CELEX: 51991PC0147
Language: en
Date: 1991-06-21
Title: PROPOSAL FOR A COUNCIL DIRECTIVE CONCERNING COMPARATIVE ADVERTISING AND AMENDING DIRECTIVE 84/450/EEC CONCERNING MISLEADING ADVERTISING

No C 180/14                           Official Journal of the European Communities                                  11. 7. 91
                                                              II
                                                      (Preparatory Acts)
                                                 COMMISSION
              Proposal for a Council Directive concerning comparative advertising and amending Directive
                                       84/450/EEC concerning misleading advertising
                                                       (91/C 180/15)
                                               COM(91) 147 final — SYN 343
                                      (Submitted by the Commission on 28 May 1991)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                         Whereas the laws, regulations and administrative
                                                                  provisions of the Member States concerning comparative
                                                                  advertising differ widely; whereas advertising reaches
 Having regard to the Treaty establishing the European            beyond frontiers and is received on the territory of other
 Economic Community, and in particular Article 100a               Member       States;  whereas       the   acceptance      or
 thereof,                                                         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;
 Having regard to the proposal from the Commission,
 In cooperation with the European Parliament,
                                                                  Whereas the sixth recital of Council Directive
                                                                  84/450/EEC of 10 September 1984 relating to the
                                                                  approximation of the laws, regulations and adminis-
 Having regard to the opinion of the Economic and                 trative provisions of the Member States concerning
 Social Committee,                                                misleading advertising (') states that, after the harmon-
                                                                  ization of national provisions against misleading adver-
                                                                  tising, 'at a second stage . . ., as far as necessaiy,
Whereas one of the Community's main aims is to                    comparative advertising should be dealt with, on the
complete the internal market by 31 December 1992 at               basis of appropriate Commission proposals';
the latest; whereas measures must be adopted gradually
to establish the internal market; whereas the internal
market comprises an area which has no internal frontiers
and in which goods, persons, services and capital can            Whereas point 3 (d) of the Annex to the Council
move freely;                                                     resolution of 14 April 1975 on a preliminary programme
                                                                 of the European Economic Community for a consumer
                                                                 protection and information policy (2) includes the right
Whereas advertising is a very important means of                 to information among the basic rights of consumers;
creating genuine outlets for all goods and services              whereas this right is confirmed by the Council resolution
throughout the Community; whereas the basic provisions           of 19 May 1981 on a second programme of the
governing the form and content of advertising must                European Community for a consumer protection and
therefore be uniform; whereas, however, this is not              information policy (3), and in particular point 40 of the
currently the case for comparative advertising;                  Annex thereto which deals specifically with consumer
                                                                 information; whereas comparative advertising, when it
                                                                 compares relevant and verifiable details and is neither
                                                                 misleading nor unfair, is a legitimate means of informing
Whereas the completion of the internal market will mean
                                                                 consumers to their advantage;
an ever wider range of choice; whereas, given that
consumers can and must make the best possible use of
the internal market, the use of comparative advertising
must be authorized in all the Member States since this
will help demonstrate the merits of the various products
within the relevant range; whereas comparative adver-            (') OJ No L 250, 19. 9. 1984, p. 17.
tising can also stimulate competition between suppliers of       O OJ No C 92, 25. 4. 1975, p. 1.
goods and services to the consumer's advantage;                  O OJ No C 133, 3. 6. 1981, p. 1.
 ---pagebreak---  11. 7. 91                              Official Journal of the European Communities                               No C 180/15
Whereas objective criteria must be established in order to        and the general public should not apply to comparative
determine which practices relating to comparative adver-          advertising, given that the objective of this amendment is
tising are unfair and therefore may distort competition,          to allow it in all Member States under the same
cause damage to competitors and have an adverse effect            conditions and with a high level of protection,
on consumer choice;
                                                                  HAS ADOPTED THIS DIRECTIVE:
Whereas, in particular, in order to prevent 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;                                                Article 1
                                                                  Directive 84/450/EEC is hereby amended as follows:
Whereas comparative tests carried out by third parties
can constitute a valuable basis for comparative adver-             1. the title is replaced by the following title:
tising; whereas, however, this independent activity
requires clearly defined protection against the unauth-
orized use of results by advertisers; whereas, where such             'Council Directive of 10 September 1984 concerning
 use is lawfully made, advertisers must themselves assume             misleading and comparative advertising';
responsibility for it;
                                                                  2. in Article 2, point 3 is replaced by the following:
Whereas Article 5 of the first Council Directive
 89/104/EEC of 21 December 1988 to approximate the                    '3. "comparative advertising" means any advertising
laws of the Member States relating to trade marks (')                      which explicitly or by implication identifies a
confers exclusive rights on the proprietor of a registered                 competitor or goods or services of the same kind
trade mark, including the right to prevent all third                       offered by a competitor;
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,
                                                                        4. "person" means any natural or legal person.';
other goods;
                                                                  3. the following Article 3a is added:
Whereas it may however be indispensable, in order to
make comparative advertising effective, to identify the
goods or services of a competitor making reference to a                'Article 3a
trade mark or trade name of which the latter is the
proprietor;
                                                                      1.     Comparative advertising shall be allowed,
                                                                      provided that it objectively compares the material,
                                                                      relevant, verifiable and fairly chosen features of
Whereas such use of another's trade mark or trade
                                                                      competing goods or services and that it:
name, provided it complies with the conditions laid
down by this Directive and, in particular, does not try to
capitalize on the reputation of another trade mark, does              (a) does not mislead;
not breach this exclusive right given that this kind of use
is not intended to steal reputations but to distinguish
between them and thus objectively highlight differences;              (b) does not cause confusion in the market place
                                                                           between the advertiser and a competitor or
                                                                           between the advertiser's trade marks, trade names,
Whereas provision must be made for the legal and/or                        goods or services and those of a competitor;
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               (c) does not discredit, denigrate or bring contempt on
requirements of fairness laid down by this Directive;                      a competitor or his trade marks, trade names,
                                                                           goods, services or activities or aim principally to
                                                                           capitalize on the reputation of a trade mark or
                                                                           trade name of a competitor.
