CELEX: 51996PC0725
Language: en
Date: 1996-12-23
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on injunctions for the protection of consumers' interests

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                       COMMISSION OF THE EUROPEAN COMMUNITIES
                                                        Brussels, 23.12.1996
                                                        COM(96) 725 final
                                                        96/0025 (COD)
                                    Amended proposal for a
                  EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                   on injunctions for the protection of consumers' interests
                  (presented by the Commission pursuant to Article 189 a (2)
                                       of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                             EXPLANATORY MEMORANDUM
 L PROCEDURE
On 24 January 1996, the Commission adopted a proposal for a Directive relating to
injunctions for the protection of consumers' interests1 on the basis of Article 100a of the
Treaty establishing the European Community. This proposal is designed to ensure that
Community consumer legislation is applied effectively, and covers injunctions against
infringements of national provisions transposing Community law in this area. To this end,
and especially to prevent intra-Community infringements, the proposed Directive applies
the principle of mutual recognition to entities "qualified" to bring an action on the basis
of lists which shall be drawn up by the Member States and published in the Official
Journal of the European Communities.
The Economic and Social Committee gave its opinion on 25 September 1996 and the
European Parliament, to which the proposal was submitted under the co-decision
procedure, gave its opinion at the first reading on 14 November 1996 (Rapporteur: M.
Verde i Aldea). The legislative resolution adopted by the Parliament approves the
proposal subject to 20 amendments, 17 of which were accepted in their entirety or in part
by the Commission during the debate preceding the vote at the plenary sitting.
II T H E COMMISSION'S POSITION WITH REGARD TO THE AMENDMENTS
Amendments 6, 19 and 25 were rejected by the Commission on the grounds of
proportionality and, in particular, recitals 9, 10 and 11 of the proposal for a Directive.
At the plenary sitting of the Parliament, the Commission undertook to accept amendments
1, 3, 7, 9, 11, 13, 14, 15, 16, 17, 18, 22, 24 and, subject to certain changes, amendments
8. 10. 20, and 23.
        OJ No CI07 of 13.4.19%, p. 3.
 ---pagebreak---   The proposal for a Directive has been amended accordingly by the Commission under the
  terms of the provisions governing the co-decision procedure.
  I l l THE AMENDED PROPOSAL
  Recital 1 and Article 1 are amended on the basis of amendments 3, 10, and 11 brought
  in by the European Parliament. They are intended to make the proposal more consistent
  with respect to the concepts of the qualified entities defined in Article 3 and of the
  protected consumers' interests indicated in the directives listed in the Annex. In Article
  1 (1), "coordinate" is replaced by "approximate" to bring it into line with the term used
  in Article 100a) 1) of the Treaty. Since this provides the legal basis for the proposed
 Directive, the Commission considers the change in the wording to be justified.
 Recital 15 is amended in accordance with amendment 7 so as to point out that, since the
 law applying to the substance of a dispute comprises provisions transposing one of the
 directives listed in the Annex, it should be applied in full. Indeed, the proposed Directive
 does not make for any change to the rules of private international law or to the
 conventions in force between the Member States.
 Recital 15a is added, which goes hand in hand with the amendment to Article 4 (2) in
 line with amendments 8 and 24, accepted by the Commission in principle. The
 Parliament's amendment is designed to avoid differences in interpretation of the
 "reasonable time limit" which appears in the initial proposal and the problems involved
 in applying such a vague concept. In the amended proposal, the limit is expressed in
 weeks firstly because "working days" are not necessarily the same in the Member States
 concerned and secondly because amendments 8 and 24 refer to two different periods (30
and 20 days respectively). As this provision applies in the case of summary procedure
(Article 2 a)), the three weeks represent what ought to be a "reasonable" period of time
in the specific context of the Directive.
Recital 16a is introduced in line with amendments 9 and 23. The underlying principle
conforms with paragraph 5 of the comments on the articles in the initial proposal and the
Commission endorses it fully. However, since it is liable to anticipate the future activities
of the Community legislature if it appears in the enacting terms, it is thought preferable
to include it in the recitals.
Article 2 is amended in line with amendments 13, 14 and 15. The change under c), in
particular, is in keeping with the principle of proportionality in that it is intended to leave
the Member States as much latitude as possible. This amendment ensures that the type
and beneficiary of the payment will actually be determined by national law.
