Directive of 11 May 2005 Relating to Deloyal Practices Towards Consumers
LexInter | October 29, 2011 | 0 Comments

Directive of 11 May 2005 Relating to Deloyal Practices Towards Consumers

on unfair commercial practices by businesses vis-à-vis consumers in the internal market and amending Council Directive 84/450 / EEC and Directives 97/7 / EC, 98/27 / EC and 2002/65 / EC of European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council

(“Unfair Commercial Practices Directive”)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee [1],

acting in accordance with the procedure referred to in Article 251 of the Treaty [2],

considering the following:

(1) Article 153 (1) and paragraph 3 (a) of the Treaty provides that the Community contributes to the achievement of a high level of consumer protection by the measures which it adopts in application of the Article 95 of the Treaty.

(2) In accordance with Article 14 (2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and the freedom of establishment are guaranteed. The development of fair trade practices within the area without internal borders is essential to foster the expansion of cross-border activities.

(3) The laws of the Member States on unfair commercial practices show marked differences which can lead to appreciable distortions of competition and impede the proper functioning of the internal market. In the field of advertising, Council Directive 84/450 / EEC of 10 September 1984 on the approximation of the laws, regulations and administrative provisions of the Member States relating to misleading advertising and comparative advertising [3] sets minimum criteria aimed at harmonization of the legislation on misleading advertising, but does not preclude the maintenance or adoption by Member States of measures providing consumers with more extensive protection. Consequently,

(4) These disparities cause uncertainty as to the national rules applicable to unfair commercial practices detrimental to the economic interests of consumers and create numerous obstacles affecting businesses and consumers. These obstacles increase the cost to be borne by businesses in exercising the freedoms linked to the internal market, in particular when they wish to engage in marketing, launch advertising campaigns or offer cross-border commercial promotions. For consumers, such barriers also cause uncertainty about their rights and weaken their confidence in the internal market.

(5) In the absence of uniform rules at Community level, obstacles to the free cross-border movement of services and goods or to the freedom of establishment could be justified, in the light of the case-law of the Court of Justice of the European Communities, provided that they aim to protect objectives recognized in the public interest and are proportionate to those objectives. Taking into account the Community objectives, as defined in the provisions of the Treaty and secondary Community law relating to freedom of movement, and in accordance with the Commission’s policy on commercial communications, specified in the Commission communication entitled “Follow-up of the Green Paper: commercial communications in the internal market “, these obstacles should be removed. They can only be achieved by establishing uniform rules at Community level which ensure a high level of consumer protection, and by clarifying certain legal concepts, to the extent necessary for the proper functioning of the internal market and in order to ” ensure legal certainty.

(6) The purpose of this Directive is therefore to approximate the laws of the Member States relating to unfair commercial practices, including unfair advertising, directly affecting the economic interests of consumers and, therefore, indirectly the economic interests of legitimate competitors. . In accordance with the principle of proportionality, this Directive protects consumers from the consequences of such unfair commercial practices where they are substantial, while recognizing that in some cases these consequences are negligible. It neither covers nor does affects national laws relating to unfair commercial practices which only harm the economic interests of competitors or which concern a transaction between professionals; in order to take full account of the principle of subsidiarity, the Member States will retain, if they so wish, the right to regulate the practices concerned, in accordance with Community law. This Directive does not cover or affect the provisions of Directive 84/450 / EEC relating to advertising which is misleading for businesses but not for consumers and for comparative advertising. Nor does this Directive affect accepted advertising and commercial practices, such as legitimate product placement,

(7) This Directive concerns commercial practices which aim directly at influencing the commercial decisions of consumers in relation to products. It does not apply to business practices carried out primarily for other purposes, such as commercial communications to investors, such as annual reports and corporate promotional literature. It does not apply to the legal requirements concerning good taste and decorum, which vary greatly from one Member State to another. Business practices such as, for example, street solicitation may be unwelcome in some Member States for cultural reasons. Member States should therefore have the possibility of continuing to prohibit certain commercial practices in their territory, in accordance with Community law, for reasons of good taste and propriety, even where such practices do not restrict consumers’ freedom of choice. It would be wise, when applying the directive, in particular the general clauses, to take broad account of the circumstances of each case.

(8) This Directive expressly protects the economic interests of consumers against unfair commercial practices by undertakings towards them. It therefore also indirectly protects legitimate businesses against competitors who do not follow the rules of the game laid down by this Directive, thus ensuring fair competition in the sector of activity that it coordinates. Of course, there are other business practices which, while not harming consumers, can nonetheless harm competitors and business customers. The Commission should carefully consider whether to consider Community action in relation to unfair competition beyond the scope of

(9) This Directive applies without prejudice to individual remedies brought by persons injured by an unfair commercial practice. It also applies without prejudice to Community and national rules relating to contract law, intellectual property rights, health and safety issues related to products, conditions of establishment and authorization regimes, in particular the rules which, in accordance with Community law, concern gambling activities, and Community competition rules and national provisions aimed at implementing them. Member States will thus be able to maintain or introduce in their territory restrictive or restrictive measures. prohibition of commercial practices for reasons of protection of the health and safety of consumers, regardless of the place of establishment of the trader, for example with regard to alcohol, tobacco or pharmaceutical products. In view of their complexity and the serious risks inherent to them, financial services and real estate must be subject to detailed requirements, including the establishment of positive obligations to be respected by professionals. This is why, as regards financial services and immovable property, this Directive applies without prejudice to the right of Member States to adopt measures which go beyond the provisions of this Directive, to protect the economic interests of consumers. This Directive should not regulate the certification and indication of the title of articles of precious metal.

