CELEX: 51979PC0353
Language: en
Date: 1979-07-05
Title: AMENDMENT TO PROPOSAL FOR COUNCIL DIRECTIVE ON APPROXIMATION OF LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES CONCERNING MISLEADING AND UNFAIR ADVERTISING

79                               Official Journal of the European Communities                             N o C 194/3
                                                               II
                                                       (Prepa ratory A cts)
                                                COMMISSION
             Amendment to the 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 pursuant to Article 149 (2) of the EEC Treaty
                       ORIGINAL TEXT                                                          AMENDED TEXT
                          Article 2                                                            Article 2
For the purpose of this Directive:                                  For the purpose of this Directive:
— 'Advertising' means the making of any pro-                       .— 'Advertising' means the making of a representation
    nouncement in the course of a trade, business or                    in any form in the course of a trade, business or
    profession for the purpose of promoting the                         profession for the purpose of promoting the
    supply of goods or services,                                        supply of goods or services,
— 'Misleading advertising' means any advertising                    unchanged
   which is entirely or partially false or which,
    having regard to its total effect, including its pres-
    entation, misleads or is likely to mislead persons
    addressed or reached thereby, unless it could not
    reasonably be foreseen that these persons would
   be reached thereby,
— 'Unfair advertising' means any advertising which:                 — 'Unfair advertising' means any advertising which:
   (a) casts discredit on another person by improper                    (a) casts discredit on another person by (one word
        reference to his nationality, origin, private life                  deleted) reference to his nationality, origin,
        or good name; or                                                    private life or good name; or
   (b) injures or is likely to injure the commercial                    (b) u n c h a n g e d
        reputation of another person by false
        statements       or      defamatory      comments
        concerning his firm, goods or services; or
C) OJ No C 70, 21. 3. 1978, p. 4.
 ---pagebreak--- No C 194/4                                  Official Journal of the European Communities                                               1. 8. 79
                            ORIGINAL TEXT                                                      AMENDED T E X T
    (c) appeals to sentiments of fear, or promotes                        (c) abuses or unjustifiably         arouses      sentiments       of
          social or religious discrimination; or                               fear; or
    (d) clearly infringes the principle of the social,                    (d) promotes discrimination        on grounds of sex, race
          economic and cultural equality of the sexes;                          or religion; or
          or
    (e) exploits the trust, credulity or lack of                           (e) abuses the trust, credulity or lack of
          experience of a consumer, or influences or is                          experience of a consumer, or influences or is
          likely to influence a c o n s u m e r or the public in                 likely to influence a c o n s u m e r or the public in
          general in any o t h e r i m p r o p e r m a n n e r ;                general in any o t h e r i m p r o p e r m a n n e r ;
— ' G o o d s ' means property of any kind, w h e t h e r              unchanged
    movable or immovable, and any rights or
    obligations relating to property.
                                Article 3                                                         Article 3
1.     In determining w h e t h e r advertising is misleading          1.    In determining w h e t h e r advertising is misleading
or unfair, p r o n o u n c e m e n t s shall be taken into             or unfair, representations           shall be taken into
consideration concerning in particular:                                consideration concerning in particular: (English text
                                                                       only)
(a) the characteristics of the g o o d s or services, such             unchanged
     as nature, p e r f o r m a n c e , composition, m e t h o d and
     date of m a n u f a c t u r e or provision, fitness f o r
     purpose, usability, quantity, quality, geographical
     or commercial origin, properties and the results
     to be expected f r o m use;
(b) the conditions of supply of the g o o d s or services,             unchanged
     such as value and price, conditions of contract
     and of g u a r a n t e e ;
(c) the nature, attributes and rights of the advertiser,               unchanged
     such as his identity, solvency, abilities, ownership
     of intellectual property rights or awards and
     distinctions.
2.     Advertising shall in particular be regarded as                  2.     Advertising shall in particular be r e g a r d e d as
misleading w h e n it omits material information, and,                 misleading w h e n it is not readily recognizable as an
by reason of that omission, gives a false impression or                advertisement or w h e n it omits material i n f o r m a t i o n ,
arouses expectations which the advertiser c a n n o t                  and, by reason of that omission, gives a false
satisfy.                                                               impression or arouses reasonable expectations which
                                                                       the advertised goods or services c a n n o t satisfy.
