CELEX: 51996PC0700
Language: en
Date: 1996-12-13
Title: AMENDED PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING DIRECTIVE 84/450/EEC CONCERNING MISLEADING ADVERTISING SO AS TO INCLUDE COMPARATIVE ADVERTISING

COMMISSION OF THE EUROPEAN COMMUNITIES
                                      Brussels, 13.13.1996
                                      COM(96) 700 final - COD 343
            OPINION OF THE COMMISSION
    pursuant to Article 189 b (2) (d) of the EC Treaty,
         on the European Parliament's amendments
     to the Council's common position regarding the
                       proposal for a
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
         AMENDING DIRECTIVE 84/450/EEC
   CONCERNING MISLEADING ADVERTISING
SO AS TO INCLUDE COMPARATIVE ADVERTISING
 AMENDING THE PROPOSAL OF THE COMMISSION
      pursuant to Article 189 a (2) of the EC Treaty
 ---pagebreak---  ---pagebreak---                            EXPLANATORY MEMORANDUM
I       THE BACKGROUND
On 19 March 1996 the Council of the European Union established a common position
with a view to the adoption of a Directive amending Directive 84/450/EEC concerning
misleading advertising so as to include comparative advertising.
On 23 October 1996 the European Parliament adopted at its second reading, in the
framework of the co-decision procedure, its opinion on the common position (rapporteur:
Mrs Oomen-Ruijten). This opinion contains 16 amendments, eight of which were
accepted by the Commission at its plenary meeting.
Pursuant to Article 189b(2)(d) of the Treaty, the Commission must deliver an opinion to
the Council concerning Parliament's amendments. In this particular case the opinion alters
the Commission's proposal as provided for in Article 189a(2) of the Treaty.
H       THE COMMISSION'S POSITION ON THE AMENDMENTS
At its plenary meeting the Commission agreed to accept amendments 1, 2, 4, 8, 9, 16, 20
and 21. However the Commission cannot accept amendments 3, 6, 12, 13, 15, 17, 18 and
19, for the following reasons:
Amendments 3 and 15 concern comparative tests. At the Edinburgh European Council
in 1992, the Commission undertook to revise a series of proposals - including the
proposal on comparative advertising - so as to remove certain aspects that were
incompatible with the principle of proportionality In the case in point the Commission
considered that the provisions on comparative tests (which featured in the initial proposal)
could be withdrawn because they were not strictly necessary in order to achieve the
proposal's objectives.
Amendments 6, 18 and 19 concern voluntary regulatory systems. The creation of a
"European self-regulatory umbrella body" (Amendment 19) is unacceptable because of
the potential financial implications for the Community budget. The role of the national
self-regulatory bodies (Amendments 6 and 18) is already given due recognition in
Article 5 of Directive 84/450/EEC and Amendment 18 could lead to distortions not only
with regard to comparative advertising but also with regard to misleading advertising
(which is also covered by the same~provision).
 Amendments 12 and 13 have to be rejected because of the excessive and unreasonable
burden they would place on advertisers, bearing in mind the other conditions already
 contained in the text of the common position (Article 3a).
 ---pagebreak--- Amendment 17 modifies the first paragraph of Article 4 of Directive 84/450/EEC. If
accepted, its effect would be to allow Member States to "require prior recourse to other
established means of dealing with complaints, including those referred to in Article 5"
(self-regulatory procedures). Such an amendment could prevent or at any rate delay
consumer access to ordinary justice, and might well be incompatible with Article 6 of the
European Convention on Human Rights.
m       AMENDED PROPOSAL
In view of the above, and in compliance with the provisions governing the co-decision
procedure, the proposal has been amended by the Commission so as to include
Amendments 1, 2, 4, 8, 9, 16, 20 and 21 of the European Parliament.