(10) It is necessary to ensure that the relationship between this Directive and existing Community legislation is consistent, in particular where detailed provisions on unfair commercial practices apply to specific sectors. This Directive therefore amends Directive 84/450 / EEC, Directive 97/7 / EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts [4], Directive 98/27 / EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumer interests [5] and Directive 2002/65 / EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of financial services to consumers [6]. This Directive therefore only applies where there are no specific Community provisions governing particular aspects of unfair commercial practices, such as information requirements or rules governing the presentation of information to the public. consumer. It provides protection to consumers when there is no sectoral legislation specific to the community level and prohibits professionals from giving a false impression of the nature of the products. This is particularly important in the case of complex products involving a high level of risk for consumers, such as certain products linked to financial services. This Directive therefore complements the acquis communautaire applicable to commercial practices prejudicial to the economic interests of consumers.

(11) The high level of convergence resulting from the approximation of national provisions ensured by this Directive creates a high common level of consumer protection. This Directive establishes a single general prohibition on unfair commercial practices which adversely affect the economic behavior of consumers. It also establishes rules on aggressive business practices, which are not currently regulated at Community level.

(12) Harmonization will considerably increase legal certainty for both consumers and traders. Consumers and professionals will thus be able to rely on a single regulatory framework based on clearly defined legal concepts regulating all aspects of unfair commercial practices within the European Union. The consequence of this will be to eliminate the obstacles resulting from the disparity of rules relating to unfair commercial practices detrimental to the economic interests of consumers and to allow the completion of the internal market in this area.

(13) In order to achieve Community objectives by removing obstacles to the internal market, it is necessary to replace the divergent general clauses and legal principles currently in force in the Member States. The common and single general prohibition established by this Directive therefore covers unfair commercial practices affecting the economic behavior of consumers. In order to strengthen consumer confidence, the general prohibition should also apply to unfair commercial practices which are used outside any contractual relationship between trader and consumer or following the conclusion of a contract or during performance. of it.

(14) It is desirable that deceptive commercial practices cover practices, including misleading advertising, which, by misleading the consumer, prevent them from making an informed and therefore effective choice. In accordance with the laws and practices of the Member States on misleading advertising, this Directive distinguishes between deceptive practices and deceptive actions and deceptive omissions. With regard to omissions, this Directive lists a limited amount of key information that the consumer needs to make an informed business decision. This information should not be provided in all advertisements but only when the professional makes an invitation to purchase, concept clearly defined by this directive. The approach taken in this Directive, which consists of full harmonization, does not prevent Member States from specifying in their national law the main characteristics of particular products, for example collectibles or electrical goods, of which the omission would be substantial when making an invitation to purchase. This Directive is not intended to reduce consumer choice by prohibiting the promotion of products which appear to be similar to other products, unless such similarity confuses consumers as to the commercial origin of the product. and therefore be misleading. This Directive should be applies without prejudice to existing Community legislation which expressly leaves Member States the choice between several regulatory options for the purposes of consumer protection in commercial practices. This Directive should in particular apply without prejudice to Article 13 (3) of Directive 2002/58 / EC of the European Parliament and of the Council of 12 July 2002 on the processing of personal data and the protection of privacy in the electronic communications sector [7].

(15) Where Community legislation lays down information requirements applicable to advertising, commercial communication and marketing, the information in question is deemed to be substantial within the meaning of this Directive. Member States will have the option of maintaining or establishing information requirements related to contract law or having contract law implications when this possibility is provided for by the minimum clauses included in Community law instruments. existing. A non-exhaustive list of such information requirements as they appear in the acquis can be found in Annex II. Since this Directive aims to achieve full harmonization, only information required under Community law is considered to be substantial for the purposes of Article 7 (5) thereof. If Member States have introduced information requirements beyond or in addition to what is specified by Community legislation, by virtue of the minimum clauses, failure to comply with these requirements will not be considered a misleading omission within the meaning of this Directive. On the other hand, the Member States will have the option, when the minimum clauses included in Community law allow it, to maintain or introduce more stringent provisions, in accordance with Community law, to ensure a higher level of protection of contractual rights. individual consumers.

(16) The provisions on aggressive commercial practices should cover practices which significantly impair the consumer’s freedom of choice. These are practices that include harassment, coercion, including the use of physical force, or undue influence.

