CELEX: 51994PC0151
Language: en
Date: 1994-04-21
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE concerning comparative advertising and amending Directive 84/450/ECC concerning misleading advertising

COMMISSION OF THE EUROPEAN CORAIUNITIES
                                                   C0MC94) 151 f i n a l - COD 343
                                                    B r u s s e l s , 21.04.1994
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                              Amended proposal f o r a
                    EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
         Concerning comparative advertising and amending Directive 84/450/EEC
                           concerning misleading advertising
 M,"
          (presented by the Commission pursuant to Article 189 A (2)
                                 of the EC-Treaty)
. to
 ---pagebreak---                               EXPLANATORY MEMORANDUM
INTRODUCTION
Following the opinions delivered by the European Parliament1 and the Economic and
Social Committee2 on the proposal for a Council Directive concerning comparative
advertising and amending Council Directive 84/450/EEC concerning misleading
advertising3, the Commission is called upon to adopt a modified proposal, in so far as it
intends to accept the proposals and, where necessary, to make other changes to its initial
proposal.
Furthermore, as part of the debate on the extent and practical application of the principle
of subsidiarity, the Commission has included this proposal among those texts which it
undertook at the Council meeting in Edinburgh to examine in greater depth, with a view
to withdrawing provisions which would go into excessive detail in relation to the
objective pursued and to establishing general principles to be given more detailed form
bv Member States4
In the case of comparative advertising, the Commission has concluded, following an in-
depth discussion, that the essence of the proposal, namely harmonisation of the
regulations governing the fairness of comparative advertising, must be maintained and
that, in principle, a proposal modified in the light of amendments proposed by the
European Parliament, of the opinion of the Economic and Social Committee and of the
debates at Council level, may be presented in accordance with Article 189a(2) of the
TEU.
1.      GROUNDS FOR THE PROPOSAL IN TERMS OF SUBSIDIARITY
        a)         What are the objectives of the measure envisaged in relation to the Union's
                  obligations?
       Opinion of 18.11.92, PV 38 11 (EP 162.994)
       O J C 4 9 . 24.2.1992, p. 35.
       OJC 180, 11.7.1991, p. 14.
       Conclusion of the Presidency. The European Council of Edinburgh, 11/12 December 1992;
       Document SI(92) 1050, section A Annex 2, page 3.
                                                rl
 ---pagebreak--- R.  The objective of the measure is to facilitate the creation and functioning
   of the internal market at a high level of consumer protection by
   approximating laws governing comparative advertising; hence the measure
   will encourage the free movement of advertising services in so far as they
   will be governed by a harmonised regime in all the Member States.
b) Is the envisaged measure the exclusive competence of the Union or a
   competence shared with the Member States?
R  The harmonisation of Member States' laws governing comparative
   advertising is an exclusive competence of the Union.
c) What is the Community dimension of the problem?
R. The current situation in which comparative advertising is authorised in
   certain Member States and banned in others not only creates obstacles to
   the free movement of goods and services but also puts consumers,
   advertisers and publicity workers in certain Member States at a
   disadvantage, and the medium used (press, radio or television) leads to
   substantial distortions in competition.
d) What is the most effective solution when the Union's instruments are
   compared with those of the-Member States?
R. Harmonisation of legislation relating to comparative advertising in order
   to ensure that the consumer's right to information is respected and that
   appropriate safeguards are established to avoid disputes between
   advertisers resulting from incompatible legislation.
e) What is the concrete added value of the Union's envisaged measure and
   what would it cost to do nothing?
R. Given the entry into effect of the Treaty on European Union, the envisaged
   measure should make it possible to provide European consumers with
   better information, to stimulate competition and to cope with the rapid
   development of new communication techniques.
   To do nothing would deprive consumers of a useful source of information
   in making a rational choice and would create obstacles to the free
   movement of products and services and hence adversely affect free
   competition.
f) What instruments are at the Union's disposal?
R. The directive, because it is a question of amending an already existing
   directive.