                                Article 5                                                         Article 5
M e m b e r States shall adopt a d e q u a t e and effective           M e m b e r States shall a d o p t a d e q u a t e and effective
laws against misleading and unfair advertising.                        laws against misleading and unfair advertising.
 ---pagebreak--- 1. 8. 79                               Official Journal of the European Communities                               N o C 194/5
                        ORIGINAL TEXT-                                                    AMENDED TEXT
Such laws shall provide persons affected by                       Such laws shall provide persons affected by
misleading or unfair advertising, as well as                      misleading or          unfair advertising as well           as
associations with a legitimate interest in the matter,            associations with a legitimate interest in the matter,
with quick, effective and inexpensive facilities for              with quick, effective and inexpensive facilities for
initiating appropriate legal proceedings against                  either:
misleading and unfair advertising.
                                                                  (a) initiating appropriate legal proceedings against
                                                                       misleading or unfair advertising; or
                                                                  (b) bringing      the matter before an        administrative
                                                                        authority with adequate powers.
M e m b e r States shall in particular ensure that:               M e m b e r States shall in particular ensure that:
— the courts are enabled, even without proof of fault             — the courts or the administrative authority, as appro-
    or of actual prejudice:                                           priate, are enabled, even without proof of
                                                                       intention or negligence or of actual prejudice:
     (a) to order the prohibition or cessation            of           (a) to order the prohibition or cessation              of
          misleading or unfair advertising; and                             misleading or unfair advertising; and
    (b) to take such a decision under an accelerated                   (b) to take such a decision under an accelerated
          procedure, with an interim or final effect,                       procedure, with an interim or final effect,
— the courts are enabled:                                         — the courts or the administrative      authority, as appro-
                                                                      priate, are enabled:
     (a) to require publication          of   a   corrective           (a) to require publication          of   a    corrective
          statement; and                                                    statement; and
     (b) to require publication of their decision either               (b) to require publication of their decision either
          in full or in part and in such form as they may                   in full or in part and in such form as they may
          judge adequate;                                                   judge adequate;
— the sanctions for infringing these laws are a                   Member States shall ensure that the consequences of
    sufficient deterrent, and, where appropriate, take            infringing laws and decisions in the field of misleading
    into account the financial outlay on the                      and unfair advertising take into account the extent of
    advertising, the extent of the damage and any                 the harm.
    profit resulting f r o m the advertising.
                                                                   Where the abovementioned powers are entrusted to an
                                                                  administrative     authority, the authority shall not be
                                                                  controlled by advertising interests, shall be obliged to
                                                                  give reasons for its decisions, and shall be under a duty
                                                                  to exercise its powers so as effectively to control
                                                                  misleading and unfair advertising; and procedures shall
                                                                  exist whereby improper exercise by the authority of its
                                                                  power or improper failure by the authority to exercise its
                                                                  powers or to apply reasonable standards can be reviewed
                                                                  by the courts at the request of the parties.
 ---pagebreak--- N o C 194/6                        Official Journal of the European Communities                               1. 8. 79
                     ORIGINAL TEXT                                                 AMENDED TEXT
                                                                                       Article 6
                                                                        Originally Article 7 — unchanged
                         Article 6                                                     Article 7
                                                                                (Originally Article 6)
Where the advertiser makes a factual claim, the               Where the advertiser makes a factual claim, the
 burden of proof that his claim is correct shall lie with     burden of proof that his claim is correct shall in civil
 him.                                                         and administrative proceedings lie with him.
                         Article 9                                                     Article 9
 Member States shall bring into force the measures            Member States shall bring into force the measures
 necessary to comply with this Directive within 18            necessary to comply with this Directive within 24
 months of its notification and shall forthwith inform        months of its notification and shall forthwith inform
 the Commission thereof.                                      the Commission thereof.
 Member States shall communicate to the Commission            Member States shall communicate to the Commission
 the text of the main provisions of national law which        the text of all provisions of national law which they
 they adopt in the field covered by this Directive.           adopt in the field covered by this Directive.