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Directive 2005/29/EC of the European Parliament and of the CouncilShow full title
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 and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the 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)
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CHAPTER 4FINAL PROVISIONS
Article 11Enforcement
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 12Courts and administrative authorities: substantiation of claims
Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings provided for in Article 11:
(a)
to require the trader to furnish evidence as to the accuracy of factual claims 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 on the basis of the circumstances of the particular case;
and
(b)
to consider factual claims as inaccurate if the evidence demanded in accordance with (a) is not furnished or is deemed insufficient by the court or administrative authority.
Article 13Penalties
Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. These penalties must be effective, proportionate and dissuasive.
Article 14Amendments to Directive 84/450/EEC
Directive 84/450/EEC is hereby amended as follows:
1.
Article 1 shall be replaced by the following:
‘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(1);
(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.’
Article 15Amendments to Directives 97/7/EC and 2002/65/EC
1.
Article 9 of Directive 97/7/EC shall be replaced by the following:
‘Article 9Inertia selling
Given the prohibition of inertia selling practices laid down in Directive 2005/29/EC of 11 May 2005of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market(2), Member States shall take the measures necessary to exempt the consumer from the provision of any consideration in cases of unsolicited supply, the absence of a response not constituting consent.’;
2.
Article 9 of Directive 2002/65/EC shall be replaced by the following:
‘Article 9
Given the prohibition of inertia selling practices laid down in Directive 2005/29/EC of 11 May 2005 of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market(3) and without prejudice to the provisions of Member States' legislation on the tacit renewal of distance contracts, when such rules permit tacit renewal, Member States shall take measures to exempt the consumer from any obligation in the event of unsolicited supplies, the absence of a reply not constituting consent.’
Article 16Amendments to Directive 98/27/EC and Regulation (EC) No 2006/2004
1.
In the Annex to Directive 98/27/EC, point 1 shall be replaced by the following:
‘1.
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 (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 national authorities responsible for the enforcement of the consumer protection law (the Regulation on consumer protection cooperation)(4) the following point shall be added:
‘16.
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 (OJ L 149, 11.6.2005, p. 22).’
Article 17Information
Member States shall take appropriate measures to inform consumers of the national law transposing this Directive and shall, where appropriate, encourage traders and code owners to inform consumers of their codes of conduct.
Article 18Review
1.By 12 June 2011 the Commission shall submit to the European Parliament and the Council a comprehensive report on the application of this Directive, in particular of Articles 3(9) and 4 and Annex I, on the scope for further harmonisation and simplification of Community law relating to consumer protection, and, having regard to Article 3(5), on any measures that need to be taken at Community level to ensure that appropriate levels of consumer protection are maintained. The report shall be accompanied, if necessary, by a proposal to revise this Directive or other relevant parts of Community law.
2.The European Parliament and the Council shall endeavour to act, in accordance with the Treaty, within two years of the presentation by the Commission of any proposal submitted under paragraph 1.
Article 19Transposition
Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 12 June 2007. They shall forthwith inform the Commission thereof and inform the Commission of any subsequent amendments without delay.
They shall apply those measures by 12 December 2007. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 20Entry into force
This Directive shall enter into force on the day following its publication in the Official Journal of the European Union.
Article 21Addressees
This Directive is addressed to the Member States.
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