 ---pagebreak---    g)         Are uniform rules necessary or is it enough to have a directive laying
              down general objectives, leaving implementation to the Member States?
   R.         A directive is sufficient.
2. ELEMENTS OF THE INITIAL PROPOSAL CONTAINED IN THE AMENDED PROPOSAL
   The title of the proposal remains unchanged. This also applies to the definition of
   comparative advertising.
   As to the means for controlling advertising (Article 1 (4)), given that such means
   have already been established by all the Member States in accordance with the
   provisions of Directive 84/350/EEC5 and that they are functioning properly, it is
   not considered necessary to amend the text of the initial proposal which extends
   to comparative advertising the scope of the provisions applied to misleading
   advertising.
   Likewise, Article 1 (6) concerning the validity of voluntary control of misleading
   advertising and comparative advertising by independent bodies remains
   unchanged.
   The Commission considers that systems for the voluntary control of advertising
   should be encouraged, as recognised in the sixteenth recital of Directive
   84/450/EEC; the fact that Article 5 of this Directive will also apply to
   comparative advertising is proof that the Commission is continuing to encourage
   such systems, particularly if account is taken of the principles of subsidiarity and
   proportionality; the Commission therefore considers it unnecessary to stress this
   aspect any further in the modified proposal.
   The reversal of the burden of proof established by Article 6 of Directive
   84/450/EEC also applies to comparative advertising. The Commission considers
   that maintaining this principle is fundamental, hence the explicit reference made
   in the new eleventh recital of the modified proposal.
   Finally, it has been agreed that the minimal character of the provisions relating
   to misleading advertising shall not be applicable to provisions governing
   comparative advertising, for the reasons already set out in the explanatory
   memorandum attached to the initial proposal.
   O J L 2 5 0 o f 19.9.1984, p. 17.
 ---pagebreak--- 3. THE AMENDMENTS INTRODUCED
   Recitals 3, 6 and 11 have been amended in order to bring them into line with the
   Parliament's amendments accepted by the Commission, concerning the conditions
   for authorising comparative advertising;
   The amendments contained in recital 4 are designed to refer specifically to
   obstacles to the principle of free movement and in particular the freedom to
   provide services relating to comparative advertising.
   Recital 12 has been amended because it was considered necessary to emphasise
   the fact that reversal of the burden of proof - one of the mainstays of Directive
   84/450/EEC - also applies to comparative advertising;
   Recital 14 has been amended, at Parliament's request, in order to establish clearly
   the relationship between comparative advertising and the advertising of certain
   specific products or services;
   As regards recital 15, it summarises the elements taken into consideration in order
   to bring the proposal into line with the subsidiarity principle.
   As regards the articles, the amendments concern Article 1 (3) and (7) and Article
   2
4. COMMENTS ON THE AMENDMENTS
   a)      Reducing the scope of the text
           However, it is not simply a question of modifying the text in accordance
           with the usual principles. Under the criteria set out in the document
           submitted to the Edinburgh Council, it was considered necessary to reduce
           the number of subjects covered in the proposal.
           The Commission has observed that the provisions concerning comparative
           tests, which are only indirectly linked to comparative advertising, may be
           completely removed from the text, not because they would be without
           foundation but because they do not appear to be strictly necessary in order
           to arrive at the legislative goal as set out and justified in the initial
           proposal6.
           This partial restructuring of the text involves the deletion of the ninth
           recital and of Article 3a(2) of the initial proposal. Amendments numbers
   COM(91) 147 of 21.6.1991.
 ---pagebreak---    4 and 14 put forward by Parliament and received favourably at the time
   by the Commission are now therefore superfluous.
   The text is therefore completely in accordance with the requirements of the
   principle of subsidiarity (see new fifteenth recital).
b) The limits of comparative advertising
   As the European Parliament has pointed out, the use of comparative
   advertising must be subject to strict limitations. While ensuring that the
   proposal is not completely stripped of meaning, the Commission has
   therefore, after an in-depth discussion as announced at the Edinburgh
   Council, accepted a number of suggestions from Parliament, reinforcing
   the text to this effect (see annexed tables). In particular, the new wording
   of Article 3a broadens the criteria set out in the initial proposal in order
   to ensure fairness in comparative advertising. The new subparagraph d) has
   been introduced to clarify an aspect which was also raised by the
   Economic and Social Committee: when a comparative reference is made
   to a service, it should relate only to the characteristics of the service itself
   and not to the intellectual qualities of the provider, which cannot be
   subject to comparison.
