Pratiche sleali 2005/0029 EN

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2005/0029 EN cercato: 'competitor' . Output generated live by software developed by IusOnDemand srl

index competitor:

1 Article 6 Misleading actions

1 Article 11 Enforcement

6 ‘Article 3a

whereas competitor:

whereas (6) 2

whereas (8) 2

definitions:

cloud tag:

and the number of total unique words without stopwords is: 373

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 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:

(a)	take legal action against such unfair commercial practices; and/or

(b)	bring such unfair commercial practices 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 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:

(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.

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:

(a)	to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices; or

(b)	if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice,

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:

—	either with interim effect, or

—	with definitive effect,

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:

(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.

3. The administrative authorities referred to in 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.

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 3a

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.

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:

(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.’

;

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

(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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(8) This Directive directly protects consumer economic interests from unfair business-to- consumer commercial practices.
Thereby, it also indirectly protects legitimate businesses from their competitors who do not play by the rules in this Directive and thus guarantees fair competition in fields coordinated by it.
It is understood that there are other commercial practices which, although not harming consumers, may hurt competitors and business customers.
The Commission should carefully examine the need for Community action in the field of unfair competition beyond the remit of this Directive and, if necessary, make a legislative proposal to cover these other aspects of unfair competition.

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