 ---pagebreak---              AMENDED PROPOSAL FOR A EUROPEAN PARLIAMENT
                                AND COUNCIL DIRECTIVE
                          AMENDING DIRECTIVE 84/450/EEC
                     CONCERNING MISLEADING ADVERTISING
                SO AS TO INCLUDE COMPARATIVE ADVERTISING
COMMON POSITION OF THE COUNCIL                            AMENDED PROPOSAL
THE EUROPEAN PARLIAMENT AND                      THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN                      THE COUNCIL OF THE EUROPEAN
UNION,                                           UNION,
Having regard to the Treaty establishing the     Having regard to the Treaty establishing
European Community, and in particular            the European Community, and in
Article 100a thereof,                            particular Article 100a thereof,
Having regard to the proposal from the           Having regard to the proposal from the
Commission ,                                     Commission,
Having regard to the opinion of the Economic     Having regard to the opinion of the
and Social Committee ,                           Economic and Social Committee ,
Acting in accordance with the procedure          Acting in accordance with the procedure
referred to in Article 189b of the Treaty (3),   referred to in Article 189b of the Treaty,
(1) Whereas one of the Community's main          Unchanged
aims is to complete the internal market;
whereas measures must be adopted to ensure
the smooth running of the said market;
whereas the market comprises an area which
has no internal frontiers and in which goods,
persons, services and capital can move freely;
(2) Whereas the completion of the internal       (2) Whereas the completion of the internal
market will mean an ever wider range of          market will mean an ever wider range of
 1. OJNoC 180, 11.7.1991, p. 14.
2. OJ No C 49, 24.2.1992, p. 35.
                                               A
 ---pagebreak--- choice; whereas, given that consumers can and     choice; whereas given that consumers can
must make the best possible use ofthe internal    and must make the best possible use of the
market, and that advertising is a very            internal market, and that advertising is a
important means of creating genuine outlets       very important means of creating genuine
for all goods and services throughout the         outlets for all goods and services
Community, the basic provisions governing         throughout the European Community, the
the form and content of comparative               basic provisions governing the form and
advertising should be uniform and the             content of comparative advertising should
conditions of the use of comparative              be uniform and the conditions ofthe use of
advertising in the Member States should be        comparative advertising in the Member
harmonized; whereas this will help                States should be harmonised; whereas if
demonstrate the merits of the various             these conditions are met this will help
comparable products; whereas comparative          demonstrate objectively the merits of the
advertising can also stimulate competition        various comparable products; whereas
between suppliers of goods and services to the    comparative advertising can also stimulate
consumer's advantage;                             competition between suppliers of goods
                                                  and services to the consumer's advantage;
(3) Whereas the laws, regulations and             Unchanged
administrative provisions of the individual
Member States concerning comparative
advertising differ widely; whereas advertising
reaches beyond the frontiers and is received on
the territory of other Member States; whereas
the acceptance or non-acceptance of
comparative advertising according to the
various national laws may constitute an
obstacle to the free movement of goods and
services and create distortions of competition;
whereas, in particular, firms may be exposed
to forms of advertising developed by
competitors to which they cannot reply in
equal measure; whereas the freedom to
provide services relating to comparative
advertising should be assured; whereas the
Community is called on to remedy this
situation;
(4) Whereas the sixth recital of Council          Unchanged
Directive 84/450/EEC of 10 September 1984
relating to the approximation of laws,
regulations and administrative provisions of
the Member States concerning misleading
advertising" states that, after the harmonization
3. OJNoL250, 19.9.1984, p. 17.
 ---pagebreak--- of national provisions against misleading
advertising, 'at a second stage . . ., as far as
necessary, comparative advertising should be
dealt with, on the basis of appropriate
Commission proposals' ;
(5) Whereas point 3 (d) of the Annex to the      (5) Whereas point 3(d) ofthe Annex to the
Council resolution of 14 April 1975 on a         Council resolution of 14 April 1975 on a
preliminary programme of the European            preliminary programme of the European
Economic Committee for a consumer                Economic Committee for a consumer
protection and information policy includes       protection and information policy4
the right to information among the basic rights  includes the right to information among
of consumers; whereas this right is confirmed    the basic rights of consumers; whereas this
by the Council Resolution of 19 May 1981 on      right is confirmed by the Council
a second programme of the European               Resolution of 19 May 1981 on a second
Economic Community for a consumer                programme of the European Economic
protection and information policy , point 40 of  Community for a consumer protection and
the Annex, which deals specifically with         information policy , point 40 of the
consumer information; whereas comparative        Annex, which deals specifically with
advertising, when it compares relevant,          consumer         information;     whereas
verifiable and representative features and is    comparative advertising, when it compares
not misleading, is a legitimate means of         essential, verifiable and representative
informing consumers of their advantage;          features and is not misleading, may be a
                                                 legitimate means of informing consumers
                                                 of their advantage;
(6) Whereas it is desirable to provide a broad   Unchanged
concept of comparative advertising to cover all
modalities of comparative advertising;