Whereas Article 7 of Directive 84/450/EEC allowing
Member States to retain or adopt provisions with a view
to ensuring more extensive protection for consumers,
                                                                      2.     Reference to or reproduction of the results of
persons carrying on a trade, business, craft or profession,
                                                                      comparative tests on goods or services carried out by
                                                                      third parties shall be permitted in advertising only if
(') O] N o L 40, 12. 2. 1989, p. 1.                                   the person who has carried out the test gives his
 ---pagebreak--- N o C 180/16                              Official Journal of the European Communities                                 11.7.91
     express consent. In such cases the advertiser shall                 Member States shall also make provision for the
     accept responsibility for the test as if it had been               measures referred to in the first subparagraph to be
     performed by himself or under his direction.';                     taken under an accelerated procedure:
4. Article 4 (1) is replaced by the following:                          — either with interim effect, or
     '1.     Member States shall ensure that adequate and
     effective means exist for the control of misleading                — with definitive effect,
     advertising and comparative advertising in the
     interests of consumers as well as competitors and the
    general public.                                                     on the understanding that it is for each Member State
                                                                        to decide which of the two options to select.
     Such means shall include legal provisions under which
    persons or organizations regarded under national law
     as having a legitimate interest in prohibiting                     Furthermore, Member States may confer upon the
    misleading or comparative advertising may:                          courts or administrative authorities powers enabling
                                                                        them, with a view to eliminating the continuing
                                                                        effects of misleading or comparative advertising the
     (a) take legal action against such advertising; and/or             cessation of which has been ordered by a final
                                                                        decision:
    (b) bring such advertising before an administrative
          authority competent either to decide on                      — to require publication of that decision in full or in
          complaints or to initiate appropriate legal                       part and in such form as they deem adequate,
          proceedings.
    It shall be for each Member State to decide which of               — to require in addition         the publication   of a
    these facilities shall be available and whether to enable               corrective statement.';
    the courts or administrative authorities to require
    prior recourse to other established means of dealing
    with complaints, including those referred to in Article         6. Article 5 is replaced by the following:
    5.';
5. Article 4 (2) is replaced by the following:                          'Article 5
    '2.     Under the legal provisions referred to in                  This Directive does not exclude the voluntary control
   paragraph 1, Member States shall confer upon the                    of misleading or comparative advertising by self-regu-
   courts or administrative authorities powers enabling                latory bodies and recourse to such bodies by the
   them, in cases where they deem such measures to be                  persons or organizations referred to in Article 4 if
   necessary taking into account all the interests                     proceedings before such bodies are in addition to the
   involved, and in particular the public interest:                    court or administrative proceedings referred to in that
                                                                       Article.';
   — to order the cessation of, or to institute appro-
         priate legal proceedings for an order for the
         cessation of, misleading or comparative adver-             7. Article 7 is replaced by the following:
         tising, or
                                                                        'Article 7
   — if misleading or comparative advertising has not
         yet been published but publication is imminent, to
         order the prohibition of, or to institute appro-
         priate legal proceedings for an order for the                 1.     This Directive shall not preclude Member States
         prohibition of, such publication,                             from retaining or adopting provisions with a view to
                                                                       ensuring more extensive protection, with regard to
                                                                       misleading advertising, for consumers, persons
   even without proof of actual loss or damage or of                   carrying on a trade, business, craft or profession, and
   intention or negligence on the part of the advertiser.              the general public.
 ---pagebreak--- 11.7.91                              Official Journal of the European Communities                          N o C 180/17
    2. Paragraph 1 shall not apply to comparative              When Member States adopt these provisions, these shall
    advertising.'                                              contain a reference to this Directive or shall be accom-
                                                               panied by such reference on the occasion of their official
                                                               publication. The methods of making such reference shall
                         Article 2                             be laid down by the Member States.
Member States shall bring into force the laws, regu-
lations and administrative provisions necessary to comply                              Article 3
with this Directive by 31 December 1992 at the latest.
They shall inform the Commission thereof forthwith.            This Directive is addressed to the Member States.