Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version)   (Text with EEA relevance)
Date: 2006-12-12
Institutions: Council of the European Union, European Parliament
Subjects: advertising malpractice, approximation of laws, codification of EU law, comparative advertising, consumer protection, restriction on competition

27.12.2006

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Official Journal of the European Union

L 376/21

DIRECTIVE 2006/114/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 12 December 2006

concerning misleading and comparative advertising

(codified version)

(Text with EEA relevance)

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

(6)

Having regard to the Treaty establishing the European Commu-
nity, 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)

(3)

(4)

(5)

Council Directive 84/450/EEC of 10 September 1984 con-
cerning misleading and comparative advertising (3) has
been substantially amended several times (4). In the inter-
ests of clarity and rationality the said Directive should be
codified.

The laws against misleading advertising in force in the
Member States differ widely. Since advertising reaches
beyond the frontiers of individual Member States, it has a
direct effect on the smooth functioning of the internal
market.

Misleading and unlawful comparative advertising can lead
to distortion of competition within the internal market.

Advertising, whether or not it induces a contract, affects
the economic welfare of consumers and traders.

The differences between the laws of the Member States on
advertising which misleads business hinder the execution
of advertising campaigns beyond national boundaries and
thus affect the free circulation of goods and provision of
services.

(1) Opinion of 26 October 2006 (not yet published in the Official Jour-

nal).

(2) Opinion of the European Parliament of 12 October 2006 (not yet
published in the Official Journal) and Council Decision of 30 Novem-
ber 2006.

(3) OJ L 250, 19.9.1984, p. 17. Directive as last amended by Directive
2005/29/EC of the European Parliament and of the Council (OJ L 149,
11.6.2005, p. 22).
(4) See Annex I, Part A.

The completion of the internal market means a wide range
of choice. Given that consumers and traders can and must
make the best possible use of the internal market, and that
advertising is a very important means of creating genuine
outlets for all goods and services throughout the Commu-
nity, the basic provisions governing the form and content
of comparative advertising should be uniform and the
conditions of the use of comparative advertising in the
Member States should be harmonised. If these conditions
are met, this will help demonstrate objectively the merits
of the various comparable products. Comparative adver-
tising can also stimulate competition between suppliers of
goods and services to the consumer’s advantage.

(7)

Minimum and objective criteria for determining whether
advertising is misleading should be established.

(8)

(9)

(10)

(11)

Comparative advertising, when it compares material,
relevant, verifiable and representative features and is not
misleading, may be a legitimate means of informing con-
sumers of their advantage. It is desirable to provide a broad
concept of comparative advertising to cover all modes of
comparative advertising.

Conditions of permitted comparative advertising, as far as
the comparison is concerned, should be established in
order to determine which practices relating to compara-
tive advertising may distort competition, be detrimental
to competitors and have an adverse effect on consumer
choice. Such conditions of permitted advertising should
include criteria of objective comparison of the features of
goods and services.

The international conventions on copyright as well as the
national provisions on contractual and non-contractual
liability should apply when the results of comparative tests
carried out by third parties are referred to or reproduced
in comparative advertising.

The conditions of comparative advertising should be
cumulative and respected in their entirety. In accordance
with the Treaty, the choice of forms and methods for the
implementation of these conditions should be left to the
Member States, insofar as those forms and methods are
not already determined by this Directive.

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(12)

These conditions should include, in particular, consider-
ation of the provisions resulting from Council Regulation
(EC) No 510/2006 of 20 March 2006 on the protection
of geographical indications and designations of origin for
agricultural products and foodstuffs (1), and in particular
Article 13 thereof, and of the other Community provi-
sions adopted in the agricultural sphere.

(13) Article 5 of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Mem-
ber States relating to trade marks (2) confers exclusive
rights on the proprietor of a registered trade mark, includ-
ing the right to prevent all third parties from using, in the
course of trade, any sign which is identical to, or similar
to, the trade mark in relation to identical goods or ser-
vices or even, where appropriate, other goods.

(19) While it is for national law to determine the burden of
proof, it is appropriate to enable courts and administra-
tive authorities to require traders to produce evidence as
to the accuracy of factual claims they have made.

(20)

Regulating comparative advertising is necessary for the
smooth functioning of the internal market. Action at
Community level is therefore required. The adoption of a
Directive is the appropriate instrument because it lays
down uniform general principles while allowing the Mem-
ber States to choose the form and appropriate method by
which to attain these objectives. It is in accordance with
the principle of subsidiarity.