Article 2a is introduced in the amended proposal in line with amendment 16 and is
intended to clarify the distinction (which was implicit in the initial proposal) between
the concepts of being qualified to act and having an interest in doing so. The Directive
is designed to introduce mutual recognition of the qualification for action ("qualified
 ---pagebreak--- entities") but the interest in bringing an action is governed by national law and must be
assessed separately in each case by the judge before whom the action is brought.
Article 3 is reworded to comply with amendments 17 and 18 and to clarify matters in the
spirit of amendment 20. Under the Commission's proposal, the Member States will apply
the "criteria laid down by national law", to any organisation existing in their territories,
irrespective of the national, transnational or European nature of such organisations.
Article 5 is amended in line with amendment 22. The rules governing prior notification,
in particular, must enable the action to be brought "as quickly as possible", since it is
done so under summary procedure (Article 2 a)).
 ---pagebreak---           Amended proposal for a European Parliament and Council Directive
                 on injunctions for the protection of consumers' interests
        (Submitted by the Commission pursuant to Article 189 a(2) of the EC Treaty
                                           on          )
              INITIAL PROPOSAL                              AMENDED PROPOSAL
THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN
UNION
Having regard to the Treaty establishing the    Unchanged
European Community, and in particular
Article 100a thereof,
Having regard to the proposal from the
Commission,
Having regard to the opinion of the Economic
and Social Committee,
Acting in accordance with the procedure
referred to in Article 189b of the Treaty,
(1) Whereas certain Community directives,       Whereas certain Community directives, listed
       listed in the schedule annexed to this   in the schedule annexed to this Directive, lay
      Directive, lay down rules with regard to  down rules with regard to protection of the
      protection of the economic interests of   economic interests of consumers; whereas
      consumers;                                these include the interests of persons
                                                exercising a commercial, industrial or craft
                                                activity and those of the public at large, as
                                                against certain unlawful practices and their
                                                effects in terms of unfair competition:
(2) Whereas current mechanisms available Unchanged
       both at national and at Community level
       for ensuring compliance with those
      directives do not always allow the
      effects of infringements of their
       provisions to be corrected in good time
      to protect consumers' interests;
(3) Whereas, as far as the restraint of         Unchanged
       unlawful practices is concerned, the
       efficacy    of national         measures
       transposing those Directives is thwarted
  O J N o C 107, 13.4.1996, p. 3
                                                 tr
 ---pagebreak---             INITIAL PROPOSAL                      AMENDED PROPOSAL FOLLOWING
          COM(95)712 du 24.1.1996                THE PARLIAMENT'S AMENDMENTS
(4) Whereas those difficulties can disrupt      Unchanged
     the smooth functioning of the internal
      market, their consequence being that it
     is sufficient to move the source of an
     unlawful practice in order to place it out
     of reach of all forms of redress; whereas
     this constitutes a distortion of
     competition that is harmful to the great
     majority of firms which comply with the
     provisions of national law;
(5) Whereas those difficulties are likely to    Unchanged
     diminish consumer confidence in the
     internal market and            may have
     discriminatory effects on organizations
     representing      consumers      adversely
     affected by a practice that infringes
     Community law;
(6) Whereas those practices often extend        Unchanged
     beyond the frontiers of the Member
     States, which is, indeed, the reason for
     approximating       the     systems     of
     substantive law in question;
(7) Whereas, there is thus an urgent need       Unchanged
    .for some degree of coordination of
     national provisions designed to enjoin
     the cessation of the abovementioned
     unlawful practices, so that the existing
     means of redress can take effect,
     irrespective of the country in which the
     unlawful practice has had its effects;
(8) Whereas the objective of the action         Unchanged
     envisaged can only be attained by the
     Community legislature; whereas it is
     therefore incumbent on the Community
     legislature to act;
(9) Whereas the third paragraph of Article      Unchanged
     3b of the Treaty makes it incumbent of
     the Community not to go beyond what
     is necessary to achieve the objectives of
     the Treaty; whereas, in accordance with
     that Article, the specific features of
     certain national legal systems must be
 ---pagebreak---              INITIAL PROPOSAL                       AMENDED PROPOSAL FOLLOWING
          COM(95)712 du 24.1.1996                   THE PARLIAMENT'S AMENDMENTS
      respected; whereas that condition can be
      met by leaving Member States free to
      choose between different options having
      equivalent effect;
(10)Whereas one option should consist in          Unchanged
      requiring an independent public body,
      specifically responsible          for the
      protection of consumer interests and/or
      competition matters, to exercise the
      rights of action set out in this Directive;
(11) Whereas the other option should provide      Unchanged
      for the exercise of those rights by
      organizations which have a legitimate
      interest in protecting consumers, or by
      organizations representing firms, in
      accordance with criteria laid down by
      national law;
(12) Wliereas Member States should be able        Unchanged
      to combine those two options;
(13) Wliereas       Member      States     should Unchanged
      designate at national level the bodies
      and/or organizations qualified for the
      purposes of this Directive; whereas the
      principle of mutual recognition should
      be applied       to the bodies and/or
      organizations thus certified by Member
      States;