(17) In order to provide greater legal certainty, it is desirable to identify commercial practices which are, in all circumstances, unfair. Annex I therefore contains the complete list of all these practices. These are the only commercial practices that can be considered unfair without a case-by-case assessment under the provisions of Articles 5 to 9. This list can only be modified by a revision of the Directive.

(18) All consumers should be protected from unfair commercial practices. However, the Court of Justice considered it necessary, when ruling on advertising cases since the transposition of Directive 84/450 / EEC, to examine their effects for a typical fictitious consumer. In accordance with the principle of proportionality, and with a view to allowing the effective application of the protections which fall under it, this Directive takes as an evaluation criterion the average consumer who is normally informed and reasonably attentive and informed, taking into account social, cultural factors language, according to the interpretation given by the Court of Justice, but also includes provisions to prevent the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices. When a business practice specifically targets a particular group of consumers, such as children, it is desirable that its impact be assessed from the perspective of the average member of that group. Consequently, it is appropriate to include on the list of practices deemed to be unfair in all circumstances a provision which, without enacting a total ban on advertising aimed at children, protects them from direct incentives to buy. The notion of average consumer is not a statistical notion. Courts and national authorities will have to rely on their own powers of judgment,

(19) When certain characteristics, such as age, physical or mental infirmity or credulity, make a particular group of consumers particularly vulnerable to a commercial practice or to the product to which it relates, or when the economic behavior of that alone group of consumers is likely to be affected by this practice in a way that the trader can reasonably foresee, it is necessary to ensure that this group is sufficiently protected, by evaluating the practice in question from the point of view of the member average of this group.

(20) A role should be provided for codes of conduct, which enable traders to apply the principles of this Directive effectively in particular economic fields. In sectors where the behavior of professionals is subject to specific binding requirements, these should also be taken into account for the purposes of professional diligence requirements in the sector concerned. The control exercised by those responsible for codes at national or community level in order to eliminate unfair commercial practices can avoid recourse to administrative or judicial action and should therefore be encouraged. In order to ensure a high level of consumer protection,

(21) Persons or organizations considered, under national law, to have a legitimate interest in bringing proceedings must have remedies available to bring an action against unfair commercial practices, either before a court or before a competent administrative authority. to adjudicate complaints or initiate appropriate legal action. Although the burden of proof should be determined in accordance with national law, courts and administrative authorities should be empowered to require professionals to provide evidence on the accuracy of their factual claims.

(22) Member States should lay down the system of penalties applicable to infringements of the provisions of this Directive and ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

(23) Given that the objectives of this Directive, namely to eliminate obstacles to the functioning of the internal market posed by national laws on unfair commercial practices and to ensure a high common level of consumer protection, by approximating laws, regulatory and administrative measures of the Member States concerning unfair commercial practices, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community can take action, in accordance with the principle of subsidiarity enshrined in the Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that article, this Directive does not

(24) This Directive should be reviewed in order to ensure that obstacles to the internal market have been addressed and that a high level of consumer protection is achieved. This review could give rise to a Commission proposal to amend this Directive, which could include a limited extension of the derogation provided for in Article 3 (5) and / or an amendment to other legislation on consumer protection, reflecting the commitment made by the Commission as part of its consumer policy strategy to review the existing acquis in order to achieve a high common level of consumer protection.

(25) This Directive respects the fundamental rights and observes the principles recognized in particular by the Charter of Fundamental Rights of the European Union,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

First article

Goal

The objective of this Directive is to contribute to the proper functioning of the internal market and to ensure a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States relating to unfair commercial practices which harm economic interests of consumers.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

(a) “consumer”: any natural person who, for the commercial practices covered by this Directive, acts for purposes which do not fall within the framework of his commercial, industrial, craft or professional activity;

b) “professional”: any natural or legal person who, for the commercial practices covered by this Directive, acts for purposes which fall within the framework of his activity, commercial, industrial, craft or professional, and any person acting on behalf or on behalf of a professional;

(c) “product”: any good or service, including immovable property, rights and obligations;

d) “commercial practices of companies vis-à-vis consumers” (hereinafter also referred to as “commercial practices”): any action, omission, conduct, approach or commercial communication, including advertising and marketing, on the part of a professional, directly related to the promotion, sale or supply of a product to consumers;

(e) “substantial alteration in the economic behavior of consumers” means the use of a commercial practice which materially compromises the consumer’s ability to make an informed decision and consequently leads him to take a commercial decision which he does not would not have taken otherwise;

f) “code of conduct”: an agreement or a set of rules which are not imposed by the laws, regulations or administrative provisions of a Member State and which define the behavior of professionals who undertake to be bound by it by concerning one or more commercial practices or one or more sectors of activity;

g) “code manager”: any entity, including a professional or group of professionals, responsible for drawing up and revising a code of conduct and / or for monitoring compliance with this code by those who are committed to be bound by him;

h) “professional diligence” means the level of specialist competence and care which the trader is reasonably expected to exercise vis-à-vis the consumer, in accordance with honest market practice and / or the general principle of good faith in his field of ‘activity;