(21)

This Directive should be without prejudice to the obliga-
tions of the Member States relating to the time-limits for
transposition into national law and application of the
Directives as set out in Part B of Annex I,

(14)

(15)

(16)

(17)

It may, however, be indispensable, in order to make com-
parative advertising effective, to identify the goods or ser-
vices of a competitor, making reference to a trade mark
or trade name of which the latter is the proprietor.

HAVE ADOPTED THIS DIRECTIVE:

Such use of another’s trade mark, trade name or other dis-
tinguishing marks does not breach this exclusive right in
cases where it complies with the conditions laid down by
this Directive, the intended target being solely to distin-
guish between them and thus to highlight differences
objectively.

Article 1

The purpose of this Directive is to protect traders against mis-
leading advertising and the unfair consequences thereof and to
lay down the conditions under which comparative advertising is
permitted.

Persons or organisations regarded under national law as
having a legitimate interest in the matter should have
facilities for initiating proceedings against misleading and
unlawful comparative advertising, either before a court or
before an administrative authority which is competent to
decide upon complaints or to initiate appropriate legal
proceedings.

Article 2

For the purposes of this Directive:

The courts or administrative authorities should have pow-
ers enabling them to order or obtain the cessation of mis-
leading and unlawful comparative advertising. In certain
cases it may be desirable to prohibit misleading and
unlawful comparative advertising even before it is pub-
lished. However, this in no way implies that Member
States are under an obligation to introduce rules requir-
ing the systematic prior vetting of advertising.

(a)

(b)

‘advertising’ means the making of a representation in any
form in connection with a trade, business, craft or profes-
sion in order to promote the supply of goods or services,
including immovable property, rights and obligations;

‘misleading advertising’ means any advertising which in any
including its presentation, deceives or is likely to
way,
deceive the persons to whom it is addressed or whom it
reaches and which, by reason of its deceptive nature, is likely
to affect their economic behaviour or which, for those rea-
sons, injures or is likely to injure a competitor;

(18)

The voluntary control exercised by self-regulatory bodies
to eliminate misleading or unlawful comparative advertis-
ing may avoid recourse to administrative or judicial action
and ought therefore to be encouraged.

(c)

‘comparative advertising’ means any advertising which
explicitly or by implication identifies a competitor or goods
or services offered by a competitor;

(1) OJ L 93, 31.3.2006, p. 12.
(2) OJ L 40, 11.2.1989, p. 1. Directive as amended by Decision

92/10/EEC (OJ L 6, 11.1.1992, p. 35).

(d)

‘trader’ means any natural or legal person who is acting for
purposes relating to his trade, craft, business or profession
and anyone acting in the name of or on behalf of a trader;

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(e)

‘code owner’ means any entity, including a trader or group
of traders, which is responsible for the formulation and revi-
sion of a code of conduct and/or for monitoring compli-
ance with the code by those who have undertaken to be
bound by it.

(f)

it does not take unfair advantage of the reputation of a trade
mark, trade name or other distinguishing marks of a com-
petitor or of
the designation of origin of competing
products;

Article 3

(g)

it does not present goods or services as imitations or repli-
cas of goods or services bearing a protected trade mark or
trade name;

In determining whether advertising is misleading, account shall
be taken of all its features, and in particular of any information
it contains concerning:

(a)

(b)

(c)

the characteristics of goods or services, such as their avail-
ability, nature, execution, composition, method and date of
manufacture or provision, fitness for purpose, uses, quan-
tity, specification, geographical or commercial origin or the
results to be expected from their use, or the results and mate-
rial features of tests or checks carried out on the goods or
services;

the price or the manner in which the price is calculated, and
the conditions on which the goods are supplied or the ser-
vices provided;

the nature, attributes and rights of the advertiser, such as his
identity and assets, his qualifications and ownership of indus-
trial, commercial or intellectual property rights or his awards
and distinctions.

(h)

it does not create confusion among traders, between the
advertiser and a competitor or between the advertiser’s trade
marks, trade names, other distinguishing marks, goods or
services and those of a competitor.

Article 5

1. Member States shall ensure that adequate and effective
means exist to combat misleading advertising and enforce com-
pliance with the provisions on comparative advertising in the
interests of traders and competitors.

