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; 

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. 

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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. 

(cid:208) 98/27/EC (adapted) 

Article 4 

Intra-Community infringements 

1.  Each  Member  State  shall  take  the  measures  necessary  to  ensure  that,  in  the  event  of  an 
infringement  originating  in  that  Member  State,  any  qualified  entity  from  another  Member 
State  where  the  interests  protected  by  that  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 ⌦ of this Article. ⌫ The courts or administrative authorities 
shall accept this list as proof of the legal capacity of the qualified entity without prejudice to 
their right to examine whether the purpose of the qualified entity justifies its taking action in a 
specific case. 

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

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

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(cid:208) 98/27/EC 

Article 5 

Prior consultation 

1.  Member  States  may  introduce  or  maintain  in  force  provisions  whereby  the  party  that 
intends  to  seek  an  injunction  can  only  start  this  procedure  after  it  has  tried  to  achieve  the 
cessation  of  the  infringement  in  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. 

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

(cid:208) 98/27/EC (adapted) 

Article 6 

Reports 

1. Every three years and for the first time no later than ⌦ 21 July 2003 ⌫ the Commission 
shall  submit  to  the  European  Parliament  and  the  Council  a  report  on  the  application  of  this 
Directive. 

2. In its first report the Commission shall examine in particular: 

⌦ (a) ⌫ 

the  scope  of  this  Directive  in  relation  to  the  protection  of  the  collective 
interests of persons exercising a commercial, industrial, craft or professional activity; 

⌦ (b) ⌫ 

the scope of this Directive as determined by the Directives listed in Annex I; 

⌦ (c) ⌫ 

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. 

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(cid:208) 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:208) 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. 

(cid:208)  

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 and application 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:208) 98/27/EC Article 9 (adapted) 

Article 10 

Entry into force 

This Directive shall enter into force on ⌦ 12 December 2007 ⌫. 

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(cid:208) 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 
[…] 

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(cid:208) 98/27/EC Annex 

ANNEX I 

LIST OF DIRECTIVES COVERED BY ARTICLE 11 

1. 

2. 

3. 

4. 

5. 

6. 

(cid:208) 98/27/EC 

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 
of the European Parliament and of the Council (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  of  the  European 
Parliament and of the Council (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:208) 98/27/EC Annex pt. 7 

(cid:208) 98/27/EC Annex pt. 8 

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

the  European  Parliament  and  of 

1 

The Directives referred to in points 5, 7, 10 and 12 contain specific provisions concerning injunctions. 

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7. 

8. 

9. 

(cid:208) 98/27/EC Annex pt. 9 (adapted) 

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),  ⌦ as last  amended  by  Directive  2005/29/EC  (OJ  L  149,  11.6.2005,  p. 
22). ⌫ 

Directive  1999/44/EC  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). 

the  European  Parliament  and  of 

(cid:208) 1999/44/EC Art. 10 

(cid:208) 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:208) 98/27/EC (adapted) 

⌦ 10.  Directive  2001/83/EC  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),  as  last  amended  by 
Directive 2004/27/EC (OJ L136, 30.4.2004, p. 34). ⌫ 

the  European  Parliament  and  of 

(cid:208) 2002/65/EC Art. 19 (adapted) 

11. 

the  European  Parliament  and  of 

Directive  2002/65/EC  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)⌦ , as amended by Directive 2005.29.EC 
(OJ L 149, 11.6.2005, p. 22). ⌫ 

(cid:208) 2005/29/EC Art.16(1) (adapted) 

⌦ 12.  Directive  2005/29/EC  of 

the  Council 
of 11 May 2005 concerning unfair business-to-consumer commercial practices in the 
internal market (OJ L 149, 11.6.2005, p. 22). ⌫ 

the  European  Parliament  and  of 

_____________ 

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(cid:207) 

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 
(OJ L 171, 7.7.1999, p. 12) 

Article 10 only 

Directive 2000/31/EC of the European Parliament 
and of the Council 
(OJ L 178, 17.7.2000, p. 1) 

Article 18(2) only 

Directive 2002/65/EC of the European Parliament 
and of the Council 
(OJ L 271, 9.10.2002, p. 16) 

Article 19 only 

Directive 2005/29/EC of the European Parliament 
and of the Council 
(OJ L 149, 11.6.2005, p. 22) 

Article 16(1) only 

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

Directive 

Deadline for transposition 

Date of application  

98/27/EC 

1999/44/EC 

2000/31/EC 

2002/65/EC 

2005/29/EC 

1 January 2001 

1 January 2002 

17 January 2002 

9 October 2004 

_ 

_ 

_ 

_ 

12 June 2007 

12 December 2007 

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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 

_____________ 

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