CELEX: 51977PC0724
Language: en
Date: 1978-02-27
Title: PROPOSAL FOR A COUNCIL DIRECTIVE RELATING TO THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES CONCERNING MISLEADING AND UNFAIR ADVERTISING

N o C 70/4                                Official Journal of the European Communities                                          21. 3 . 7 8
                            Article 8                                                                 Article 10
T h o s e responsible for carrying out exploration                     T h e Commission shall report annually on the
 projects shall submit an annual report to the                         progress of each of the projects to the European
 Commission u p o n the progress of the w o r k and the                Parliament and to the Council.
expenditure         incurred.    Representatives       of   the
 Commission shall have access at all times to the
 technical and financial documents relating to the                                                    Article 11
projects.
                                                                       This Regulation shall enter into force on the day
                                                                       following its publication in the Official journal of the
                                                                       European Communities.               It shall remain in force for a
                                                                       period of three years f r o m the date of its entry into
                            Article 9
                                                                       force.
All information contained in the reports referred to                   This Regulation shall be binding in its entirety and
 in Article 8 shall be confidential.                                    directly applicable in all M e m b e r States.
                  Proposal for a Council Directive relating to the approximation of the laws, regulations
                  and administrative provisions of the Member States concerning misleading and unfair
                                                             advertising
                               (Submitted     by the Commission   to the Council on 1 March 1978)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                               acquiring property or accepting services and the
                                                                       differences between the laws lead, in m a n y cases, not
Having regard to the Treaty establishing the                           only to inadequate levels of consumer protection, but
E u r o p e a n Economic C o m m u n i t y , and in particular         also prevent the execution of advertising campaigns
Article 100 thereof,                                                   beyond national boundaries and thus affect the free
                                                                       circulation of goods and provision of services;
H a v i n g regard to the proposal f r o m the Commision,
Having regard         to  the   opinion      of  the  European        Whereas the preliminary p r o g r a m m e of the E u r o p e a n
                                                                       Economic C o m m u n i t y for a consumer protection and
Parliament,
                                                                       i n f o r m a t i o n policy ( 1 ), provides in particular for
                                                                       appropriate action for the protection of consumers
Having regard to the opinion of the Economic and
                                                                       against false or misleading advertising;
Social Committee,
Whereas the laws against misleading and unfair                         Whereas it is in the interest of the public in general,
advertising n o w in force in the M e m b e r States differ            as well as that of consumers and all those w h o , in
widely; whereas, since advertising reaches to a large                  competition with one another, carry on a trade,
extent beyond the frontiers of individual M e m b e r                 business or profession, t h r o u g h o u t the c o m m o n
States, it has a direct affect on the establishment and               market, to harmonize national provisions against
the functioning of the c o m m o n market;                            misleading and unfair advertising;
Whereas unfair and misleading advertising is likely to
restrict the establishment of a system to ensure that                 Whereas m i n i m u m criteria for determing whether
competition is not distorted within the c o m m o n                    advertising is misleading or unfair should be
market;                                                               established for this purpose;
Whereas misleading and unfair advertising may cause
a consumer to take decisions prejudicial to him when                   (i) OJ N o C 92, 25. 4. 1975, p. 1.
 ---pagebreak--- 21.3.78                              Official Journal of the European Communities                                No C 70/5
Whereas, in view of modern techniques of                             or profession for the purpose of promoting the
communication, the definition of 'advertising' must                  supply of goods or services,
be worded broadly, but should not extend to policy
statements, the publication of comparative product              — 'misleading advertising' means any advertising
tests by independent organizations and any similar                   which is entirely or partially false or which,
statements;                                                          having regard to its total effect, including its
                                                                     presentation, misleads or is likely to mislead
Whereas the concepts of 'misleading advertising' and                 persons addressed or reached thereby, unless it
 'unfair advertising' must as far as possible be defined             could not reasonably be foreseen that these
by reference to objective criteria;                                  persons would be reached thereby,
 Whereas comparative •advertising may be beneficial             — 'unfair advertising' means any advertising which:
 to a consumer and a competitor to the extent that it
compares material and verifiable details with each                   (a) casts discredit on another person by improper
other and is neither misleading nor unfair;                                reference to his nationality, origin, private life
                                                                           or good name, or
 Whereas the laws to be adopted by Member States
 against misleading and unfair advertising must be                    (b) injures or is likely to injure the commercial
 adequate and effective; whereas it is a matter for the                    reputation of another person by false
 Member States whether they wish these to be matters                        statements or defamatory comments con-
 of civil law, administrative law or criminal law or a                      cerning his firm, goods or services, or
 combination thereof;
                                                                      (c) appeals to sentiments of fear, or promotes
                                                                            social or religious discrimination, or
 Whereas persons affected, as well as associations with
 a legitimate interest in the matter, must have facilities            (d) clearly infringes the principle of the social,
 for initiating proceedings against misleading or unfair                    economic and cultural equality of the sexes,
  advertising and in particular for obtaining the quick                     or
  cessation of misleading or unfair advertisements;
                                                                      (e) exploits the trust, credulity or lack of
  Whereas if a person advertises by making a factual                        experience of a consumer, or influences or is
  claim the burden of proof that his claim is correct                       likely to influence a consumer or the public in
  must lie with him;                                                        general in any other improper manner,
  Whereas the provisions of this Directive do not                — 'goods' means property of any kind, whether
  preclude Member States from adopting other                          movable or immovable, and any rights or
  measures for the protection of consumers, subject to                obligations relating to property.
