European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

As the first provision adopted regarding misleading advertising, Directive No 84/450  has been amended on many occasions over time. In particular, Directive No 97/55  included comparative advertising, which is now governed by Directive No 2006/114. In order to clarify certain legal concepts and to approximate the laws in the field, the European institutions adopted Directive No 2005/29  on unfair  …

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As the first provision adopted regarding misleading advertising, Directive No 84/450  has been amended on many occasions over time. In particular, Directive No 97/55  included comparative advertising, which is now governed by Directive No 2006/114. In order to clarify certain legal concepts and to approximate the laws in the field, the European institutions adopted Directive No 2005/29  on unfair commercial practices, including misleading advertising, which directly harm consumer's economic interests and thereby indirectly harm the economic interests of competitors. By limiting the scope of application of Directive No 84/450 to traders (Article 14) and only referring to consumers (Article 1), it has given rise to a dual system for advertising. Directive No 2006/114 , which codifies and substitutes for Directive No 84/450 by repealing it as from 12 December 2007, brings a last contribution to the device and lays down the duality. 

Council Directive No 84/450 of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, OJ L 250 of 19 September 1984, 17. 

Directive No 97/55/EC of 6 October 1997 amending Directive No 84/450/EEC concerning misleading advertising so as to include comparative advertising, OJ L 290 of 23 October 1997, 18.

Directive No 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices, OJ L 149 of 11 June 2005, 22, transposed under French law by the laws No 2008-03 of 3 January 2008 for the development of competition in favor of consumers and 2008-776 of 4 August 2008, referred to as law on modernization of the economy.

Directive No 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising, OJ L 376 of 27 December 2006, 21. 

Unlike Directive No 2005/29, Directive No 2006/114 carries out minimum harmonization of the laws of the Member States (Article 8(1)), which remain free from retaining or adopting stricter provisions, provided that they do not extend to comparative advertising in respect of the form and content of the comparison, without it being required to distinguish between the different elements of comparison . That choice may be explained by its scope of application limited to traders. In effect, it appears from Article 1 that the purpose of Directive No 2006/114 is to protect traders against misleading advertising and the unfair consequences thereof, as defined in Article 2 as “any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and anyone acting in the name of or on behalf of a trader”. Directive No 2006/114 refers to misleading advertising and unlawful comparative advertising as two independent infringements and to the effect that, in order to prohibit and penalize misleading advertising, it is not necessary that the latter at the same time should constitute unlawful comparative advertising .

The concept of advertising has the same definition as under the 1984 directive and includes “the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations” (Article 2(a)). According to the Court of Justice the concept also covers the use of a domain name and the use of metatags in a website's metadata whose purpose is to promote the supply of specific goods or services and to suggest to potential consumers that they will find, under that name, a website relating to those goods or services, but does not cover registration of a domain name, which is a purely formal act . Likewise, the concept of misleading advertising still covers “any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behavior or which, for those reasons, injures or is likely to injure a competitor” (Article 2(b)). 

Article 3 of the directive draws up a non-exhaustive list of information likely to determine whether advertising is misleading, such as the characteristics of goods or services (Article 3(a)) , the price or the manner in which it is calculated, and the conditions on which the goods are supplied or the services provided (Article 3(b)), the nature, attributes and rights of the advertiser (Article 3(c)) .

Article 5(1) of the directive requires that persons or organizations having a legitimate interest in bringing proceedings may either take legal action or bring such advertising before an administrative authority competent to decide on complaints or to initiate appropriate legal proceedings. The courts or the administrative authorities must be able to order or obtain the cessation of published misleading advertising or prohibit it before it is published, without establishing a prior supervision of advertising . In order to facilitate proceedings against offences, the directive provides that the courts or administrative authorities must have the possibility to require the advertiser to furnish evidence as to the accuracy of factual claims (Article 7).

Case C-44/01 Pippig Augenoptik [2003] ECR I-3095, LawLex200900000827JBJ.

Case C-52/13 Posteshop SpA, Judgment of 13 March 2014, LawLex201400001654JBJ.

Case C-657/11 Belgian Electronic Sporting Technilogy NV, Judgment of 11 July 2013,  LawLex201300001131JBJ.

The characteristics are, inter alia, their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services.

This covers his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions.

European Business Law

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Les notions juridiques connexes

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