( 14) Whereas it is incumbent on the Member Unchanged
      States     to   communicate        to the
      Commission the list of bodies and/or
      organizations thus qualified for the
      purposes of this Directive, as well as
      any changes to these national lists;
      whereas it is the business of the
      Commission to ensure their publication
      in the Official Journal of the European
      Communities;
(15) Wliereas this Directive should be Whereas this Directive should be without
      without prejudice to the rules of private prejudice to the rules of private international
      international law and the conventions in law and the conventions in force between the
      force between the Member States;            Member States from which it follows that the
                                                  national law applying to the substance of a
 ---pagebreak---             INITIAL PROPOSAL                       AMENDED PROPOSAL FOLLOWING
          COM(95)712 du 24.1.1996                 THE PARLIAMENT'S AMENDMENTS
                                                dispute under the above rules should be
                                                applied in full;
                                                (15 a) Whereas, where the Member States
                                                have established that there should be prior
                                                intervention by a national qualified entity
                                                having territorial jurisdiction with a view to
                                                initiating action under this Directive, a
                                                deadline of three weeks should be set after
                                                which, should the latter body fail to respond
                                                or respond in the negative, the applicant shall
                                                be entitled to bring an action before the
                                                competent authority without further notice;
(16) Whereas Member States should be able Unchanged
      to require that a prior notification be
      issued 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;
                                                (16 a) Wliereas the provisions of this
                                                Directive could also be extended to future
                                                directives whose aims are adapted to the
                                                general objectives referred to in Article 1 ;
(17) Whereas the application of this Directive  Unchanged
      should not prejudice the application of
      Community competition rules,
HAVE ADOPTED THIS DIRECTIVE:
                    Article 1
                     Scope
 1. The purpose of this Directive is to 1. The purpose of this Directive is to
coordinate the laws, regulations and approximate the laws, regulations and
administrative provisions of Member States administrative provisions of Member States
relating to certain remedies designed to relating to certain remedies aimed at
protect consumers' interests, so as to ensure protecting the collective interests of consumers
 ---pagebreak---              INITIAL PROPOSAL                        AMENDED PROPOSAL FOLLOWING
           COM(95)712 du 24.1.1996                  THE PARLIAMENT'S AMENDMENTS
the smooth functioning of the internal market,    and persons exercising a commercial.
                                                  industrial or craft activity, and the interests of
                                                  the public at large, against the infringements
                                                  referred to in Paragraph 2. with a view to
                                                  ensuring the smooth functioning of the internal
                                                  market.
2. For the purposes of this Directive, an 2. For the purposes of this Directive, an
infringement shall mean any act contrary to infringement shall mean any act which harms
the     directives listed in the Annex and consumers' interests, as enshrined in the
transposed into the internal legal order of the directives listed in the Annex and transposed
Member States which harms consumers' into the internal legal order of the Member
interests.                                        States, or has unfair consequences for
                                                  competitors or is contrary to the interests of
                                                  the public at large.
                    Article 2
           Actions for an injunction
 1. Member States shall designate the court or    Unchanged
authority competent to rule on the
proceedings commenced by the qualified
entities within the meaning of Article 3, and
seeking:
a)    an order, given at very short notice, and   a) an order, (...) where appropriate by way of
      where appropriate by way of summary         summary procedure, requiring the cessation of
      procedure, requiring the cessation of       any act that is to be regarded as an
      any act that is to be regarded as an        infringement;
      infringement;
b)    where appropriate, adoption of the b) where appropriate, to rectify the effects of
      measures needed to rectify the effects of the infringement by taking or requiring the
      the infringement, including publication necessary measures, including publication of
      of the decision;                            the decision;
(c) an order against the losing party for         c) an order against the I osing party for
payment to the plaintiff, in the event of failure payment to the State or the      „.», beneficiary
                                                                                         „~.
to comply with the decision within a time-        provided for in national legislation, in the
 limit specified by the authority, of a fixed     event of failure to comply with the decision
 ---pagebreak---               INITIAL PROPOSAL                       AMENDED PROPOSAL FOLLOWING
          COM(95)712 du 24.1.1996                    THE PARLIAMENTS AMENDMENTS
amount for each day's delay or any other within a time-limit specified by the authority,
amount provided for in national legislation, of a penalty payment for each day's delay or
with a view to ensuring compliance with the any other financial penalty provided for in
decisions.                                        national legislation, with a view to ensuring
                                                  compliance with the decisions.
