15.2.2005 EN Official Journal of the European Union C 38 E/1 I (Information) COUNCIL COMMON POSITION (EC) No 6/2005 adopted by the Council on 15 November 2004 with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... 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) (2005/C 38 E/01) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- (3) The laws of the Member States relating to unfair PEAN UNION, commercial practices show marked differences which can generate appreciable distortions of competition and Having regard to the Treaty establishing the European Com- obstacles to the smooth functioning of the internal munity, and in particular Article 95 thereof, market. In the field of advertising, Council Directive 84/ 450/EEC of 10 September 1984 concerning misleading and comparative advertising (3) establishes minimum Having regard to the proposal from the Commission, criteria for harmonising legislation on misleading adver- tising, but does not prevent the Member States from retaining or adopting measures which provide more Having regard to the opinion of the European Economic and extensive protection for consumers. As a result, Member Social Committee (1), States' provisions on misleading advertising diverge significantly. Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), (4) These disparities cause uncertainty as to which national rules apply to unfair commercial practices harming Whereas: consumers' economic interests and create many barriers affecting business and consumers. These barriers increase (1) Article 153(1) and (3)(a) of the Treaty provides that the the cost to business of exercising internal market free- Community is to contribute to the attainment of a high doms, in particular when businesses wish to engage in level of consumer protection by the measures it adopts cross border marketing, advertising campaigns and sales pursuant to Article 95 thereof. promotions. Such barriers also make consumers uncer- tain of their rights and undermine their confidence in the internal market. (2) In accordance with Article 14(2) of the Treaty, the internal market comprises an area without internal fron- tiers in which the free movement of goods and services and freedom of establishment are ensured. The develop- (5) In the absence of uniform rules at Community level, ment of fair commercial practices within the area obstacles to the free movement of services and goods without internal frontiers is vital for the promotion of across borders or the freedom of establishment could be the development of cross-border activities. justified in the light of the case-law of the Court of Justice of the European Communities as long as they seek to protect recognised public interest objectives and (1) OJ C 108, 30.4.2004, p. 81. (2) Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004), Council Common Position of 15 November 2004 and (3) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive position of the European Parliament of (not yet published in the 97/55/EC of the European Parliament and of the Council (OJ L 290, Official Journal). 23.10.1997, p. 18). C 38 E/2 EN Official Journal of the European Union 15.2.2005 are proportionate to those objectives. In view of the (8) This Directive directly protects consumer economic Community's objectives, as set out in the provisions of interests from unfair business-to-consumer commercial the Treaty and in secondary Community law relating to practices. Thereby, it also indirectly protects legitimate freedom of movement, and in accordance with the businesses from their competitors who do not play by Commission's policy on commercial communications as the rules in this Directive and thus guarantees fair indicated in the Communication from the Commission competition in fields coordinated by it. It is understood entitled `The follow-up to the Green Paper on Commer- that there are other commercial practices which, cial Communications in the Internal Market', such obsta- although not harming consumers, may hurt competitors cles should be eliminated. These obstacles can only be and business customers. The Commission should care- eliminated by establishing uniform rules at Community fully examine the need for Community action in the level which establish a high level of consumer protection field of unfair competition beyond the remit of this and by clarifying certain legal concepts at Community Directive and, if necessary, make a legislative proposal to level to the extent necessary for the proper functioning cover these other aspects of unfair competition. of the internal market and to meet the requirement of legal certainty. (6) This Directive therefore approximates the laws of the (9) This Directive is without prejudice to individual actions Member States on unfair commercial practices, including brought by those who have been harmed by an unfair unfair advertising, which directly harm consumers' commercial practice. It is also without prejudice to Com- economic interests and thereby indirectly harm the munity and national rules on contract law, on intellec- economic interests of legitimate competitors. In line tual property rights, on the health and safety aspects of with the principle of proportionality, this Directive products, on conditions of establishment and authorisa- protects consumers from the consequences of such tion regimes, including those rules which, in conformity unfair commercial practices where they are material but with Community law, relate to gambling