   A new paragraph 2 has been introduced in Article 3a at the request of
   Parliament, with the content having been specified by the Economic and
   Social Committee in its opinion, if "objective truth" is the guiding
   principle in the formulation and use of a comparative advertisement, this
   must also include the full "actuality" of the statement at the time it is
   disseminated; this applies particularly in the case of products and services
   which are the subject of a special offer or where the offer is of limited
   duration.
c) Relationship with sectoral advertising
   Both the European Parliament and the Economic and Social Committee
   have stated that they are particularly concerned with problems which might
   arise owing to the existence of specific regulations concerning advertising
   for items such as medicaments, tobacco products or foodstuffs. The
   Commission agrees with the opinion of the two institutions in so far as, in
   areas in which advertising is subject to partial bans or other more stringent
   restrictions, comparative advertising must also be governed by the same
   rules. Article 7 (3) has ben introduced precisely in support of this concept,
   which was already implicit in the initial proposal.
 ---pagebreak---                       PARLIAMENT'S OPINION
Amendment No. Initial proposal Accepted       Integrated
                                by the     (New numbering)
                               Commission
      1                        Yes
      2       Recital No 3     Yes partly  Recital No 2
      3       Recital No 6     Yes partly  Recital No 5
      4       Recital No 9     No
      5       Recital No 12    Yes         Recital No 10
      6       Recital No 13    No
      7       Recital No 14    No
      8                        Yes         Recital No 13
      9       Article 1.3      Yes partly  Article 1.3
     10       Article 1.3      No
     11       Article 1.3      Yes         Article 1.3
     12       Article 1.3      No
     13       Article 1.3      No
     14       Article 1.3      Yes partly  Not integrated
                                           (subsidiarity)
     15       Article 1.3      No
     16       Article 1.3      Yes         Article 1.3
     22       Article 1.3      No
     17       Article 1.6      No
     18       Article 1.6      No
     19       Article 1.7      Yes partly  Article 1.7
 ---pagebreak---         OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE
     Keynotes of the ECS opinion           Commission's position
2.6  Precise rules governing means of      Rejected. Directive 84/450/EEC contains
     controlling advertising               adequate provisions.
2.7  Conformity of comparative advertising Accepted. Article 1.7
     with specific rules on sectoral
     advertising.
     Compliance with EEC standards         Accepted as regards trade marks (Recitals
     concerning registered trade marks and 8, 9 and 10).
     designations of origin.
                                           As regards designations of origin, the
                                           Commission maintains its initial proposal
                                           (Article 1 (2) and (3)).
2.8  Drafting of a self-regulatory code of Rejected. It is not up to the Commission
     practice whose framework would be     to take action in this domain for reasons
     defined by Community rules.           of subsidiarity. It is sufficient to
                                           encourage voluntary control (Recital 11).
2.10 Setting up of voluntary bodies        Rejected for reasons of subsidiarity.
     representing the various interests
     involved.
 ---pagebreak--- 3.2 Comparative advertising to be allowed      Rejected. The Commission maintains its
    only in the form of explicit references,   initial text (definition of comparative
    not implicit ones.                         advertising).
3.3 Ban on the presenting of goods or          Rejected. This proposal is not the
    services as imitations or replicas already appropriate place to treat this question.
    protected by the legislation on trade
    marks.