 4. OJ No C 92, 25.4.1975, p. 1,
 5. OJNoC 133, 3.6.1981, p. 1.
 ---pagebreak--- (7) Whereas conditions of permitted              Unchanged
comparative advertising, as far as the
comparison is concerned, should be
established in order to determine which
practices relating to comparative advertising
may distort competition, cause damage to
competitors and have an adverse effect on
consumer choice; whereas such conditions of
permitted advertising should include criteria of
objective comparison of the features of goods
and services;
(8) Whereas the comparison of the price only     Unchanged
of goods and services should be possible if this
comparison respects certain conditions, in
particular that it shall not be misleading;
(9) Whereas, in order to prevent comparative     Unchanged
advertising being used in an anti-competitive
and unfair manner, only comparisons between
competing goods and services meeting the
same needs or intended for the same purpose
should be permitted;
(10) Whereas the conditions of comparative       Deleted
advertising should be cumulative and
respected in their entirety; whereas this shall
not prevent Member States from defining
modalities of implementation for each of the
conditions, in order to find the appropriate
solution in each case;
(11) Whereas these conditions should include,    Unchanged
in particular, consideration of the provisions
resulting from Council Regulation (EEC) No
2081/92 of 14 July 1992 on the protection of
geographical indications and designations of
origin for agricultural products and
foodstuffs , arid in particular Article 13
thereof, and of the other Community
provisions adopted in the agricultural sphere;
(12) Whereas Article 5 of First Council          Unchanged
6. OJNoL208, 24.7.1992, p. 1.
 ---pagebreak--- Directive 89/104 of 21 December 1988 to
approximate the laws of the Member States
relating to trade marks confers exclusive
rights on the proprietor of a registered trade
mark, including the right to prevent all third
parties from using, in the course of trade, any
sign which is identical with, or similar to, the
trade mark in relation to identical goods or
services or even, where appropriate, other
goods;
(13) Whereas it may, however, be                 Unchanged
indispensable, in order to make comparative
advertising effective, to identify the goods or
services of a competitor, making reference to a
trade mark or trade name of which the latter is
the proprietor;
(14) Whereas such use of another's trade mark,   Unchanged
trade name or other distinguishing 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 distinguish between them and thus to
highlight differences objectively;
(15) Whereas provisions should be made for       Unchanged
the legal and/or administrative means of
redress • mentioned in Articles 4 and 5 of
Directive 84/450/EEC to be available to
control comparative advertising which fails to
meet the conditions laid down by this
Directive; whereas Article 6 applies to
unpermitted comparative advertising in the
same way;
(16) Whereas Article 7 of Directive              Unchanged
 84/450/EEC allowing Member States to retain
or adopt provisions with a view to ensuring
 more extensive protection for consumers,
persons carrying on a trade, business, craft or
 1. OJ No L40, 11.2.1989, p. 1. Directive last amended by Decision 92/10/EEC
    ( O J N 0 L 6 , 11.1.1992, p. 35.)