activities, and recognises that in some cases the impact on consumers to Community competition rules and the national provi- may be negligible. It neither covers nor affects the sions implementing them. The Member States will thus national laws on unfair commercial practices which be able to retain or introduce restrictions and prohibi- harm only competitors' economic interests or which tions of commercial practices on grounds of the protec- relate to a transaction between traders; taking full tion of the health and safety of consumers in their terri- account of the principle of subsidiarity, Member States tory wherever the trader is based, for example in relation will continue to be able to regulate such practices, in to alcohol, tobacco or pharmaceuticals. Financial services conformity with Community law, if they choose to do and immovable property, by reason of their complexity so. Nor does this Directive cover or affect the provisions and inherent serious risks, necessitate detailed require- of Directive 84/450/EEC on advertising which misleads ments, including positive obligations on traders. For this business but which is not misleading for consumers and reason, in the field of financial services and immovable on comparative advertising. Further, this Directive does property, this Directive is without prejudice to the right not affect accepted advertising and marketing practices, of Member States to go beyond its provisions to protect such as legitimate product placement, brand differentia- the economic interests of consumers. It is not appro- tion or the offering of incentives which may legitimately priate to regulate here the certification and indication of affect consumers' perceptions of products and influence the standard of fineness of articles of precious metal. their behaviour without impairing the consumer's ability to make an informed decision. (7) This Directive addresses commercial practices directly (10) It is necessary to ensure that the relationship between related to influencing consumers' transactional decisions this Directive and existing Community law is coherent, in relation to products. It does not address commercial particularly where detailed provisions on unfair commer- practices carried out primarily for other purposes, cial practices apply to specific sectors. This Directive including for example commercial communication therefore amends Directive 84/450/EEC, Directive 97/7/ aimed at investors, such as annual reports and corporate EC of the European Parliament and of the Council of 20 promotional literature. It does not address legal require- May 1997 on the protection of consumers in respect of ments related to taste and decency which vary widely distance contracts (1), Directive 98/27/EC of the Euro- among the Member States. Commercial practices such pean Parliament and of the Council of 19 May 1998 on as, for example, commercial solicitation in the streets, injunctions for the protection of consumers' interests (2) may be undesirable in Member States for cultural and Directive 2002/65/EC of the European Parliament reasons. Member States should accordingly be able to continue to ban commercial practices in their territory, in conformity with Community law, for reasons of taste (1) OJ L 144, 4.6.1997, p. 19. Directive as amended by Directive 2002/65/EC (OJ L 271, 9.10.2002, p. 16.). and decency even where such practices do not limit (2) OJ L 166, 11.6.1998, p. 51. Directive as last amended by Directive consumers' freedom of choice. 2002/65/EC. 15.2.2005 EN Official Journal of the European Union C 38 E/3 and of the Council of 23 September 2002 concerning (14) It is desirable that misleading commercial practices cover the distance marketing of consumer financial services (1). those practices, including misleading advertising, which This Directive accordingly applies only in so far as there by deceiving the consumer prevent him from making an are no specific Community law provisions regulating informed and thus efficient choice. In conformity with specific aspects of unfair commercial practices, such as the laws and practices of Member States on misleading information requirements and rules on the way the advertising, this Directive classifies misleading practices information is presented to the consumer. It provides into misleading actions and misleading omissions. In protection for consumers where there is no specific respect of omissions, this Directive sets out a limited sectoral legislation at Community level and prohibits number of key items of information which the consumer traders from creating a false impression of the nature of needs to make an informed transactional decision. Such products. This is particularly important for complex information will not have to be disclosed in all advertise- products with high levels of risk to consumers, such as ments, but only where the trader makes an invitation to certain financial services products. This Directive conse- purchase, which is a concept clearly defined in this quently complements the Community acquis, which is Directive. The full harmonisation approach adopted in applicable to commercial practices harming consumers' this Directive does not preclude the Member States from economic interests. specifying in national law the main characteristics of particular products such as, for example, collectors' items or electrical goods, the omission of which would be material when an invitation to purchase is made. It is not the