keyboard_tab Fair Advertising 2006/0114 EN

whereas directive:

• whereas (1) 2
• whereas (11) 1
• whereas (13) 1
• whereas (15) 1
• whereas (20) 1
• whereas (21) 2

definitions:

• advertising
• misleading advertising
• comparative advertising
• trader
• code owner

Article 1

The purpose of this directive is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted.

Article 2

For the purposes of this directive:

(a)	‘ advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations;

(b)

‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor;

(c)	‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor;

(d)	‘ trader’ means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and anyone acting in the name of or on behalf of a trader;

(e)	‘ code_owner’ means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it.

Article 4

Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

(a)

it is not misleading within the meaning of Articles 2(b), 3 and 8(1) of this directive or Articles 6 and 7 of directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices directive’) (7);

(b)	it compares goods or services meeting the same needs or intended for the same purpose;

(c)	it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

(d)	it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;

(e)	for products with designation of origin, it relates in each case to products with the same designation;

(f)	it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;

(g)	it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name;

(h)	it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor.

Article 6

This directive does not exclude the voluntary control, which Member States may encourage, of misleading or comparative advertising by self-regulatory bodies and recourse to such bodies by the persons or organisations referred to in the second subparagraph of Article 5(1) on condition that proceedings before such bodies are additional to the court or administrative proceedings referred to in that Article.

Article 8

1.   This directive shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection, with regard to misleading advertising, for traders and competitors.

The first subparagraph shall not apply to comparative advertising as far as the comparison is concerned.

2.   The provisions of this directive shall apply without prejudice to Community provisions on advertising for specific products and/or services or to restrictions or prohibitions on advertising in particular media.

3.   The provisions of this directive concerning comparative advertising shall not oblige Member States which, in compliance with the provisions of the Treaty, maintain or introduce advertising bans regarding certain goods or services, whether imposed directly or by a body or organisation responsible, under the law of the Member States, for regulating the exercise of a commercial, industrial, craft or professional activity, to permit comparative advertising regarding those goods or services. Where these bans are limited to particular media, this directive shall apply to the media not covered by these bans.

4.   Nothing in this directive shall prevent Member States, in compliance with the provisions of the Treaty, from maintaining or introducing bans or limitations on the use of comparisons in the advertising of professional services, whether imposed directly or by a body or organisation responsible, under the law of the Member States, for regulating the exercise of a professional activity.

Article 9

Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this directive.

Article 10

directive 84/450/EEC is hereby repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the directives, as set out in Part B of Annex I.

References made to the repealed directive shall be construed as being made to this directive and should be read in accordance with the correlation table set out in Annex II.

Article 11

This directive shall enter into force on 12 December 2007.

Article 12

This directive is addressed to the Member States.

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(1)  Opinion of 26 October 2006 (not yet published in the Official Journal).

(2)  Opinion of the European Parliament of 12 October 2006 (not yet published in the Official Journal) and Council Decision of 30 November 2006.

(3)  OJ L 250, 19.9.1984, p. 17. directive as last amended by directive 2005/29/EC of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22).

(4)  See Annex I, Part A.

(5)  OJ L 93, 31.3.2006, p. 12.

(6)  OJ L 40, 11.2.1989, p. 1. directive as amended by Decision 92/10/EEC (OJ L 6, 11.1.1992, p. 35).

(7)  OJ L 149, 11.6.2005, p. 22.

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