i) “invitation to purchase”: a commercial communication indicating the characteristics of the product and its price in an appropriate manner according to the means used for this commercial communication and thus allowing the consumer to make a purchase;

j) “undue influence” means the use of a position of strength vis-à-vis the consumer in such a way as to exert pressure on the latter, even without resorting to physical force or threatening to do so, in such a manner their ability to make an informed decision is significantly limited;

k) “business decision”: any decision taken by a consumer concerning the advisability, terms and conditions relating to the fact of purchasing, of making full or partial payment for a product, of keeping or of disposing of a product. product or to exercise a contractual right in connection with the product; such a decision may lead the consumer either to act or to refrain from acting;

l) “regulated profession”: an activity or a set of professional activities to which the access, exercise or one of the methods of exercise is subject directly or indirectly to legislative, regulatory or administrative provisions relating to the possession of qualifications determined professional.

Article 3

Scope

1. This Directive applies to unfair commercial practices by businesses vis-à-vis consumers, as defined in Article 5, before, during and after a commercial transaction relating to a product.

2. This Directive shall apply without prejudice to contract law, and in particular to rules relating to the validity, formation or effects of contracts.

3. This Directive shall apply without prejudice to Community or national provisions relating to the health and safety of products.

4. In the event of a conflict between the provisions of this Directive and other Community rules governing specific aspects of unfair commercial practices, those other rules shall take precedence and apply to those specific aspects.

5. For a period of six years from 12 June 2007, Member States may continue to apply national provisions approximated by this Directive which are more restrictive or more stringent than this Directive and which implement directives including minimum harmonization clauses. These measures must be essential to ensure that consumers are adequately protected against unfair commercial practices and must be proportionate to this objective to be achieved. The review referred to in Article 18 may, if necessary, include a proposal to extend this derogation for a limited period.

6. Member States shall notify the Commission without delay of any national provision applied under paragraph 5.

7. This Directive applies without prejudice to the rules governing the jurisdiction of the courts.

8. This Directive shall apply without prejudice to the conditions of establishment or authorization schemes or codes of ethics or any other specific provision governing regulated professions which Member States may impose on professionals, in accordance with Community law. , to ensure that these meet a high level of integrity.

9. As regards “financial services”, within the meaning of Directive 2002/65 / EC, and immovable property, Member States may impose more restrictive or more stringent requirements than those laid down in this Directive in the field. in which the latter aims to approximate the provisions in force.

10. This Directive does not cover the application of the laws, regulations and administrative provisions of the Member States relating to the certification and indication of the title of articles of precious metal.

Article 4

Indoor market

Member States shall not restrict the freedom to provide services or the free movement of goods for reasons falling within the field in which this Directive seeks to approximate the provisions in force.

CHAPTER 2

Unfair Commercial Practices

Article 5

Prohibition of unfair commercial practices

1. Unfair commercial practices are prohibited.

2. An unfair trade practice if:

a) it is contrary to the requirements of professional diligence,

and

b) it alters or is likely to substantially alter the economic behavior, in relation to the product, of the average consumer that it touches or to whom it is addressed, or of the average member of the group when a commercial practice is targeted towards a particular group of consumers.

3. Commercial practices which are likely to substantially alter the economic behavior of a clearly identifiable group of consumers because they are particularly vulnerable to the practice used or to the product to which it relates due to a disability. mental or physical, age or gullibility, when one might reasonably expect the professional to foresee this consequence, are assessed from the perspective of the average member of this group. This provision is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not intended to be understood in a literal sense.

4. In particular, are unfair commercial practices which are:

a) misleading within the meaning of Articles 6 and 7,

or

b) aggressive within the meaning of Articles 8 and 9.

5. Annex I contains the list of commercial practices deemed to be unfair in all circumstances. This single list applies in all Member States and can only be changed through a review of this Directive.

Section 1

Deceptive Marketing Practices

Article 6

Deceptive actions

1. A commercial practice is deemed to be deceptive if it contains false information, and is therefore untrue or that, in any way, including its general presentation, it misleads or is likely to mislead the consumer medium, even if the information presented is factually correct, as regards one or more of the following aspects and that, in either case, it causes or is likely to cause it to take a decision commercial that it would not have taken otherwise:

(a) the existence or nature of the product;

b) the main characteristics of the product, such as its availability, its advantages, the risks it presents, its execution, its composition, its accessories, the after-sales service and the handling of complaints, the mode and date of manufacture or service, its delivery, its fitness for use, its use, its quantity, its specifications, its geographical or commercial origin or the results that can be expected from its use, or the results and the essential characteristics of the tests or controls carried out on the product;

c) the scope of the professional’s commitments, the motivation for the commercial practice and the nature of the sales process, as well as any statement or symbol suggesting that the professional or the product benefits from direct sponsorship or support or indirect;

(d) the price or the method of calculating the price, or the existence of a specific price advantage;

e) the need for service, spare part, replacement or repair;

f) the nature, qualities and rights of the professional or his representative, such as his identity and assets, qualifications, status, approval, affiliation or ties and industrial, commercial or intellectual property rights or the awards and distinctions he has received;

g) consumer rights, in particular the right of replacement or reimbursement according to the provisions of Directive 1999/44 / EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale and guarantees of consumer goods [8], or the risks it may incur.