Such means shall include legal provisions under which persons
or organisations regarded under national law as having a legiti-
mate interest in combating misleading advertising or regulating
comparative advertising may:

(a)

take legal action against such advertising;

Article 4

or

Comparative advertising shall, as far as the comparison is con-
cerned, be permitted when the following conditions are met:

(a)

it is not misleading within the meaning of Articles 2(b), 3
and 8(1) of this Directive or Articles 6 and 7 of Directive
2005/29/EC of the European Parliament and of the Council
of 11 May 2005 concerning unfair business-to-consumer
commercial practices in the internal market (‘Unfair Com-
mercial Practices Directive’) (1);

(b)

it compares goods or services meeting the same needs
or intended for the same purpose;

(c)

(d)

it objectively compares one or more material, relevant, veri-
fiable and representative features of those goods and ser-
vices, which may include price;

it does not discredit or denigrate the trade marks, trade
names, other distinguishing marks, goods, services, activi-
ties or circumstances of a competitor;

(e)

for products with designation of origin, it relates in each
case to products with the same designation;

(1) OJ L 149, 11.6.2005, p. 22.

(b) bring such advertising before an administrative authority
competent either to decide on complaints or to initiate
appropriate legal proceedings.

2.
It shall be for each Member State to decide which of the
facilities referred to in the second subparagraph of paragraph 1
shall be available and whether to enable the courts or adminis-
trative authorities to require prior recourse to other established
means of dealing with complaints, including those referred to in
Article 6.

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.

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Under the provisions referred to in paragraphs 1 and 2,
3.
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 interests
involved and in particular the public interest:

6. Where the powers referred to in paragraphs 3 and 4 are
exercised exclusively by an administrative authority, reasons for
its decisions shall always be given. In this case, provision must
be made for procedures whereby improper or unreasonable exer-
cise of its powers by the administrative authority or improper or
unreasonable failure to exercise the said powers can be the sub-
ject of judicial review.

(a)

to order the cessation of, or to institute appropriate legal
proceedings for an order for the cessation of, misleading
advertising or unlawful comparative advertising;

Article 6

or

(b)

if the misleading advertising or unlawful comparative adver-
tising has not yet been published but publication is immi-
nent, to order the prohibition of, or to institute appropriate
legal proceedings for an order for the prohibition of, such
publication.

The first subparagraph shall apply even where there is no proof
of actual loss or damage or of intention or negligence on the part
of the advertiser.

Member States shall make provision for the measures referred
to in the first subparagraph to be taken under an accelerated pro-
cedure either with interim effect or with definitive effect, at the
Member States’ discretion.

4. Member States may confer upon the courts or administra-
tive authorities powers enabling them, with a view to eliminat-
ing the continuing effects of misleading advertising or unlawful
comparative advertising, the cessation of which has been ordered
by a final decision:

This Directive does not exclude the voluntary control, which
Member States may encourage, of misleading or comparative
advertising by self-regulatory bodies and recourse to such bodies
by the persons or organisations referred to in the second sub-
paragraph of Article 5(1) on condition that proceedings before
such bodies are additional to the court or administrative proceed-
ings referred to in that Article.

Article 7

Member States shall confer upon the courts or administrative
authorities powers enabling them in the civil or administrative
proceedings referred to in Article 5:

(a)

to require the advertiser to furnish evidence as to the accu-
racy of factual claims in advertising if, taking into account
the legitimate interest of the advertiser and any other party
to the proceedings, such a requirement appears appropriate
on the basis of the circumstances of the particular case and in
the case of comparative advertising to require the advertiser
to furnish such evidence in a short period of time;

and

(a)

to require publication of that decision in full or in part and in
such form as they deem adequate;

(b)

to consider factual claims as inaccurate if the evidence
demanded in accordance with point (a) is not furnished or is
deemed insufficient by the court or administrative authority.

(b)

to require in addition the publication of a corrective
statement.

Article 8

The administrative authorities referred to in point (b) of the

5.
second subparagraph of paragraph 1 must:

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

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

(c) normally give reasons for their decisions.

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

The first subparagraph shall not apply to comparative advertis-
ing as far as the comparison is concerned.

2.
The provisions of this Directive shall apply without preju-
dice to Community provisions on advertising for specific prod-
ucts and/or services or to restrictions or prohibitions on
advertising in particular media.

