Pratiche sleali 2005/0029 EN
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- directive 57
- consumer 39
- product 33
- commercial 30
- trader 28
- which 27
- article 25
- //ec 25
- council 24
- oj l 22
- european 18
- parliament 18
- shall 17
- means 16
- without 15
- member 13
- including 13
- practices 13
- products 13
- consumers 12
- states 11
- provisions 11
- such 10
- practice 10
- claiming 9
- oj l 9
- relation 9
- relating 9
- administrative 9
- have 8
- rights 8
- amended 8
- conduct 8
- articles 8
- take 8
- price 8
- advertising 7
- than 7
- from 7
- prejudice 7
- rules 7
- taken 7
- equivalent 7
- national 7
- making 7
- acting 7
- trade 6
- aspects 6
- decision 6
- appropriate 6
Article 17
Information
Member States shall take appropriate measures to inform consumers of the national law transposing this Directive and shall, where appropriate, encourage traders and code_owners to inform consumers of their codes of conduct.
Article 2
Definitions
For the purposes of this Directive:
(a) | ‘ consumer’ means any natural person who, in commercial practices covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession; |
(b) | ‘ trader’ means any natural or legal person who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader; |
(c) | ‘ product’ means any goods or service including immovable property, rights and obligations; |
(d) | ‘business-to- consumer commercial practices’ (hereinafter also referred to as commercial practices) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers; |
(e) | ‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional_decision that he would not have taken otherwise; |
(f) | ‘ code_of_conduct’ means an agreement or set of rules not imposed by law, regulation or administrative provision of a Member State which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors; |
(g) | ‘ 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; |
(h) | ‘ professional_diligence’ means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity; |
(i) | ‘ invitation_to_purchase’ means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase; |
(j) | ‘ undue_influence’ means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision; |
(k) | ‘ transactional_decision’ means any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting; |
(l) | ‘ regulated_profession’ means a professional activity or a group of professional activities, access to which or the pursuit of which, or one of the modes of pursuing which, is conditional, directly or indirectly, upon possession of specific professional qualifications, pursuant to laws, regulations or administrative provisions. |
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:
(a) | the existence or nature of the product; |
(b) | the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product; |
(c) | the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product; |
(d) | the price or the manner in which the price is calculated, or the existence of a specific price advantage; |
(e) | the need for a service, part, replacement or repair; |
(f) | the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions; |
(g) | the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face. |
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:
(a) | any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; |
(b) | non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
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Article 8
Aggressive commercial practices
A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue_influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional_decision that he would not have taken otherwise.
Article 9
Use of harassment, coercion and undue_influence
In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue_influence, account shall be taken of:
(a) | its timing, location, nature or persistence; |
(b) | the use of threatening or abusive language or behaviour; |
(c) | the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the product; |
(d) | any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; |
(e) | any threat to take any action that cannot legally be taken. |
CHAPTER 3
CODES OF conduct
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 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 17 Information Member States shall take appropriate measures to inform consumers of the national law transposing this Directive and shall, where appropriate, encourage traders and code_owners to inform consumers of their codes of conduct. 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
Aggressive commercial practices
(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 |