2. A commercial practice is also deemed to be deceptive if, in its factual context, taking into account all its characteristics and the circumstances, it causes or is likely to cause the average consumer to make a commercial decision that he or she did not take. otherwise, and that it involves:

(a) any marketing activity relating to a product, including comparative advertising, creating confusion with another product, brand, trade name or other distinctive sign of a competitor;

b) failure by the professional to comply with the commitments contained in a code of conduct by which he has undertaken to be bound, therefore:

i) that these commitments are not mere aspirations, but are firm and verifiable,

and

ii) that the trader indicates, in the context of a commercial practice, that he is bound by the code.

Article 7

Misleading omissions

1. A commercial practice is deemed to be misleading if, in its factual context, taking into account all its characteristics and the circumstances as well as the limitations specific to the means of communication used, it omits substantial information which the average consumer needs, taking into account the context, to make an informed business decision and, therefore, cause him or is likely to cause him to make a business decision that he would not have taken otherwise.

2. A commercial practice is also considered to be a misleading omission when a trader, taking into account the aspects mentioned in paragraph 1, conceals material information referred to in that paragraph or provides it in an unclear, unintelligible, ambiguous or inappropriate manner, or when ” it does not indicate its true commercial intention when this does not already emerge from the context and when, in either case, the average consumer is thus led or is likely to be led to take a business decision he wouldn’t have made otherwise.

3. Where the means of communication used for the purposes of commercial practice impose limitations on space or time, in order to determine whether information has been omitted, account should be taken of these limitations and of any action taken. by the trader to make the information available to the consumer by other means.

4. During an invitation to purchase, the following information is considered to be substantial, if it does not already emerge from the context:

(a) the main characteristics of the product, to the extent appropriate having regard to the means of communication used and the product concerned;

b) the geographical address and the identity of the trader, for example his company name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

c) the price inclusive of all taxes, or, where the nature of the product means that the price cannot reasonably be calculated in advance, the way in which the price is calculated, as well as, where applicable, any additional costs of transport, delivery and postage, or, where these costs cannot reasonably be calculated in advance, a statement that these costs may be borne by the consumer;

d) the terms of payment, delivery, execution and handling of complaints, if they differ from the conditions of professional diligence;

e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

5. Information which is provided for by Community law and which relates to commercial communications, including advertising or marketing, and a non-exhaustive list of which appears in Annex II, is deemed to be substantial.

Section 2

Aggressive business practices

Article 8

Aggressive business practices

A commercial practice is considered aggressive if, in its factual context, taking into account all its characteristics and the circumstances, it alters or is likely to alter significantly, as a result of harassment, coercion, including the use of physical force, or undue influence, the freedom of choice or conduct of the average consumer with respect to a product, and, therefore, causes or is likely to cause him to make a business decision which ‘he wouldn’t have taken otherwise.

Article 9

Use of harassment, coercion or undue influence

In order to determine whether a business practice employs harassment, coercion, including physical force, or undue influence, the following elements are taken into consideration:

(a) when and where the practice is carried out, its nature and its persistence;

b) the use of physical or verbal threats;

c) the informed exploitation by the trader of any misfortune or particular circumstance of a gravity likely to alter the consumer’s judgment, with the aim of influencing the consumer’s decision with regard to the product;

d) any significant or disproportionate non-contractual obstacle imposed by the trader when the consumer wishes to assert his contractual rights, and in particular the right to terminate the contract or to change product or supplier;

e) any threat of action when such action is not legally possible.

CHAPTER 3

CODES OF CONDUCT

Article 10

Codes of conduct

This Directive does not exclude the monitoring, which Member States may encourage, of unfair commercial practices by those responsible for codes of conduct, nor the use of the latter by the persons or organizations referred to in Article 11, if it there are proceedings before such entities in addition to the judicial or administrative proceedings referred to in that article.

Recourse to such control bodies does not in any way constitute a waiver of a judicial or administrative remedy referred to in Article 11.

CHAPTER 4

FINAL PROVISIONS

Article 11

Law enforcement

1. Member States shall ensure that there are adequate and effective means to combat unfair commercial practices in order to enforce the provisions of this Directive in the interest of consumers.

These means must include legal provisions under which persons or organizations having a legitimate interest under national law in combating unfair commercial practices, including competitors, may:

a) take legal action against such unfair trade practices,

and or

b) bring such unfair commercial practices before an administrative authority competent either to rule on complaints or to initiate appropriate legal proceedings.

It is for each Member State to decide which of these procedures will be used and whether it is appropriate for courts or administrative authorities to require prior recourse to other established channels for resolving complaints, including those referred to in Article 10. Consumers must have access to these means, whether they are established in the territory of the same Member State as the trader or in that of another Member State.