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The provisions of this Directive concerning comparative
3.
advertising shall not oblige Member States which, in compliance
with the provisions of the Treaty, maintain or introduce adver-
tising bans regarding certain goods or services, whether imposed
directly or by a body or organisation responsible, under the law
of the Member States, for regulating the exercise of a commer-
cial, industrial, craft or professional activity, to permit compara-
tive advertising regarding those goods or services. Where these
bans are limited to particular media, this Directive shall apply to
the media not covered by these bans.

Article 10

Directive 84/450/EEC is hereby repealed, without prejudice to
the obligations of the Member States relating to the time-limits
for transposition into national law and application of the Direc-
tives, as set out in Part B of Annex I.

References made to the repealed Directive shall be construed as
being made to this Directive and should be read in accordance
with the correlation table set out in Annex II.

4.
Nothing in this Directive shall prevent Member States, in
compliance with the provisions of the Treaty, from maintaining
or introducing bans or limitations on the use of comparisons in
the advertising of professional services, whether imposed directly
or by a body or organisation responsible, under the law of the
Member States, for regulating the exercise of a professional
activity.

Article 11

This Directive shall enter into force on 12 December 2007.

Article 12

This Directive is addressed to the Member States.

Article 9

Done at Strasbourg, 12 December 2006.

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

For the European Parliament
The President
J. BORRELL FONTELLES

For the Council
The President
M. PEKKARINEN

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ANNEX I

PART A

Repealed Directive with its successive amendments

Council Directive 84/450/EEC

(OJ L 250, 19.9.1984, p. 17)

Directive 97/55/EC of the European Parliament and of the Council

(OJ L 290, 23.10.1997, p. 18)

Directive 2005/29/EC of the European Parliament and of the Council

only Article 14

(OJ L 149, 11.6.2005, p. 22)

PART B

List of time-limits for transposition into national law and application

(referred to in Article 10)

Directive

Time-limit for transposition

Date of application

84/450/EEC

97/55/EC

2005/29/EC

1 October 1986

23 April 2000

12 June 2007

—

—

12 December 2007

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ANNEX II

CORRELATION TABLE

Directive 84/450/EEC

This Directive

Article 1

Article 1

Article 2, introductory words

Article 2, introductory words

Article 2, point 1

Article 2, point 2

Article 2, point 2a

Article 2, point 3

Article 2, point 4

Article 3

Article 3a(1)

Article 2(a)

Article 2(b)

Article 2(c)

Article 2(d)

Article 2(e)

Article 3

Article 4

Article 4(1), first subparagraph, first sentence

Article 5(1), first subparagraph

Article 4(1), first subparagraph, second sentence

Article 5(1), second subparagraph

Article 4(1), second subparagraph

Article 5(2), first subparagraph

Article 4(1), third subparagraph

Article 5(2), second subparagraph

Article 4(2), first subparagraph, introductory words

Article 5(3), first subparagraph, introductory words

Article 4(2), first subparagraph, first indent

Article 5(3), first subparagraph, point (a)

Article 4(2), first subparagraph, second indent

Article 5(3), first subparagraph, point (b)

Article 4(2), first subparagraph, final words

Article 5(3), second subparagraph

Article 4(2), second subparagraph, introductory words

Article 5(3), third subparagraph

Article 4(2), second subparagraph, first indent

Article 5(3), third subparagraph

Article 4(2), second subparagraph, second indent

Article 5(3), third subparagraph

Article 4(2), second subparagraph, final words

Article 5(3), third subparagraph

Article 4(2), third subparagraph, introductory words

Article 5(4), introductory words

Article 4(2), third subparagraph, first indent

Article 5(4), point (a)

Article 4(2), third subparagraph, second indent

Article 5(4), point (b)

Article 4(3), first subparagraph

Article 4(3), second subparagraph

Article 5

Article 6

Article 7(1)

Article 7(2)

Article 7(3)

Article 7(4)

Article 7(5)

Article 8, first subparagraph

Article 8, second subparagraph

—

—

Article 9

—

—

Article 5(5)

Article 5(6)

Article 6

Article 7

Article 8(1), first subparagraph

Article 8(1), second subparagraph

Article 8(2)

Article 8(3)

Article 8(4)

—

Article 9

Article 10

Article 11

Article 12

Annex I

Annex II