Pratiche sleali 2005/0029 EN
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- directive 67
- consumer 42
- shall 39
- commercial 39
- which 33
- member 32
- article 31
- product 30
- //ec 29
- council 27
- trader 26
- practices 25
- states 24
- means 22
- provisions 22
- oj l 22
- parliament 21
- european 21
- administrative 21
- such 20
- unfair 19
- without 18
- legal 18
- products 16
- advertising 15
- trade 14
- including 13
- consumers 12
- from 12
- practice 11
- whether 10
- state 10
- take 10
- articles 10
- referred 10
- price 9
- relation 9
- oj l 9
- order 9
- claiming 9
- relating 9
- traders 9
- under 9
- misleading 9
- amended 8
- measures 8
- laws 8
- rules 8
- have 8
- against 8
Article 1
Purpose
The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers' economic interests.
‘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.’
; 2. | in Article 2:
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3. | Article 3a shall be replaced by the following: Article 1 Purpose The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers' economic interests. Article 2 Definitions For the purposes of this Directive:
Article 3 Scope 1. This Directive shall apply to unfair business-to- consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product. 2. This Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract. 3. This Directive is without prejudice to Community or national rules relating to the health and safety aspects of products. 4. In the case of conflict between the provisions of this Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects. 5. For a period of six years from 12 June 2007, Member States shall be able to continue to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing minimum harmonisation clauses. These measures must be essential to ensure that consumers are adequately protected against unfair commercial practices and must be proportionate to the attainment of this objective. The review referred to in Article 18 may, if considered appropriate, include a proposal to prolong this derogation for a further limited period. 6. Member States shall notify the Commission without delay of any national provisions applied on the basis of paragraph 5. 7. This Directive is without prejudice to the rules determining the jurisdiction of the courts. 8. This Directive is without prejudice to any conditions of establishment or of authorisation regimes, or to the deontological codes of conduct or other specific rules governing regulated_professions in order to uphold high standards of integrity on the part of the professional, which Member States may, in conformity with Community law, impose on professionals. 9. In relation to ‘financial services’, as defined in Directive 2002/65/EC, and immovable property, Member States may impose requirements which are more restrictive or prescriptive than this Directive in the field which it approximates. 10. This Directive shall not apply to the application of the laws, regulations and administrative provisions of Member States relating to the certification and indication of the standard of fineness of articles of precious metal. Article 6 Misleading actions 1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional_decision that he would not have taken otherwise:
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional_decision that he would not have taken otherwise, and it involves:
Article 10 Codes of conduct This Directive does not exclude the control, which Member States may encourage, of unfair commercial practices by code_owners and recourse to such bodies by the persons or organisations referred to in Article 11 if proceedings before such bodies are in addition to the court or administrative proceedings referred to in that Article. Recourse to such control bodies shall never be deemed the equivalent of foregoing a means of judicial or administrative recourse as provided for in Article 11. CHAPTER 4 FINAL provisionS Article 11 Enforcement 1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers. Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:
It shall be for each Member State to decide which of these facilities 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 10. These facilities shall be available regardless of whether the consumers affected are in the territory of the Member State where the trader is located or in another Member State. It shall be for each Member State to decide:
2. Under the legal provisions referred to in paragraph 1, 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:
even without proof of actual loss or damage or of intention or negligence on the part of the trader. Member States shall also make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure:
on the understanding that it is for each Member State to decide which of the two options to select. Furthermore, Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of unfair commercial practices the cessation of which has been ordered by a final decision:
3. The administrative authorities referred to in paragraph 1 must:
Where the powers referred to in paragraph 2 are exercised exclusively by an administrative authority, reasons for its decisions shall always be given. Furthermore, 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 13 Penalties Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. These penalties must be effective, proportionate and dissuasive. ‘Article 3a
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4. | Article 4(1) shall be replaced by the following:
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5. | Article 7(1) shall be replaced by the following:
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‘Article 9
Inertia selling
Given the prohibition of inertia selling practices laid down in Directive 2005/29/EC of 11 May 2005of the European Parliament and of the Council concerning unfair business-to- consumer commercial practices in the internal market (10), Member States shall take the measures necessary to exempt the consumer from the provision of any consideration in cases of unsolicited supply, the absence of a response not constituting consent.
2. | Article 9 of Directive 2002/65/EC shall be replaced by the following: ‘Article 9 Given the prohibition of inertia selling practices laid down in Directive 2005/29/EC of 11 May 2005 of the European Parliament and of the Council concerning unfair business-to- consumer commercial practices in the internal market (11) and without prejudice to the provisions of Member States' legislation on the tacit renewal of distance contracts, when such rules permit tacit renewal, Member States shall take measures to exempt the consumer from any obligation in the event of unsolicited supplies, the absence of a reply not constituting consent. |
Article 19
Transposition
Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 12 June 2007. They shall forthwith inform the Commission thereof and inform the Commission of any subsequent amendments without delay.
