keyboard_tab Fair Advertising 2006/0114 EN

whereas states:

• whereas (2) 2
• whereas (5) 1
• whereas (6) 1
• whereas (11) 1
• whereas (13) 1
• whereas (17) 1
• whereas (20) 1
• whereas (21) 1

definitions:

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

Article 5

1.   Member states shall ensure that adequate and effective means exist to combat misleading advertising and enforce compliance with the provisions on comparative advertising in the interests of traders and competitors.

Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating misleading advertising or regulating comparative advertising may:

(a)	take legal action against such advertising; or

(b)	bring such advertising before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.

2.   It shall be for each Member State to decide which of the facilities referred to in the second subparagraph of paragraph 1 shall be available and whether to enable the courts or administrative authorities to require prior recourse to other established means of dealing with complaints, including those referred to in Article 6.

It shall be for each Member State to decide:

(a)	whether these legal facilities may be directed separately or jointly against a number of traders from the same economic sector; and

(b)	whether these legal facilities may be directed against a code_owner where the relevant code promotes non-compliance with legal requirements.

3.   Under the provisions referred to in paragraphs 1 and 2, Member states shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:

(a)	to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, misleading advertising or unlawful comparative advertising; or

(b)	if the misleading advertising or unlawful comparative advertising has not yet been published but publication is imminent, to order the prohibition of, or to institute appropriate legal proceedings for an order for the prohibition of, such publication.

The first subparagraph shall apply even where there is no proof of actual loss or damage or of intention or negligence on the part of the advertiser.

Member states shall make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure either with interim effect or with definitive effect, at the Member states' discretion.

4.   Member states may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of misleading advertising or unlawful comparative advertising, the cessation of which has been ordered by a final decision:

(a)	to require publication of that decision in full or in part and in such form as they deem adequate;

(b)	to require in addition the publication of a corrective statement.

5.   The administrative authorities referred to in point (b) of the second subparagraph of paragraph 1 must:

(a)	be composed so as not to cast doubt on their impartiality;

(b)	have adequate powers, where they decide on complaints, to monitor and enforce the observance of their decisions effectively;

(c)	normally give reasons for their decisions.

6.   Where the powers referred to in paragraphs 3 and 4 are exercised exclusively by an administrative authority, reasons for its decisions shall always be given. In this case, provision must be made for procedures whereby improper or unreasonable exercise of its powers by the administrative authority or improper or unreasonable failure to exercise the said powers can be the subject of judicial review.

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 7

Member states shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings referred to in Article 5:

(a)

to require the advertiser to furnish evidence as to the accuracy of factual claims in advertising if, taking into account the legitimate interest of the advertiser and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case and in the case of comparative advertising to require the advertiser to furnish such evidence in a short period of time; and

(b)	to consider factual claims as inaccurate if the evidence demanded in accordance with point (a) is not furnished or is deemed insufficient by the court or administrative authority.

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 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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