intention of this Directive to reduce consumer choice by prohibiting the promotion of products which look similar to other products unless this similarity (11) The high level of convergence achieved by the approxi- confuses consumers as to the commercial origin of the mation of national provisions through this Directive product and is therefore misleading. This Directive creates a high common level of consumer protection. should be without prejudice to existing Community law This Directive establishes a single general prohibition of which expressly affords Member States the choice those unfair commercial practices distorting consumers' between several regulatory options for the protection of economic behaviour. It also sets rules on aggressive consumers in the field of commercial practices. In par- commercial practices, which are currently not regulated ticular, this Directive should be without prejudice to at Community level. Article 13(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (2). (12) Harmonisation will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory frame- work based on clearly defined legal concepts regulating all aspects of unfair commercial practices across the EU. The effect will be to eliminate the barriers stemming from the fragmentation of the rules on unfair commer- cial practices harming consumer economic interests and to enable the internal market to be achieved in this area. (15) Where Community law sets out information require- ments in relation to commercial communication, adver- tising and marketing that information is considered as material under this Directive. Member States will be able to retain or add information requirements relating to contract law and having contract law consequences where this is allowed by the minimum clauses in the (13) In order to achieve the Community's objectives through existing Community law instruments. A non-exhaustive the removal of internal market barriers, it is necessary to list of such information requirements in the acquis is replace Member States' existing, divergent general contained in Annex II. Given the full harmonisation clauses and legal principles. The single, common general introduced by this Directive only the information prohibition established by this Directive therefore covers required in Community law is considered as material for unfair commercial practices distorting consumers' the purpose of Article 7(5) thereof. Where Member economic behaviour. In order to support consumer States have introduced information requirements over confidence the general prohibition should apply equally and above what is specified in Community law, on the to unfair commercial practices which occur outside any basis of minimum clauses, the omission of that extra contractual relationship between a trader and a information will not constitute a misleading omission consumer or following the conclusion of a contract and under this Directive. By contrast Member States will be during its execution. The general prohibition is elabo- able, when allowed by the minimum clauses in Com- rated by rules on the two types of commercial practices munity law, to maintain or introduce more stringent which are by far the most common, namely misleading provisions in conformity with Community law so as to commercial practices and aggressive commercial prac- ensure a higher level of protection of consumers' indivi- tices. dual contractual rights. (1) OJ L 271, 9.10.2002, p. 16. (2) OJ L 201, 31.7.2002, p. 37. C 38 E/4 EN Official Journal of the European Union 15.2.2005 (16) The provisions on aggressive commercial practices cised by code owners at national or Community level to should cover those practices which significantly impair eliminate unfair commercial practices may avoid the the consumer's freedom of choice. Those are practices need for recourse to administrative or judicial action and using harassment, coercion, including the use of physical should therefore be encouraged. With the aim of force, and undue influence. pursuing a high level of consumer protection, consu- mers' organisations could be informed and involved in the drafting of codes of conduct. (17) It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the (21) Persons or organisations regarded under national law as full list of all such practices. These are the only commer- having a legitimate interest in the matter must have legal cial practices which can be deemed to be unfair without remedies for initiating proceedings against unfair a case-by-case assessment against the provisions of Arti- commercial practices, either before a court or before an cles 5 to 9. administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceed- ings. While it is for national law to determine the burden of proof, it is appropriate to enable courts and administrative authorities to require traders to produce evidence as to the accuracy of factual claims they have (18) It is appropriate to protect all consumers from unfair commercial practices; however the Court of Justice has made. found it necessary in adjudicating on advertising cases since the enactment of Directive 84/450/EEC to examine the effect on a notional, typical consumer. In line with the principle of proportionality, and to permit the effec- tive application of the protections contained in it, this Directive takes as a benchmark the average consumer as (22) It is necessary that Member States lay down penalties for interpreted by the Court of Justice