2. When the action may, pursuant to a             Unchanged
convention, be brought in a Member State
other than the one whose legislation has
allegedly been infringed, the competent
authority hearing the case shall take the same
measures as are laid down for infringements
of national legislation.
                                                                  Article 2a (new)
                                                  Where the national legislation of a member
                                                  State establishes stricter conditions with
                                                  regard to the recognition of the interest of
                                                  federations under its jurisdiction bringing an
                                                  action, these shall remain unaffected.
                        Article 3
     Entities qualified to bring an action
      For the purposes of this Directive, a
      'qualified entity' means any body or
      organization which, according to 1. For the purposes of this Directive, a
      national law, has a legitimate interest in 'qualified entity' means any body or
      ensuring that the provisions referred to organization which, being properly constituted
      in Article 1 are complied with, in according to the law in force in a Member
      particular:                                 State, has a legitimate interest in ensuring that
                                                  the provisions referred to in Article 1 are
                                                  complied with, in particular:
a)    an independent public body, specifically
      responsible for protecting consumer
      interests, in Member States in which Unchanged
      such bodies exists;
and/or                                            and/or
b)    organizations with a legitimate interest    b) organizations with a legitimate interest in
      in protecting consumer interests, as well    protecting consumer interests, as well as
                                                 ^
 ---pagebreak---              INITIAL PROPOSAL                        AMENDED PROPOSAL FOLLOWING
          COM(95)712 du 24.1.1996                    THE PARLIAMENT'S AMENDMENTS
     as organizations representing firms or organizations representing firms or federations
     federations of firms, in accordance with of firms, in so far as they are able to seek the
     the criteria laid down by their national corresponding remedies under their national
     law.                                          legislation.
     For the purposes of this Directive, and      2. For the purposes of this Directive, and
     without prejudice to the rights granted to   without prejudice to the rights granted to other
     other entities under national legislation,   entities under national legislation, each
     each Member State shall draw up at           Member State shall draw up at national level a
     national level a list of entities qualified  list of entities qualified to bring an action
     to bring an action under Article 2. The      under Article 2, including, where appropriate,
     bodies and organizations included in         the European organizations and/or federations
     that list shall receive a document           existing in its territory provided they meet the
     certifying their right to appear before the  criteria laid down by national law. The bodies
     relevant courts or authorities.              and organizations included in that list shall
                                                   receive a document certifying their right to
                                                  appear before the relevant courts or
                                                  authorities.
3.   The lists drawn up in accordance with        Unchanged
     paragraph 2, as well as any changes
     thereto, shall be communicated by the
     Member States to the Commission and
     shall be published in the C Series of the
     Official Journal of the European
     Communities.
                   Article 4
      Intra-Community infringements
1. Member States shall take the measures           Unchanged
   necessary to ensure that any qualified
   entity whose interests are affected by an
   infringement      originating in another
   Member State may seise the court or
   competent authority referred to in Article
   2, on presentation of the document
   provided for         in Article 3 (2).
   Member States may provide that direct 2.               Member States may provide that direct
   seisure referred to in paragraph 1 shall be seisure refered to in paragraph 1 shall be
   sought only after a prior seisure of the sought only after a prior seisure of the
   qualified entity of the Member State qualified entity of the Member State having
   having territorial jurisdiction, with a view territorial jurisdiction, with a view to ensuring
   to ensuring that it brings the action that it brings the action provided for in Article
                                                 /h
 ---pagebreak---              INITIAL PROPOSAL                          AMENDED PROPOSAL FOLLOWING
          COM(95)712 du 24.1.1996                      THE PARLIAMENT'S AMENDMENTS
    provided for in Article 2; in such case 2; in such cases Member States shall give the
    Member States shall give the qualified qualified national entity a time-limit for
    national entitles a reasonable time-limit reaction not exceeding 3 weeks from the date
    within         which         to       react. of reception of the application by the qualified
                                                    entity concerned.
