EUROPA

SUMMARY

This Directive repeals and codifies (i.e. consolidates) Directive 84/450/EEC and all the amendments to it in a single legal act.

Its aim is to control misleading advertising in the interests of consumers, competitors and the general public. In addition, it also lays down the conditions under which comparative advertising is permitted.

Misleading advertising

Misleading advertising is advertising which, potentially or actually, misleads or affects the judgment of the consumer or which, for these reasons, is detrimental to a competitor.

In order to determine whether advertising is misleading in nature, the following factors are taken into account:

• the characteristics of the goods or services;
• the price;
• the conditions governing the supply of the goods or the provision of services;
• the nature, qualities and rights of the advertiser.

Comparative advertising

“Comparative advertising” is defined as any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.

There is a need to establish criteria to determine whether a comparative advertisement is permitted since comparative advertising, when it is not misleading, can be a legitimate means of informing consumers of what is in their interest.

Comparative advertising is permitted if the following conditions are met:

• it is not misleading;
• it compares goods or services meeting the same needs or intended for the same purpose;
• it objectively compares one or more material, relevant, verifiable and representative features of those goods or services, which may include price;
• it does not create confusion in the market place between the advertiser and a competitor;
• it does not discredit or denigrate the trade marks, trade names or other distinguishing signs of a competitor;
• for products with designation of origin, it relates to products with the same designation;
• it does not take unfair advantage of the trademark or other distinguishing sign of a competitor;
• it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.
  

Remedy

In order to combat misleading advertising and illicit comparative advertising, the Member States will ensure that those persons or organisations with a legitimate interest may:

• bring a court action against such advertising;
• bring such advertising before a competent administrative body to rule on the complaints or to institute the appropriate legal proceedings.
  

In this context, the Member States will give the courts or administrative bodies powers authorising them to:

• order the withdrawal of misleading advertising or illicit comparative advertising, or institute the appropriate proceedings to that end;
• prohibit misleading advertising or illicit comparative advertising whose publication is imminent or institute the appropriate proceedings to that end, even without proof of actual loss or damage or of intentional negligence on the part of the advertiser.
  

These measures may be the subject of an accelerated procedure with provisional or final effect.

The Member States may authorise their courts or administrative bodies to demand publication of:

• the decision to withdraw the misleading advertising or illicit comparative advertising;
• a notice of amendment.
  

Where these powers are exercised exclusively by an administrative authority, there must be provision for legal means of redress against any improper or unreasonable exercise of the administrative authority’s powers.

The Directive does not exclude voluntary control of misleading or comparative advertising by self-regulatory bodies if such means of redress are provided for in addition to the court or administrative proceedings.

The Member States will give the courts or administrative bodies powers enabling them, in civil or administrative proceedings, to:

• demand, if necessary, that the advertiser provide proof of the material accuracy of the facts contained in the advertising;
• consider facts to be inaccurate if the proof demanded is lacking or insufficient.