3.8 "Objective truth" should also be taken     Accepted. (Article 1.3).
    to imply that the information is fully up
    to date,
 ---pagebreak---                                Amended proposal for a
                   EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
      Concerning comparative advertising and amending Directive 84/450/EEC
                           concerning misleading advertising
INITIAL PROPOSAL                              AMENDED PROPOSAI
THE COUNCIL OF THE EUROPEAN                 THE EUROPEAN PARLIAMENT AND
COMMUNITIES                                 THE COUNCIL OF THE EUROPEAN
                                            UNION
Having regard to the Treaty establishing    Having regard to the Treaty establishing
the European Economic Community and         the European Community and in
in particular Article 100a thereof,         particular Article 100a thereof,
Having regard to the proposal from the      Having regard to the proposal from the
Commission,1                                Commission,
                                            Acting in accordance with the procedure
                                            referred to in Article 189b of the Treaty2
                                            Having regard to the opinion of the
                                            Economic and Social Committee3
In cooperation with the European
Parliament, (2)
Having regard to the opinion of the
Economic and Social Committee, (3)
Whereas one of the Community's main                 Whereas one of the Community's
aims is to complete the internal market             main aims is to complete the
by 31 December 1992 at the latest;                  internal market whereas
whereas measures must be adopted                    measures must be adopted
gradually to establish the internal                 gradually to establish the internal
market; whereas the internal market                 market; whereas the internal
comprises an area which has no internal             market comprises an area which
frontiers and in which goods, persons,              has no internal frontiers and in
services and capital can move freely;               which goods, persons, services
                                                    and capital can move freely;
 ---pagebreak--- Whereas advertising is a very important        Unchanged.
means of creating genuine outlets for all
goods and services throughout the
Community; whereas the basic
provisions governing the form and
content of advertising must therefore be
uniform; whereas, however, this is not
currently the case for comparative
advertising,
Whereas the completion of the internal        Whereas the completion of the
market will mean an ever wider range of       internal market will mean an ever
choice; whereas, given that consumers         wider range of choice; whereas, given
can and must make the best possible use       that consumers can and must make the
of the internal market, the use of            best possible use of the internal
comparative advertising must be               market, the use of comparative
authorised in all the Member States           advertising must be authorised under
since this will help demonstrate the          certain very stringent conditions in all
merits of the various products within the     the Member States since this will help
relevant range; whereas comparative           demonstrate the merits of the various
advertising can also stimulate                products within the relevant range;
competition between suppliers of goods        whereas under such conditions...
and services to the consumer's                comparative advertising can stimulate
advantage;                                    competition between suppliers of
                                              goods and services to the consumer's
                                              advantage.
                                          l o
 ---pagebreak---  Whereas the laws, regulations and
 administrative provisions of the
 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
 created 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 must be assured: whereas
 the Union is called on to remedy this
 situation:
^
 ---pagebreak--- Whereas the sixth recital of Council         Unchanged.
Directive 84/450/EEC of 10 September
 1984 relating to the approximation of the
laws, regulations and administrative
provisions of the Member States
concerning misleading advertising1 states
that, after the harmonisation 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";
Whereas point 3(d) of the Annex to the       Whereas point 3(d) of the 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 Community for a consumer            Economic Community for a consumer
protection and information policy includes   protection and information policy includes
the right to information among the basic     the right to information among the basic
rights of consumers2; whereas this right is  rights of consumers; whereas this right is
confirmed by the Council Resolution of       confirmed by the Council.Resolution of 19
19 May 1981 on a second programme of         May 1981 on a second programme of the
the European Community for a consumer        European Community for a consumer
protection and information policy3, point    protection and information policy, point 40
40 of the Annex to which deals               of the Annex to which deals specifically
specifically with consumer information;      with consumer information; whereas
whereas comparative advertising, when it     comparative advertising, when it compares
compares relevant and verifiable details     details which are relevant, always verifiable
and is neither misleading nor unfair, is a   and neither misleading nor unfair, may be a
legitimate means of informing consumers      legitimate means of informing consumers
to their advantage;                          to their advantage;
           OJL. 250 of 19.9.1984, p. 17
           OJ No C 92 of 25.4.1975, p. 1
           O J N o C 133 of 3.6.1981, p. 1
 ---pagebreak--- Whereas objective criteria must be               Unchanged
established in order to determine which
practices relating to comparative
advertising are unfair and therefore may
distort competition, cause damage to
competitors and have an adverse effect on
consumer choice;
Whereas, in particular, in order to prevent  8.  Unchanged
comparative advertising being used in an
unfair and anti-competitive manner, only
comparisons between competing goods
and services of the same nature should be
allowed;
Whereas comparative tests carried out by         Deleted
third parties can constitute a valuble basis
for comparative advertising; whereas,
however, this independent activity requires
clearly defined protection against the
unauthorised use of results by advertisers;
whereas, where such use is lawfully made,
advertisers must themselves assume
responsibility for it;
                                                ^3
 ---pagebreak---  Whereas Article 5 of Directive               Unchanged.
