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: | (i) | the commitment is not aspirational but is firm and is capable of being verified, and | | (ii) | the trader indicates in a commercial practice that he is bound by the code. | |
‘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: | — | point 3 shall be replaced by the following: | ‘3. | “ trader” means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and any one acting in the name of or on behalf of a trader.’ | , | | — | the following point shall be added: | ‘4. | “ 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.’ | ; | |
| 3. | Article 3a shall be replaced by the following: ‘Article 3a | 1. | 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(2), 3 and 7(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 (9); | | (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. | | |
| 4. | Article 4(1) shall be replaced by the following: | ‘1. | Member States shall ensure that adequate and effective means exist to combat misleading advertising in order to enforce compliance with the provisions on comparative advertising in the interest 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. | 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 5. 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.’ | | ; |
| 5. | Article 7(1) shall be replaced by the following: | ‘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.’ | |
whereas
name='idcons3'>(3) The laws of the Member States relating to unfair commercial practices show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market.
In the field of advertising, Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (3) establishes minimum criteria for harmonising legislation on misleading advertising, but does not prevent the Member States from retaining or adopting measures which provide more extensive protection for consumers.
As a result, Member States' provisions on misleading advertising diverge significantly.
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name='idcons6'>(6) This Directive therefore approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers' economic interests and thereby indirectly harm the economic interests of legitimate competitors.
In line with the principle of proportionality, this Directive protects consumers from the consequences of such unfair commercial practices where they are material but recognises that in some cases the impact on consumers may be negligible.
It neither covers nor affects the national laws on unfair commercial practices which harm only competitors' economic interests or which relate to a transaction between traders; taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices, in conformity with Community law, if they choose to do so.
Nor does this Directive cover or affect the provisions of Directive 84/450/EEC on advertising which misleads business but which is not misleading for consumers and on comparative advertising.
Further, this Directive does not affect accepted advertising and marketing practices, such as legitimate product placement, brand differentiation or the offering of incentives which may legitimately affect consumers' perceptions of products and influence their behaviour without impairing the consumer's ability to make an informed decision.
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