  their obligations under the Treaty establishing the
  EEC and in particular the rules on the free movement
  of goods and services and competition,
                                                                                             Article 3
                                                                 1.      In      determining whether        advertising     is
  HAS ADOPTED THIS DIRECTIVE:                                    misleading or unfair, pronouncements shall be taken
                                                                 into consideration concerning in particular:
                          Article 1                              (a) the characteristics of the goods or services, such
                                                                        as nature, performance, composition, method
  The objective of this Directive is to protect                         and date of manufacture or provision, fitness for
  consumers, persons carrying on a trade, business or                  purpose, usability, quantity, quality, geographical
  profession, and the interests of the public in general               or commercial origin, properties and the results
  against unfair and misleading advertising.                            to be expected from use;
                                                                 (b) the condition of supply of the goods or services,
                                                                        such as value and price, conditions of contract
                          Article 2
                                                                        and of guarantee;
  For the purpose of this Directive:                              (c) the nature, attributes and rights of the advertiser,
                                                                        such as his identity, solvency, abilities, ownership
   — 'advertising'    means      the   making     of    any             of intellectual property rights or awards and
       pronouncement in the course of a trade, business                 distinctions.
 ---pagebreak--- No C 70/6                          Official Journal of the European Communities                             21.3.78
2.    Advertising shall in particular be regarded as             take into account the financial outlay on the ad-
misleading when it omits material information, and,              vertising, the extent of the damage and any profit
by reason of that omission, gives a false impression             resulting from the advertising.
or arouses expectations which the advertiser cannot
satisfy.
                                                                                      Article 6
                         Article 4                            Where the advertiser makes a factual claim, the
                                                              burden of proof that his claim is correct shall lie with
Comparative advertising shall be allowed, as long as          him.
it compares material and verifiable details and is
neither misleading nor unfair.
                                                                                      Article 7
                         Article 5                            Where a Member State permits the operation of
                                                              controls by self-regulatory bodies for the purpose of
Member States shall adopt adequate and effective              counteracting misleading or unfair advertising, or
laws against misleading and unfair advertising.               recognizes such controls, persons or associations
                                                              having a right to take legal proceedings under
Such laws shall provide persons affected by                   Article 5 shall have both that right and the right to
misleading or unfair advertising, as well as                  refer the matter to such self-regulatory bodies.
associations with a legitimate interest in the matter,
with quick, effective and inexpensive facilities for
                                                                                      Article 8
initiating appropriate legal proceedings against
 misleading and unfair advertising.
                                                              The present Directive does not prevent Member
Member States shall in particular ensure that:                States taking or maintaining other measures for the
                                                              protection of consumers against misleading or unfair
— the courts are enabled, even without proof of               advertising to the extent that these measures are in
     fault or of actual prejudice:                            conformity with the Treaty.
     (a) to order the prohibition or cessation of
          misleading or unfair advertising; and                                       Article 9
     (b) to take such a decision under an accelerated
         procedure, with an interim or final                  Member States shall bring into force the measures
          effect;                                             necessary to comply with this Directive within 18
                                                              months of its notification and shall forthwith inform
 — the courts are enabled:                                    the Commission thereof.
     (a) to require publication of a corrective state-        Member States shall communicate to the Commission
          ment; and                                           the text of the main provisions of national law which
     (b) to require publication of their decision either      they adopt in the field covered by this Directive.
          in full or in part and in such form as they
          may judge adequate;
                                                                                      Article 10
 — ensure that the sanctions for infringing these laws
     are a sufficient deterrent, and, where appropriate,       This Directive is addressed to the Member States.