 89/104/EEC of 21 December 1988 to
approximate the laws of the Member
States relating to trade marks4 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;
Whereas it may however be                10. 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;
Whereas such use of another's trade      11. Whereas such use of another's trade mark
mark or trade name, provided it              or trade name does not breach this
complies with the conditions laid down       exclusive right in cases where it complies
by this directive and, in particular,        with the conditions laid down by this
does not try to capitalise on the            directive and does not capitalise on the
reputation of another trademark, does        reputation of another trademark, but is
not breach this exclusive right given        intended solely to distinguish between
that this kind of use is not intended to     them and thus objectively highlight
steal reputations but to distinguish         differences;
between them and thus objectively
highlight differences;
          OJL40, 12.2.1989, p. 1.
                                              AH
 ---pagebreak--- Whereas provision must be made for      12. Whereas provision must be made for the
the legal and/or administrative means       legal and/or administrative means of redress
of redress mentioned in Articles 4          mentioned in Articles 4 and 5 of Directive
and 5 of Directive 84/450/EEC to be         84/450/EEC to be available to control
available to control comparative            comparative advertising which fails to meet
advertising which fails to meet the         the requirements of fairness laid down by
requirements of fairness laid down by       this Directive; whereas Article 6 applies to
this Directive;                             comparative advertising in the same way:
Whereas Article 7 of Directive          13. 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 of
profession, and the general public
should not apply to comparative
advertising, given that the objective
of this amendment is to allow it in all
Member States under the same
conditions and with a ligh level of
piûlcCtiOn,
                                        14. Whereas this Directive does not in any way
                                            affect Community provisions on advertising
                                            for certain products and/or services or
                                            relating to the advertising content of
                                            particular media:
                                        15. Whereas the authorisation of comparative
                                            advertising is. under the conditions set out
                                            in this Directive, necessary for the
                                            completion of the Internal Market and that
                                            an action at community level is required:
                                            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 therefore in
                                            accordance with the principle of
                                            subsidiarity.
                                             AS
 ---pagebreak--- HAS ADOPTED THIS DIRECTIVE:                  HAVE ADOPTED THIS DIRECTIVE:
                    Article 1                                     Article 1
Council Directive 84/450/EEC is hereby       Unchanged
amended as follows:
 1. The title is replaced by the following
title:
"Council Directive of 10 September 1984
concerning misleading and comparative
advertising"
2. In Article 2, point 3 is replaced by the
following:
"3. "comparative advertising" means any
advertising which expiicitiy or by
implication identifies a competitor or goods
or services of the same kind offered by a
competitor;"
4) person means any natural or legal
person."
3. the following Article 3a is added:
                   "Article 3a                                   "Article 3a
 1. Comparative advertising shall be         1. Comparative advertising shall be allowed
allowed, provided that it objectively        only provided that it objectively compares the
compares the material, relevant, verifiable  material, relevant, always verifiable, fairly
and fairly chosen features of competing      chosen and representative features of
goods or services and that it:               competing goods and services and that it:
(a) does not mislead;                        (a) does not mislead;
                                                 AG
 ---pagebreak---                                                                        ?'" '»^ssmf^m
(b)  does not cause confusion in     (b) does not create the risk of confusion in the
    the market place between the         market place between the advertiser and a
     advertiser and a competitor or      competitor or between the advertiser's trade
    between the advertiser's trade       marks, trade names, other distinguishing
    marks, trade names, goods or         marks, goods or services of those of a
    services and those of a              competitor;
    competitor;
(c) does not discredit, denigrate or (c) does not discredit, denigrate or bring
    bring contempt on a                  contempt on the trade marks, trade names,
    competitor or his trade marks,       goods, services or activities of a competitor
    trade names, goods, services or      and does not principally capitalise on the
    activities or aim principally to     reputation of a trade mark or trade name of
    capitalise on the reputation of      a competitor.