but also contains infringements of the provisions of this Directive and provisions aimed at preventing the exploitation of they must ensure that these are enforced. The penalties consumers whose characteristics make them particularly must be effective, proportionate and dissuasive. vulnerable to unfair commercial practices. Where a commercial practice is specifically aimed at a particular group of consumers, such as children, it is desirable that the impact of the commercial practice be assessed from the perspective of the average member of that group. The average consumer test is not a statistical test. (23) Since the objectives of this Directive, namely to elimi- National courts and authorities will have to exercise nate the barriers to the functioning of the internal their own faculty of judgement, having regard to the market represented by national laws on unfair commer- case-law of the Court of Justice, to determine the typical cial practices and to provide a high common level of reaction of the average consumer in a given case. consumer protection, by approximating the laws, regula- tions and administrative provisions of the Member States on unfair commercial practices, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of (19) Where certain characteristics such as age, physical or subsidiarity as set out in Article 5 of the Treaty. In mental infirmity or credulity make consumers particu- accordance with the principle of proportionality, as set larly susceptible to a commercial practice or to the out in that Article, this Directive does not go beyond underlying product and the economic behaviour only of what is necessary in order to eliminate the internal such consumers is likely to be distorted by the practice market barriers and achieve a high common level of in a way that the trader can reasonably foresee, it is consumer protection. appropriate to ensure that they are adequately protected by assessing the practice from the perspective of the average member of that group. (24) It is appropriate to review this Directive to ensure that barriers to the internal market have been addressed and a high level of consumer protection achieved. The (20) It is appropriate to provide a role for codes of conduct, review could lead to a Commission proposal to amend which enable traders to apply the principles of this this Directive, which may include a limited extension to Directive effectively in specific economic fields. In the derogation in Article 3(5), and/or amendments to sectors where there are specific mandatory requirements other consumer protection legislation reflecting the regulating the behaviour of traders, it is appropriate that Commission's Consumer Policy Strategy commitment to these will also provide evidence as to the requirements review the existing acquis in order to achieve a high, of professional diligence in that sector. The control exer- common level of consumer protection. 15.2.2005 EN Official Journal of the European Union C 38 E/5 (25) This Directive respects the fundamental rights and revision of a code of conduct and/or for monitoring observes the principles recognised in particular by the compliance with the code by those who have undertaken Charter of Fundamental Rights of the European Union, to be bound by it; (h) `professional diligence' means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest HAVE ADOPTED THIS DIRECTIVE: market practice and/or the general principle of good faith in the trader's field of activity; CHAPTER 1 (i) `invitation to purchase' means a commercial communica- tion which indicates characteristics of the product and the GENERAL PROVISIONS price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase; Article 1 (j) `undue influence' means exploiting a position of power in Purpose relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way The purpose of this Directive is to contribute to the proper which significantly limits the consumer's ability to make an functioning of the internal market and achieve a high level of informed decision; consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers' economic interests. (k) `transactional decision' means any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in Article 2 relation to the product, whether the consumer decides to act or to refrain from acting; Definitions (l) `regulated profession' means a professional activity or a group of professional activities, access to which or the For the purposes of this Directive: pursuit of which, or one of the modes of pursuing which, is conditional, directly or indirectly, upon possession of (a) `consumer' means any natural person who, in commercial specific professional qualifications, pursuant to laws, regula- practices covered by this Directive, is acting for purposes tions or administrative provisions. which are outside his trade, business, craft or profession; (b) `trader' means any natural or legal person who, in commer- cial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession Article 3 and anyone acting in the name of or on behalf of a trader; (c) `product' means any good or service including immovable property, rights and obligations; Scope (d) `business-to-consumer commercial practices' (hereinafter also referred to as `commercial practices') means any act, 1. This Directive shall apply to unfair business-to-consumer omission, course of conduct or representation, commercial commercial practices, as laid down in Article 5, before, during communication