They shall apply those measures by 12 December 2007. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 21
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 11 May 2005.
For the European Parliament
The President
J. P. BORRELL FONTELLES
For the Council
The President
N. SCHMIT
(1) OJ C 108, 30.4.2004, p. 81.
(2) Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004, p. 260), Council Common Position of 15 November 2004 (OJ C 38 E, 15.2.2005, p. 1), Position of the European Parliament of 24 February 2005 (not yet published in the Official Journal) and Council Decision of 12 April 2005.
(3) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive 97/55/EC of the European Parliament and of the Council (OJ L 290, 23.10.1997, p. 18).
(4) OJ L 144, 4.6.1997, p. 19. Directive as amended by Directive 2002/65/EC (OJ L 271, 9.10.2002, p. 16).
(5) OJ L 166, 11.6.1998, p. 51. Directive as last amended by Directive 2002/65/EC.
(6) OJ L 271, 9.10.2002, p. 16.
(7) OJ L 201, 31.7.2002, p. 37.
(8) OJ L 171, 7.7.1999, p. 12.
(9) OJ L 149, 11.6.2005, p. 22.’;
(10) OJ L 149, 11.6.2005, p. 22.’;
(11) OJ L 149, 11.6.2005, p. 22.’
(12) OJ L 364, 9.12.2004, p. 1.
ANNEX I
COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR
Misleading commercial practices
1. | Claiming to be a signatory to a code_of_conduct when the trader is not. |
2. | Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation. |
3. | Claiming that a code_of_conduct has an endorsement from a public or other body which it does not have. |
4. | Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation. |
5. | Making an invitation_to_purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising). |
6. | Making an invitation_to_purchase products at a specified price and then:
with the intention of promoting a different product (bait and switch) |
7. | Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice. |
8. | Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction. |
9. | Stating or otherwise creating the impression that a product can legally be sold when it cannot. |
10. | Presenting rights given to consumers in law as a distinctive feature of the trader's offer. |
11. | Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1). |
12. | Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product. |
13. | Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not. |
14. | Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products. |
15. | Claiming that the trader is about to cease trading or move premises when he is not. |
16. | Claiming that products are able to facilitate winning in games of chance. |
17. | Falsely claiming that a product is able to cure illnesses, dysfunction or malformations. |
18. | Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions. |
19. | Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent. |
20. | Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item. |
21. | Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not. |
22. | Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. |
23. | Creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold. |
Aggressive commercial practices
24. | Creating the impression that the consumer cannot leave the premises until a contract is formed. |
25. | Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation. |
26. | Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC. |
27. | Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights. |
28. | Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting. |
29. | Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling). |
30. | Explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy. |
31. | Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
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(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p. 23). Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).
(2) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).
ANNEX II
COMMUNITY LAW provisionS SETTING OUT RULES FOR ADVERTISING AND COMMERCIAL COMMUNICATION
Articles 4 and 5 of Directive 97/7/EC
Article 3 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (1)
Article 3(3) of Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of a right to use immovable properties on a timeshare basis (2)
Article 3(4) of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (3)
Articles 86 to 100 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (4)
Articles 5 and 6 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (5)
Article 1(d) of Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (6)
Articles 3 and 4 of Directive 2002/65/EC
Article 1(9) of Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) with a view to regulating management companies and simplified prospectuses (7)
Articles 12 and 13 of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation (8)
Article 36 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (9)
Article 19 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (10)
Articles 31 and 43 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (11) (third non-life insurance Directive)
Articles 5, 7 and 8 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading (12)
(1) OJ L 158, 23.6.1990, p. 59.
(2) OJ L 280, 29.10.1994, p. 83.
(3) OJ L 80, 18.3.1998, p. 27.
(4) OJ L 311, 28.11.2001, p. 67. Directive as last amended by Directive 2004/27/EC (OJ L 136, 30.4.2004, p. 34).
(5) OJ L 178, 17.7.2000, p. 1.
(6) OJ L 101, 1.4.1998, p. 17.
(7) OJ L 41, 13.2.2002, p. 20.
(9) OJ L 345, 19.12.2002, p. 1. Directive as amended by Council Directive 2004/66/EC. (OJ L 168, 1.5.2004, p. 35).
(10) OJ L 145, 30.4.2004, p. 1.
(11) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 2002/87/EC of the European Parliament and of the Council (OJ L 35, 11.2.2003, p. 1).
whereas