ABSTRACT
THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and
in particular Article 100 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament, Having regard to the opinion of the Economic and Social Committee,
Whereas the laws against misleading advertising now in force in the Member States differ widely, whereas, since advertising reaches beyond the frontiers of individual Member States, it has a direct effect on the establishment and the functioning of the common market;
Whereas misleading advertising can lead to distortion of competition within the common market;
Whereas advertising, whether or nor it induces a contract, affects the economic welfare of consumers;
Whereas misleading advertising may cause a consumer to take decisions prejudicial to him when acquiring goods or other property, or using services, and the differences between the laws of the Member States not only lead, in many cases, to inadequate levels of consumer protection, but also hinder the execution of advertising campaigns beyond national boundaries and thus affect the free circulation of goods and provision of services;
Whereas the second programme of the European Economic Community for a consumer protection and information policy provides for appropriate action for the protection of consumers against misleading and unfair advertising;
Whereas it is in the interest of the public in general, as well as that of consumers and all those who, in competition with one another, carry on a trade, business, craft or profession, in the common market, to harmonise in the first instance national provisions against misleading advertising and that, at a second stage, unfair advertising and, as far as necessary, comparative advertising should be dealt with, on the basis of appropriate Commission proposals;
Whereas minimum and objective criteria for determining whether advertising is misleading should be established for this purpose;
Whereas the laws to be adopted by Member States against misleading advertising must be adequate and effective;
Whereas persons or organisations regarded under national law as having a legitimate interest in the matter must have facilities for initiating proceedings against misleading advertising, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings;
Whereas it should be for each Member State to decide whether to enable the court or administrative authorities to require prior recourse to other established means of dealing with the complaint;
Whereas the courts or administrative authorities must have powers enabling them to order or obtain the cessation of misleading advertising;
Whereas in certain cases it may be desirable to prohibit misleading advertising even before it is published; whereas. however, this in no way implies that Member States are under an obligation to introduce rules requiring the systematic prior vetting of advertising;
Whereas provision should be made for accelerated procedures under which measures with interim or definitive effect can be taken;
Whereas it may be desirable to order the publication of decisions made by courts or administrative authorities or of corrective statements in order to eliminate any continuing effects of misleading advertising;
Whereas administrative authorities must be impartial and the exercise of their powers must be subject to judicial review;
Whereas the voluntary control exercised by self-regulatory bodies to eliminate misleading advertising may avoid recourse to administrative or judicial action and ought therefore to be encouraged;
Whereas the advertiser should be able to prove, by appropriate means, the material accuracy of the factual claims he makes in his advertising and may in appropriate cases be required to do so by the court or administrative authority;
Whereas this Directive must not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection of consumers, persons carrying on a trade, business, craft or profession, and the general public,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The purpose of this Directive is to protect consumers, persons carrying on a trade or business or practising a craft or profession and the interests of the public in general against misleading advertising and the unfair consequences thereof.