 ---pagebreak--- profession, and the general public, should not
apply to comparative advertising, given that
the objective of amending the said Directive is
to establish conditions under which
comparative advertising is permitted;
(17) Whereas a comparison which presents          Unchanged
goods or services as an imitation or a replica
of goods or services bearing a registered trade
mark shall not be considered to fulfil the
conditions to be met by permitted comparative
advertising;
(18) Whereas this Directive in no way affects     Unchanged
Community provisions on advertising for
specific products and/or services or restrictions
or prohibitions on advertising in particular
media;
(19) Whereas if a Member State, in                Unchanged
compliance with the provisions of the Treaty,
prohibits advertising regarding certain goods
or services, this ban may, whether it is
imposed directly or by a body or organization
responsible under the law of that Member
State for regulating the exercise of a
commercial, industrial, craft or professional
activity, be extended to comparative
advertising;
(20) Whereas Member States shall not be           (20) Whereas Member States shall not be
obliged to permit comparative advertising for     obliged to permit advertising for goods or
goods or services on which they maintain or       services on which they maintain or
introduce bans, including bans as regards         introduce bans which comply with the
marketing methods or advertising which            provisions of the Treaty, including bans as
targets vulnerable consumer groups;               regards marketing methods or advertising
                                                  which target vulnerable consumer groups
                                                  and bans based on the codes of ethics laid
                                                  down by some professions in the exercise
                                                  of the self-regulating powers granted
                                                  under the general legal system;
(21)     Whereas     regulating    comparative    Unchanged
advertising is, under the conditions set out in
this Directive, necessary for the smooth
running of the internal market and~*whereas
action at Community level is required;
 ---pagebreak--- whereas the adoption of a Directive is the '
appropriate instrument because it lays down
uniform general principles while allowing the
Member States to choose the form and
appropriate method by which to attain these
objectives; whereas it is in accordance with the
principle of subsidiarity.
    HAVE ADOPTED THIS DIRECTIVE:
                      Article 1
Directive 84/450/EEC is hereby amended as           Unchanged
follows:
 1. the title shall be replaced by the following:   Unchanged
'Council Directive of 10 September 1984             Unchanged
concerning misleading and comparative
advertising" ;
2. Article 1 shall be replaced by the following:    Unchanged
'Article 1                                          Unchanged
The purpose of this Directive is to protect
consumers, persons carrying on a trade or
business or practising a craft or profession and -
the interests of the public in general against
misleading advertising and the unfair
consequences thereof and to lay down the
conditions        under      which     comparative
advertising is permitted/;
3. the following point shall be         inserted in Unchanged
Article 2:
'2 (a): "comparative advertising"       means any   Unchanged.
advertising which explicitly or by      implication
 identifies a competitor or goods       or services
offered by a competitor;' ;
 4. the following Article shall be added:           Unchanged
 'Article 3 a
  1. Comparative advertising shall, as far as the   Unchanged
 ---pagebreak--- comparison is concerned, be permitted when
the following conditions are met:
(a) it is not misleading according to Articles 2  Unchanged
(2), 3 and 7(1);
(b) it compares goods or services meeting the     Unchanged
same needs or intended for the same purpose;
(c) it objectively compares one or more           (c)   it objectively compares one or
material, relevant verifiable and representative        more essentia^ verifiable and
features of those goods and services, which             representative features of those
may include price;                                      goods and services, which may
                                                        include price;
(d) it does not create confusion in the market    Unchanged
place 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;
(e) it does not discredit or denigrate the trade  (e)   it does not discredit or denigrate
marks, trade names, other distinguishing                the trade marks, trade names, other
marks, goods, services or activities of a               distinguishing     marks, goods,
competitor;                                             services or activities, personal
                                                        qualities or circumstances of a
                                                        competitor;
(f) for products with designation of origin, it - Unchanged
relates in each case to products with the same
designation;                 «
(g) it does not take unfair advantage of the      Unchanged
reputation of a trade mark, trade name or other
distinguishing marks of a competitor or of the
designation of origin of competing products.
                                                  (h)   in the case of professional services,
                                                        it does not conflict with codes of
                                                        conduct which comply with the
                                                        provisions of the Treaty and have
                                                        been laid down in the exercise of
                                                        the self-regulating powers granted
                                                        under the general legal system.
2. Any comparison referring to a special offer    Unchanged
shall indicate in a clear and unequivocal way
 ---pagebreak--- the date on which the offer ends or, where
appropriate, that the special offer is subject to
the availability of the goods and services, and,
where the special offer has not yet begun, the
date ofthe start ofthe period during which the
special price or other specific conditions shall
apply/;
5. the first and second subparagraphs of          Unchanged
Article 4 (1) shall be replaced by the
following:
'1. Member States shall ensure that adequate      Unchanged
and effective means exist for the control of
misleading advertising and for the compliance
with the provisions on comparative advertising
in the interests of consumers as well as
competitors and the general public.