    a trade mark or trade name of
    a competitor.
                                     (d) does not refer to the personality or personal
                                         situation of a competitor.
    Preference to or renroduction        Deleted
    of the results of comparative
    tests on goods or services
    carried out by third parties
    shall be permitted in
    advertising only if the person
    who has carried out the test
    gives his express consent. In
    such cases the advertiser shall
    accept responsibility for the
    test as if it had been performed
    by himself or under his
    direction "
                                         Comparative advertising must indicate the
                                         length of time during which the
                                         characteristics of the goods or services
                                         compared shall be maintained where these
                                         are the subject of a special or limited-
                                         duration offer.
                                            1^
 ---pagebreak--- 4. Article 4(1) is replaced by by         4. Unchanged,
   following:
    1. Member States shall ensure that
   adequate and effective means exist
   for the control of misleading
   advertising and comparative
   advertising in the interests of
   consumers as well as competitors
   and the general public.
   Such means shall include legal
   provisions under which pesons or
   organisations regarded under
   national law as having a legitimate
   interest in prohibiting misleading
   or comparative advertising may:
     (a)    take legal action against
            such advertising; and/or
     (b)    bring such advertising before
            an administrative authority
            competent either to decide
            on complaints or to initiate
            appropriate legal
            proceedings.
 ---pagebreak---  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."
Article 4(2) is replaced by the          5.    Unchanged,
following.
"2. Under the legal provisions
referred to in paragraph 1, Member
States shall confer upon the courts
or administrative authorities powers
enabling the, in cases where they
deem such measures to be necessary
taking into account all the interests
involved, and in particular the public
interest:
        to order the cessation of, or to
        institute appropriate legal
        proceedings for an order for
        the cessation of, misleading or
        comparative advertising, or
                                            A3
 ---pagebreak---        if misleading or comparative
       advertising has not yet been published
       but publication is imminent, to order
       the prohibition of, or to institute
       appropriate legal proceedings for an
       order for the prohibition of, such
       publication,
even without prooof of actual loss or
damage or of intention or negligence on the
part of the advertiser.
Member States shall also make provision for   Unchanged
the measures referred to in the first
subparagraph to be taken under an
accelerated procedure:
       either with interim effect,
       with definitive effect,
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
misleading or comparative advertising the
cessation of which has been ordered by a
final decision:
 ---pagebreak---          to require publication of that
         decision in full or in part and
         in such form as they deem
         adequate,
         to require in addition the
         publiction of a corrective
         statement."
 Article 5 is replaced by the following: 6.   Unchanged
            "Article 5
This Directive does not exclude the
voluntary control of misleading or
comprative advertising by self-
regulatory bodies and recourse to such
bodies by the persons or organisations
referred to in Article 4 if proceedings
before such bodies are in addition to
the court or administrative proceedings
referred to in that Article."
 Article 7 is replaced by the following: 7.   Article 7 is replaced by the following:
            "Article 7                                    "Article 7
 "1. This Directive shall not preclude        Unchanged
 Member 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")
 ---pagebreak---        Pragraph 1 shall not apply to          Unchanged.
       comparative advertising"
                                              Community provisions on advertising for
                                              specific products and/or services or
                                              concerning the advertising content of
                                              particular media shall remain unaffected
                                              by this Directive.