It is up to each Member State to decide:

a) whether these legal means can be implemented separately or jointly against a certain number of professionals in the same economic sector,

and

b) if these legal means can be used against the person responsible for a code when this code encourages non-compliance with legal requirements.

2. Within the framework of the legal provisions referred to in paragraph 1, Member States shall confer on courts or administrative authorities powers enabling them, in cases where they consider that such measures are necessary having regard to all the interests at stake, and in particular the general interest:

(a) to order the cessation of unfair commercial practices or to initiate appropriate proceedings with a view to ordering the cessation of such practices,

or

(b) if the unfair trade practice has not yet been implemented but is imminent, to prohibit the practice or to initiate appropriate proceedings with a view to ordering its prohibition,

even in the absence of proof of actual loss or damage, or of intention or negligence on the part of the trader.

Member States shall also provide that the measures referred to in the first subparagraph may be taken under an accelerated procedure:

– either with temporary effect,

– either with final effect,

it being understood that it is up to each Member State to determine which of these two options will be retained.

In addition, Member States may confer on courts or administrative authorities powers enabling them, with a view to eliminating the lingering effects of unfair commercial practices the end of which has been ordered by a final decision:

(a) to require the publication of the said decision in whole or in part and in the form they deem appropriate;

b) to demand, in addition, the publication of an amending press release.

3. The administrative authorities referred to in paragraph 1 must:

(a) be composed in such a way that their impartiality cannot be questioned;

b) have sufficient powers, when adjudicating complaints, to effectively monitor and enforce compliance with their decisions;

c) in principle give reasons for their decisions.

Where the powers referred to in paragraph 2 are exercised exclusively by an administrative authority, the latter must always give reasons for its decisions. In addition, in this case, procedures must be provided for in which any improper or unjustified exercise of the powers of the administrative authority or any improper or unjustified failure to exercise such powers may be the subject of a judicial remedy.

Article 12

Courts and administrative authorities: justification of the allegations

Member States shall confer on the courts or administrative authorities powers enabling them, during a judicial or administrative procedure referred to in Article 11:

a) to require the trader to provide evidence as to the accuracy of his factual allegations in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate to the in view of the circumstances of the case,

and

b) to consider factual allegations as inaccurate if the evidence required in accordance with point a) is not provided or is considered insufficient by the court or administrative authority.

Article 13

Sanctions

Member States shall determine the system of penalties applicable to infringements of the national provisions adopted pursuant to this Directive, and shall do their utmost to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

Article 14

Amendments to Directive 84/450 / EEC

Directive 84/450 / EEC is amended as follows:

1.Article 1 is replaced by the following:

“First article

The purpose of this Directive is to protect traders against misleading advertising and its unfair consequences and to establish the conditions under which comparative advertising is considered to be lawful. ”

2) in Article 2:

– point 3 is replaced by the following:

“3.” professional “: any natural or legal person who acts for purposes which fall within the scope of his commercial, industrial, craft or liberal activity and any person acting in the name or on behalf of a professional.”

;

the following point is added:

“4.” code manager “: any entity, including a professional or group of professionals, responsible for drawing up and revising a code of conduct and / or for monitoring compliance with this code by those who have undertaken to be bound by him. ”

3.Article 3a is replaced by the following:

“Article 3a

1. As far as comparison is concerned, comparative advertising is lawful provided 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 of Articles 6 and 7 of Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices by businesses vis-à-vis consumers in the internal market [9];

b) it compares goods or services meeting the same needs or having the same objective;

c) it objectively compares one or more essential, relevant, verifiable and representative characteristics of these goods and services, possibly including the price;

d) it does not discredit or denigrate the brands, trade names, other distinctive signs, goods, services, activities or position of a competitor;

e) for products with a designation of origin, it relates in each case to products with the same designation;

(f) it does not take unfair advantage of the reputation attached to a mark, trade name or other distinctive signs of a competitor or of the appellation of origin of competing products;

g) it does not present a good or a service as an imitation or a reproduction of a good or a service bearing a trademark or a protected trade name;

h) it is not a source of confusion among professionals, between the advertiser and a competitor or between the brands, trade names, other distinctive signs, goods or services of the advertiser and those of a competitor.

(4) in Article 4, paragraph 1 is replaced by the following:

“1. Member States shall ensure that there are adequate and effective means to combat misleading advertising and to enforce the provisions on comparative advertising in the interest of traders and competitors. These means must include provisions under which persons or organizations having, under national law, a legitimate interest in combating misleading advertising or in regulating comparative advertising may:

a) take legal action against such advertising,

or

b) bring such publicity before an administrative authority competent either to rule on complaints or to initiate appropriate legal proceedings.

It is for each Member State to decide which of these procedures will be used and whether it is appropriate for courts or administrative authorities to require prior recourse to other established channels for resolving complaints, including those mentioned in Article 5.