Such means shall include legal provisions         Unchanged
under which persons or organizations regarded
under national law as having a legitimate
interest in prohibiting misleading advertising
or regulating comparative advertising may:
(a) take legal action against such advertising;   Unchanged
 and/or
(b) bring such advertising before an • Unchanged
administrative authority competent either to
decide on complaints or to initiate appropriate
legal proceedings/;
6. Article 4 (2) is hereby amended as follows:    Unchanged
(a) the indents in the first subparagraph shall   Unchanged
be replaced by the following:
'- to order the cessation of, or to institute     Unchanged
appropriate legal proceedings for an order for
the cessation of, misleading or unpermitted
comparative advertising, or
- if the misleading or unpermitted comparative    Unchanged
advertising has not yet been published but
publication is imminent, to order the
prohibition of, or to institute appropriate legal
 ---pagebreak--- proceedings for an order for the prohibition of,
such publication/ ;
(b) the introductory wording to the third             Unchanged
subparagraph shall be replaced by the
following:
'Furthermore, Member States may confer upon           Unchanged
the courts or administrative authorities powers
enabling them, with a view to eliminating the
continuing effects         of misleading or
unpermitted comparative advertising, the
cessation of which has been ordered by a final
decision/;
7. Article 5 shall be replaced by the following:     Unchanged
 'Article 5
This Directive does not exclude the voluntary        Unchanged
control of misleading or comparative
advertising by self-regulatory bodies and
recourse to such bodies by the persons or
organizations referred to in Article 4 if
proceedings before such bodies are in addition
to the court or administrative proceedings
referred to in that Article/ ;
8. Article 7 shall be replaced by the following:    • Unchanged
'Article 7
 1. This Directive shall not preclude Member          Unchanged
States from retaining or adopting provisions
with a view to ensuring more extensive
protection, with regard to misleading
advertising, for consumers, persons carrying
on a trade, business, craft or profession, and
the general public.
2. Paragraph 1 shall not apply to comparative         Unchanged
advertising as far as the comparison is
concerned.
3. The provisions of this Directive shall apply       Unchanged
without prejudice to Community provisions on
advertising for specific products and/or
                                                 10
 ---pagebreak---  services or to restrictions or prohibitions on
 advertising in particular media.
4. The provisions of this Directive conceming     Unchanged
 comparative advertising shall not oblige
Member States which, in compliance with the
provisions ofthe Treaty, maintain or introduce
 advertising bans regarding certain goods or
services, whether imposed directly or by a
body or organization responsible, under the
law of the Member States, for regulating the
exercise of a commercial, industrial, craft or
professional activity, to permit comparative
advertising regarding those goods or services.
Where these bans are limited to particular
media, the Directive shall apply to the media
not covered by these bans/.
                    Article 2
 1. Member States shall bring into force the      Unchanged
laws, regulations and administrative provisions
necessary to comply with this Directive at the
latest 30 months after its publication in the
Official     Journal      of   the     European
Communities. They shall forthwith inform the
Commission thereof.
2. When Member States adopt these measures,       Unchanged
they shall contain a reference to this Directive
or shall be accompanied by such reference on
the occasion of their official publication. The
methods of making such reference shall be
laid down by Member States.
3. Member States shall communicate to the         Unchanged
Commission the text ofthe main provisions of
domestic law which they adopt in the field
governed by this Directive.
                                               11
 ---pagebreak---                  Article 3
This Directive is addressed to the Member Unchanged
States.
Done at.. .
For the Council
The President
                                        12
 ---pagebreak---  ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                  ISSN 0254-1475
                                                          COM(96) 700 final
                                              DOCUMENTS
EN                                                                 10 08 16
                                    Catalogue number : CB-CO-96-708-EN-C
                                                            ISBN 92-78-13793-6
Office for Official Publications ofthe European Communities
L-2985 Luxembourg
                                          /\b