                    Article 2                                  Article 2
Member States shall bring into force the        Member States shall bring into force the
laws, regulations and administrative            laws, regulations and administrative
provisions necessary to comply with this        provisions necessary to comply with this
Directive by 31 December 1992 at the            Directive by 31 December 1995 at the
latest. They shall inform the Commission        latest. They shall inform the
thereof forthwith.                              Commission thereof forthwith.
When Member States adopt these                  When Member States adopt these
provisions, these shall contain a reference     provisions, these shall contain a
to this Directive or shall be accompanied       reference to this Directive or shall be
by such reference on the occasion of their      accompanied by such reference on the
official publication. The methods of            occasion of their official publication.
making such reference shall be laid down        The methods of making such reference
by the Member States.                           shall be laid down by the Member
                                                States.
                                                Member States shall communicate to the
                                                Commission the text of essential
                                                provisions in domestic law adopted in
                                                the domain governed by this Directive.
                    Article 3                                  Article 3
This Directive is addressed to the Member   Unchanged.
States
                                                 2 2.
 ---pagebreak---                           REVISED IMPACT ASSESSMENT FORM
Title: Amended proposal for a Directive of the European Parliament and the Council
       concerning comparative advertising and amending Directive 84/450/EEC
       concerning misleading advertising.
Reference No:          COM(91) 147 final - SYN 343.
l.Q.   Taking account of the subsidiarity principle, why is Community legislation
       necessary in this area and what are its main aims?
R.     The current situation in which comparative advertising is authorised in certain
       Member States and banned in others puts consumers, advertisers and publicity
       workers in certain Member States at a disadvantage, and the medium used (press,
       radio or television) leads to substantial distortions in competition; hence the most
       practical and effective solution is to harmonise legislation on comparative
       advertising so as to ensure that the consumer's right to information is respected
       and that appropriate safeguards are established to avoid disputes between
       advertisers resulting from incompatible legislation.
       The purpose of the measure is to facilitate the creation and functioning of the
       internal market, at a high level of consumer protection, by approximating laws
       governing comparative advertising; hence the measure will encourage the free
       movement of advertising services insofar as they will be governed by a
       harmonised routine in all the Member States.
The impact on business
2.Q.   Who will be affected by the proposal?
R.     Businesses, of all sizes, which wish to use comparative advertising to publicise
       the features of their products or services in greater detail.
       These businesses are not concentrated in particular geographic zones.
3.Q    What measures will businesses have to comply with the proposal?
R.     The proposal does not require the adoption of specific measures; advertisers will
       from now on be free to use comparative advertising in the Member States in
       which it is current banned or potentially risky.
4.Q.   What economic effects is the proposal likely to have?
       -       on unemployment              >p            -2
 ---pagebreak---                on investment and the creation of new businesses
               on the competitive position of businesses.
R.     It should not have any particular effect on employment or on the creation of new
       businesses or investment. As regards effects on competitive position, the proposal
       enjoins compliance with a certain number of conditions which risk exposing
       businesses to legal action if they use comparative advertising improperly; hence
       businesses which do not have a legal department, and in particular SMEs, might
       tend to avoid making use of comparative advertising; initially this could lead to
       a certain competitive disadvantage, which should disappear with the growth of
       established case law in this domain.
5.Q.   Does the proposal contain measures to take account of the specific situation of
       small and medium-sized enterprises?
R.     The proposal does not contain any particular measures relating to SMEs.
Consultation
6.     List of organisations which have been consulted about the proposal and outline
       their main views.
               Consumers' Consultative Council: the CCC says that it has not called for
               this Directive although it recognises that comparative advertising is one
               element of information, albeit partial, to which consumers will have
               access.
               UNICE is in favour of harmonising rules on comparative advertising but
               wants authorisation of comparative advertising to be subject to conditions
               so as to ensure fair competition and protection of brand names.
       In general industry is divided on this issue and opinions range from those who
       would prefer a total ban of comparative advertising to authorisation without any
       conditions at all or authorisation under specific conditions.
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                                                              COM(94) 151 final
                                                      DOCUMENTS
EN                                                                              10
                                 Catalogue number : CB-CO-94-158-EN-C
                                                             ISBN 92-77-67729-5
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