It is up to each Member State to decide:

a) whether these legal means can be implemented separately or jointly against a certain number of professionals in the same economic sector,

and

b) whether these legal means can be used against the person responsible for a code when this code encourages non-compliance with legal requirements. ”

(5) in Article 7, paragraph 1 is replaced by the following:

“1. This Directive shall not preclude the retention or adoption by Member States of provisions intended to ensure, in matters of misleading advertising, more extensive protection for traders and competitors.”

Article 15

Amendments to directives 97/7 / EC and 2002/65 / EC

1) Article 9 of Directive 97/7 / EC is replaced by the following:

“Article 9

Supply not requested

Since unsolicited supply practices are prohibited by Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices by businesses vis-à-vis consumers in the internal market [10] , Member States shall take the necessary measures to exempt the consumer from any consideration in the event of an unsolicited supply, the absence of a response not constituting consent.

2.Article 9 of Directive 2002/65 / EC is replaced by the following:

“Article 9

Since unsolicited supply practices are prohibited by Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices by businesses vis-à-vis consumers in the internal market [11] , and without prejudice to the provisions in force in the legislation of the Member States relating to the tacit renewal of distance contracts when these allow such tacit renewal, the Member States shall take the necessary measures to exempt the consumer from any obligation in the event of supply not requested, the absence of a response does not constitute consent.

Article 16

Amendments to Directives 98/27 / EC and Regulation (EC) No 2006/2004

(1) in the Annex to Directive 98/27 / EC, point 1 is replaced by the following:

“1. Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices by businesses towards consumers in the internal market (OJ L 149, 11.6.2005, p. 22. ) ”

2) In the annex to Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between the national authorities responsible for the application of consumer protection legislation (“Regulation on consumer protection cooperation “) [12] the following point is added:

“16. Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices by businesses vis-à-vis consumers in the internal market (OJ L 149, 11.6.2005, p. 22 .) ”

Article 17

Information

Member States shall take the appropriate measures to inform consumers of the provisions of national law which transpose this Directive and, where appropriate, encourage professionals and those responsible for codes to make their codes of conduct known to consumers.

Article 18

Revision

1. By 12 June 2006 at the latest, the Commission shall submit to the European Parliament and to the Council a comprehensive report on the application of its Article 3 (9) of this Directive and in particular on the application of its Article 4 and of its Annex I, on the extent of any further harmonization and simplification of Community law on consumer protection and, taking into account Article 3 (5), on any measure that should be taken at Community level to ensure that appropriate levels of consumer protection are maintained. This report shall be accompanied, if necessary, by a proposal for the revision of this Directive or of other relevant parts of Community law.

2. The European Parliament and the Council shall endeavor to act, in accordance with the Treaty, within two years of the presentation by the Commission of any proposal submitted under paragraph 1.

Article 19

Transposition

Member States shall adopt and publish, by 12 June 2007 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof and shall notify it without delay of any subsequent modification.

They shall apply these provisions no later than 12 December 2007. When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.

Article 20

Coming into force

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 21

Recipients

This Directive is addressed to the Member States.

 

Done in Strasbourg, May 11, 2005.

For the European Parliament

President

JP Borrell Fontelles

For the Council

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 of 30.4.2004, p. 260), Council common position of 15 November 2004 (OJ C 38 E of 15.2.2005, p. 1) and position of the European Parliament of 24 February 2005 (not yet published in the Official Journal). Council decision of April 12, 2005.

[3] OJ L 250, 19.9.1984, p. 17. Directive 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 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.

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APPENDIX I

COMMERCIAL PRACTICES DEEMED TO BE UNFAIR IN ALL CIRCUMSTANCES

Deceptive Marketing Practices

1) For a professional, claiming to be a signatory of a code of conduct when he is not.

2) Display a certificate, quality mark or equivalent without having obtained the necessary authorization.

3) Affirm that a code of conduct has received the approval of a public body or other when this is not the case.

4) Affirm that a professional (including its commercial practices) or that a product has been approved, approved or authorized by a public or private body when this is not the case or without respecting the conditions of the approval , approval or authorization received.

5) Offer the purchase of products at an indicated price without revealing the plausible reasons that the professional might have for thinking that he will not be able to supply himself, or to have supplied by another professional, the products in question or products equivalent to the indicated price, for a period and in quantities that are reasonable taking into account the product, the extent of the advertising made for the product and the price offered (bait advertising).

6) Offer the purchase of products at a specified price, and then:

a) refuse to present the advertised article to consumers,

or

b) refuse to take orders for this item or to deliver it within a reasonable time,

or

c) present a defective sample,

in order to promote a different product (bait and shoe).

7) Falsely state that a product will only be available for a very limited period or that it will only be available under special conditions for a very limited period in order to obtain an immediate decision and deprive consumers of a possibility or sufficient time to make an informed choice.

8) Undertake to provide after-sales service to consumers with whom the trader has communicated before the transaction in a language that is not an official language of the Member State in which he is established and, then, ensure this service only in another language without clearly informing the consumer before the latter commits to the transaction.

9) Declare or in any other way give the impression that the sale of a product is lawful when it is not.