                    Article 5
                Prior notification
1.    Member States may introduce or                 1    Member States may introduce or
      maintain in force a requirement that the      maintain in force a requirement concerning the
      party that intends to seek an injunction      issuing of an injunction ordering the party
      shall issue a prior notification to the       responsible for the infringement to cease or
      defendant; Member States which rely on        eliminate its unlawful practices or prior
      this option shall ensure that the rules       notification of that party as a preliminary to
      governing prior notification shall permit     the actions referred to in Article 2: Member
      an action for an injunction within a          States which rely on this option shall ensure
      reasonable time-limit.                        that the rules governing such injunctions or
                                                    prior notification shall permit an action for an
                                                    injunction to be brought as quickly as
                                                    possible.
2.    The rules governing prior notification        Unchanged
      adopted by Member States shall be
      notified to the Commission and shall be
      published in the C Series of the Official
      Journal of the European Communities.
3.    The limitation period shall cease to run       Unchanged
      once the prior notification has been
      issued.
                    Article 6
                     Reports
Every three years and for the first time no          Unchanged
later than 31 December 2000 the
Commission shall present the European
Parliament and the Council with a report on
the application of this Directive.
                                                /!/)
 ---pagebreak---              INITIAL PROPOSAL                         AMENDED PROPOSAL FOLLOWING
           COM(95)712 du 24.1.1996                   THE PARLIAMENT'S AMENDMENTS
                    Article 7
          Provisions for wider actions
This Directive shall not prevent Member             Unchanged
States from adopting or maintaining in force
provisions designed to grant representative
organizations of consumers or professionals
and/or public bodies and any other person
concerned more extensive rights to bring
action at national level.
                    Article 8
                Implementation
 1. Member States shall bring into force the       Unchanged
     laws, regulations and administrative
     provisions necessary to comply with this
     Directive by 31 December 1997. They
     shall        immediately      inform    the
     Commission thereof.
     When Member States adopt these
     provisions, these shall contain a reference
     to this Directive or shall be accompanied
     by such reference at the time of their
     official publication. The procedure for
     such reference shall be adopted by
     Member States.           .
Member States shall communicate to the             Unchanged
Commission the provisions of national
law which they adopt in the field covered
by this Directive.
                    Article 9                      Unchanged
               Entry into force
This Directive shall enter into force on
the twentienth day following that of its
publication in the Official Journal of the
European Communities.
                   Article 10                       Unchanged
                                                 /Il
 ---pagebreak---           INITIAL PROPOSAL            AMENDED PROPOSAL FOLLOWING
        COM(95)712 du 24.1.1996       THE PARLIAMENT'S AMENDMENTS
               Addressees
This Directive is addressed to the
Member States.
                                   03
 ---pagebreak---                                                                             ANNfc >v
             LIST OF DIRECTIVES COVERED BY ARTICLE 1(2)
 Council Directive 84/450/EEC of 10 September 1984 (misleading advertising);
 OJNoL250, 19.9.1984, p. 17;
 Council Directive 85/577/EEC of 20 December 1985 (contracts negotiated away from
 business premises); OJ No L 372, 31.12.1985, p. 31;
 Council Directive 87/102/EEC of 22 December 1986 - OJ No L 42, 12.2.1987, p. 48,
 as amended by Council Directive 90/88/EEC of 22 February 1990 (consumer credit)
 ( O J N 0 L 6 I , 10.3.1990, p. 14);
 Council Directive of 89/552/EEC of 3 October 1989 (on the pursuit of television
broadcasting activities): Articles 10 to 23, OJ No L 298, 17.10.1989, p. 23;
Council Directive 90/314/EEC of 13 June 1990 (package travel, package holidays and
package tours); OJ No L 158, 23.6.1990, p. 59;
Council Directive 92/28/EEC of 31 March 1992 (advertising of medicinal products for
human use); OJ No L 113, 30.4.1992, p. 13;
Council Directive 93/13/EEC of 5 April 1993 (unfair terms in consumer contracts);
O J N o L 9 5 , 21.4.1993, p. 29;
European Parliament and Council Directive 94/47/EC of 26 October 1994 (protection
of purchasers in respect of certain aspects of contracts relating to the purchase of
the right to use immoveable properties on a timeshare basis); OJ No L 280,
29.10.1994, p. 83;
European Parliament and Council Directive ... of... (contracts negotiated at a distance).
                                       4H
 ---pagebreak---  ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(96) 725 final
                                              DOCUMENTS
EN                                                                       10 06
                                    Catalogue number : CB-CO-96-737-EN-C
                                                             ISBN 92-78-14171-2
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