including advertising and marketing, by a and after a commercial transaction in relation to a product. trader, directly connected with the promotion, sale or supply of a product to consumers; 2. This Directive is without prejudice to contract law and, in (e) `to materially distort the economic behaviour of consumers' particular, to the rules on the validity, formation or effect of a means using a commercial practice to appreciably impair contract. the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional deci- sion that he would not have taken otherwise; 3. This Directive is without prejudice to Community or (f) `code of conduct' means an agreement or set of rules not national rules relating to the health and safety aspects of imposed by law, regulation or administrative provision of a products. Member State which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors; 4. In the case of conflict between the provisions of this Directive and other Community rules regulating specific (g) `code owner' means any entity, including a trader or group aspects of unfair commercial practices, the latter shall prevail of traders, which is responsible for the formulation and and apply to those specific aspects. C 38 E/6 EN Official Journal of the European Union 15.2.2005 5. For a period of six years from (*), Member States shall be (b) it materially distorts or is likely to materially distort the able to apply national provisions within the field approximated economic behaviour with regard to the product of the by this Directive which are more restrictive or prescriptive than average consumer whom it reaches or to whom it is this Directive and which implement directives containing addressed, or of the average member of the group when a minimum harmonisation clauses. These measures must be commercial practice is directed to a particular group of essential to ensure that consumers are adequately protected consumers. against unfair commercial practices and must be proportionate to the attainment of this objective. The review referred to in Article 18 may, if considered appropriate, include a proposal to 3. Commercial practices which reach the generality of prolong this derogation for a further limited period. consumers, but are likely to materially distort the economic behaviour only of a group of consumers who are particularly vulnerable to the practice or the underlying product because of 6. Member States shall notify the Commission without delay their mental or physical infirmity, age or credulity in a way of any national provisions applied on the basis of paragraph 5. which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that 7. This Directive is without prejudice to the rules deter- group. This is without prejudice to the common and legitimate mining the jurisdiction of the courts. advertising practice of making exaggerated statements or state- ments which are not meant to be taken literally. 8. This Directive is without prejudice to any conditions of establishment or of authorisation regimes, or to the deontolo- gical codes of conduct or other specific rules governing regu- 4. In particular, commercial practices shall be unfair which: lated professions in order to uphold high standards of integrity on the part of the professional, which Member States may, in (a) are misleading as set out in Articles 6 and 7, or conformity with Community law, impose on professionals. (b) are aggressive as set out in Articles 8 and 9. 9. In relation to `financial services', as defined in Directive 2002/65/EC, and immovable property, Member States may impose requirements which are more restrictive or prescriptive 5. Annex I contains the list of those commercial practices than this Directive in the field which it approximates. which shall in all circumstances be regarded as unfair. 10. This Directive shall not apply to the application of the laws, regulations and administrative provisions of Member States relating to the certification and indication of the standard of fineness of articles of precious metal. SECTION 1 MISLEADING COMMERCIAL PRACTICES Article 4 Internal market Article 6 Member States shall neither restrict the freedom to provide services nor restrict the free movement of goods for reasons Misleading actions falling within the field approximated by this Directive. 1. A commercial practice shall be regarded as misleading if CHAPTER 2 it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is UNFAIR COMMERCIAL PRACTICES factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to Article 5 take a transactional decision that he would not have taken otherwise: Prohibition of unfair commercial practices (a) the existence or nature of the product; 1. Unfair commercial practices shall be prohibited. (b) the main characteristics of the product, such as its avail- ability, benefits, risks, execution, composition, accessories, 2. A commercial practice shall be unfair if: after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, (a) it is contrary to the requirements of professional diligence, fitness for purpose, usage, quantity, specification, geogra- and phical or commercial origin or the results to be expected from its use, or the results and material features of tests or (*) 24 months after the entry into force of this Directive. checks carried out on the product; 15.2.2005 EN Official Journal of the European Union C 38 E/7 (c) the extent of the trader's commitments, the motives for the available to consumers by other means