10) Present the rights conferred on the consumer by law as constituting a characteristic specific to the proposal made by the professional.

11) Use editorial content in the media to promote a product, when the professional has financed it himself, without clearly indicating it in the content or using images or sounds clearly identifiable by the consumer (infomercial). This provision is without prejudice to Directive 89/552 / EEC [1].

12) Make factually inaccurate statements regarding the nature and extent of the risks to which consumers are exposed in terms of their personal safety or that of their family if they do not purchase the product.

13) Promote a product similar to that of a particular manufacturer in such a way as to deliberately induce the consumer to believe that the product comes from that same manufacturer when it is not.

14) Create, operate or promote a pyramid promotion system in which a consumer pays a participation in exchange for the possibility of receiving a consideration mainly coming from the entry of other consumers into the system rather than from sale or consumption of products.

15) Declare that the professional is about to cease his activities or to establish them elsewhere when this is not the case.

16) Affirm that a product increases the chances of winning at games of chance.

17) Falsely claiming that a product is capable of curing diseases, dysfunctions or malformations.

18) Communicate factually inaccurate information on market conditions or on the possibilities of finding the product, with the aim of inducing the consumer to acquire it on terms less favorable than normal market conditions.

19) To assert in the course of a commercial practice that a contest is being held or that a prize can be won without awarding the prizes described or a reasonable equivalent.

20) Describe a product as “free”, “free of charge”, “free of charge” or the like if the consumer has to pay anything other than the inevitable costs of responding to commercial practice and taking possession or delivery of the item.

21) Include in the promotional material an invoice or similar document requesting payment which gives the consumer the impression that he has already ordered the marketed product when he has not.

22) Falsely assert or give the impression that the trader is not acting for purposes which fall within the scope of his commercial, industrial, craft or liberal activity, or falsely portray himself as a consumer.

23) Create falsely the impression that after-sales service related to a product is available in a Member State other than that in which the product is sold.

Aggressive business practices

24) Give the consumer the impression that he will not be able to leave the premises until a contract has been concluded.

25) Carry out personal visits to the consumer’s home, ignoring his request to see the trader leave the premises or not to return there, except if and to the extent that national law allows it to ensure the execution of a contractual obligation.

26) Engage in repeated and unwanted solicitations by telephone, fax, e-mail or any other means of remote communication, except if and to the extent that national law authorizes it to ensure the fulfillment of a contractual obligation . This provision is without prejudice to Article 10 of Directive 97/7 / EC, and Directives 95/46 / EC [2] and 2002/58 / EC.

27) Oblige a consumer who wishes to request compensation under an insurance policy to produce documents which cannot reasonably be considered relevant to establish the validity of the request or to systematically refrain from responding to relevant correspondence, with the aim of dissuading this consumer from exercising his contractual rights.

28) In an advertisement, directly enticing children to buy or persuade their parents or other adults to buy them the product being advertised. This provision is without prejudice to Article 16 of Directive 89/552 / EEC on television broadcasting.

29) Require immediate or deferred payment for products supplied by the trader without the consumer having requested them, or require their return or their conservation, except in the case of a substitute product supplied in accordance with Article 7 , paragraph 3, of Directive 97/7 / EC (supplies not requested).

30) Explicitly inform the consumer that if he does not buy the product or service, the trader’s job or livelihood will be threatened.

31) To give the false impression that the consumer has already won, will win or will gain by performing such an act a prize or other equivalent advantage, when, in fact,

– either there is no price or other equivalent advantage,

– either the accomplishment of an action in connection with the request for the price or other equivalent advantage is subordinated to the obligation for the consumer to pay money or to bear a cost.

[1] Council Directive 89/552 / EEC of 3 October 1989 on the coordination of certain laws, regulations and administrative provisions of the Member States relating to the pursuit of television broadcasting activities (OJ L 298 of 17.10.1989, p. 23). Directive 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, 11/23/1995, p. 31). Directive amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

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APPENDIX II

COMMUNITY PROVISIONS ESTABLISHING RULES ON 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 for certain aspects of contracts relating to the acquisition of a right of part-time use of real estate [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 establishing a 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, and 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 on the approximation of the laws, regulations and administrative provisions of the Member States in the field consumer credit [6]

Articles 3 and 4 of Directive 2002/65 / EC

Article 1, point 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 the laws, regulations and administrative provisions relating to certain undertakings for collective investment in transferable securities (UCITS) with a view to introducing regulations relating to 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 on direct life insurance [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 coordinating the laws, regulations and administrative provisions relating to direct insurance other than life insurance [11] (third directive “non-life insurance “)

Articles 5, 7 and 8 of Directive 2003/71 / EC of the European Parliament and of the Council of 4 November 2003 concerning the prospectus to be published in the event of a public offering of securities or with a view to the admission of securities to negotiation [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.

[8] OJ L 9, 15.1.2003, p. 3.

[9] OJ L 345, 19.12.2002, p. 1. Directive 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).

[12] OJ L 345, 31.12.2003, p. 64.

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