shall be taken into commercial practice and the nature of the sales process, account in deciding whether information has been omitted. any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product; 4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already (d) the price or the manner in which the price is calculated, or apparent from the context: the existence of a specific price advantage; (a) the main characteristics of the product, to an extent appro- (e) the need for a service, part, replacement or repair; priate to the medium and the product; (f) the nature, attributes and rights of the trader or his agent, (b) the geographical address and the identity of the trader, such as his identity and assets, his qualifications, status, such as his trading name and, where applicable, the geogra- approval, affiliation or connection and ownership of indus- phical address and the identity of the trader on whose trial, commercial or intellectual property rights or his behalf he is acting; awards and distinctions; (c) the price inclusive of taxes, or where the nature of the (g) the consumer's rights or the risks he may face. product means that the price cannot reasonably be calcu- lated in advance, the manner in which the price is calcu- 2. A commercial practice shall also be regarded as lated, as well as, where appropriate, all additional freight, misleading where, in its factual context, taking account of all delivery or postal charges or, where these charges cannot its features and circumstances, it thereby causes or is likely to reasonably be calculated in advance, the fact that such addi- cause the average consumer to take a transactional decision tional charges may be payable; that he would not have taken otherwise, and it involves: (d) the arrangements for payment, delivery, performance and (a) any marketing of a product, including comparative adver- the complaint handling policy, if they depart from the tising, which creates confusion with any products, trade requirements of professional diligence; marks, trade names and other distinguishing marks of a competitor; (e) for products and transactions involving a right of with- drawal or cancellation, the existence of such a right. (b) non-compliance by the trader with commitments contained 5. Information requirements established by Community law in codes of conduct by which the trader has undertaken to in relation to commercial communication including advertising be bound, where: or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material. (i) the commitment is not aspirational but is firm and is capable of being verified, and (ii) the trader indicates in a commercial practice that he is SECTION 2 bound by the code. AGGRESSIVE COMMERCIAL PRACTICES Article 7 Article 8 Misleading omissions Aggressive commercial practices 1. A commercial practice shall be regarded as misleading A commercial practice shall be regarded as aggressive if, in its which, in its factual context, taking account of all its features factual context, taking account of all its features and circum- and circumstances and the limitations of the communication stances, by harassment, coercion, including the use of physical medium, omits material information that the average consumer force, or undue influence, it significantly impairs or is likely to needs, according to the context, to take an informed transac- significantly impair the average consumer's freedom of choice tional decision and thereby causes or is likely to cause the or conduct with regard to the product and thereby causes him average consumer to take a transactional decision that he or is likely to cause him to take a transactional decision that he would not have taken otherwise. would not have taken otherwise. 2. It shall also be regarded as a misleading omission when a trader hides or provides in an unclear, unintelligible, ambig- Article 9 uous or untimely manner such material information as referred to in paragraph 1 or fails to identify the commercial intent of Use of harassment, coercion and undue influence the commercial practice if not already apparent from the context. In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influ- 3. Where the medium used to communicate the commercial ence, account shall be taken of: practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information (a) its timing, location, nature or persistence; C 38 E/8 EN Official Journal of the European Union 15.2.2005 (b) the use of threatening or abusive language or behaviour; administrative authorities to require prior recourse to other established means of dealing with complaints, including those (c) the exploitation by the trader of any specific misfortune or referred to in Article 10. These facilities shall be available circumstance of such gravity as to impair the consumer's regardless of whether the consumers affected are in the terri- judgement, of which the trader is aware, to influence the tory of the Member State where the trader is located or in consumer's decision with regard to the product; another Member State. (d) any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise It shall be for each Member State to decide: rights under the contract, including rights to terminate a contract or to switch to another product or another trader; - whether these legal facilities may be directed separately or (e) any threat to take any action that cannot legally be taken. jointly against a number of traders from the same economic sector; and CHAPTER 3 - whether these legal facilities may be directed against a code owner where the relevant code promotes non-compliance with legal requirements. CODES OF CONDUCT 2. Under the legal provisions referred to in paragraph 1, Article 10 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 inter- Codes of conduct ests involved and in particular the public interest: This Directive does not exclude the control, which Member - to order the cessation of, or to institute appropriate legal States may encourage, of unfair commercial practices by code proceedings for an order for the cessation of, unfair owners and recourse to such bodies by the persons or organisa- commercial practices, or tions referred to in Article 11 if proceedings before such bodies are in addition to the court or administrative proceedings referred to in that Article. - if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the prac- tice, or to institute appropriate legal proceedings for an order for the prohibition of the practice, CHAPTER 4 even without proof of actual loss or damage or of intention or negligence on the part of the trader. FINAL PROVISIONS Member States shall also make provision for the measures Article 11 referred to in the first subparagraph to be taken under an accel- erated procedure: Enforcement - either with interim effect, or 1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices and for - with definitive effect, compliance with the provisions of this Directive in the interest of consumers. on the understanding that it is for each Member State to decide which of the two options to select. Such means shall include legal provisions under which persons or organisations regarded under national law as having a legiti- mate interest in combating unfair commercial practices, Furthermore, Member States may confer upon the courts or including competitors, may: administrative authorities powers enabling them, with a view to eliminating the continuing effects of unfair commercial prac- - take legal action against such unfair commercial practices; tices the cessation of which has been ordered by a final deci- and/or sion: - bring such unfair commercial practices before an adminis- trative authority competent either to decide on complaints - to require publication of that decision in full or in part and or to initiate appropriate legal proceedings. in such form as they deem adequate, It shall be for each Member State to decide which of these facil- - to require in addition the publication of a corrective state- ities shall be available and whether to enable the courts or ment. 15.2.2005 EN Official Journal of the European Union C 38 E/9 3. The administrative authorities referred to in paragraph 1 (1) Article 1 shall be replaced by the following: must: (a) be composed so as not to cast doubt on their impartiality; `Article 1 (b) have adequate powers, where they decide on complaints, to monitor and enforce the observance of their decisions effec- The purpose of this Directive is to protect traders against tively; misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative (c) normally give reasons for their decisions. advertising is permitted'; Where the powers referred to in paragraph 2 are exercised exclusively by an administrative authority, reasons for its deci- (2) In Article 2: sions shall always be given. Furthermore, in this case, provision must be made for procedures whereby improper or unreason- able exercise of its powers by the administrative authority or - Point 3 shall be replaced by the following: improper or unreasonable failure to exercise the said powers can be the subject of judicial review. `3. "trader" means any natural or legal person who is acting for purposes relating to his trade, craft, busi- ness or profession and any one acting in the name of or on behalf of a trader.' Article 12 - The following point shall be added: Courts and administrative authorities: substantiation of `4. "code owner" means any entity, including a trader claims 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 Member States shall confer upon the courts or administrative those who have undertaken to be bound by it.'. authorities powers enabling them in the civil or administrative proceedings provided for in Article 11: (3) Article 3a shall be replaced by the following: (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 `Article 3a any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case; and 1. Comparative advertising shall, as far as the compar- ison is concerned, be permitted when the following condi- (b) to consider factual claims as inaccurate if the evidence tions are met: demanded in accordance with (a) is not furnished or is deemed insufficient by the court or administrative authority. (a) it is not misleading according to Articles 2(2), 3 and 7(1)of this Directive or Articles 6 and 7 of Direc- tive 2005/.../EC (+) of the European Parliament and of the Council of...... concerning unfair business-to- Article 13 consumer commercial practices in the internal market (*); Penalties (b) it compares goods or services meeting the same needs or intended for the same purpose; 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 (c) it objectively compares one or more material, relevant, enforced. These penalties must be effective, proportionate and verifiable and representative features of those goods dissuasive. and services, which may include price; (d) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, Article 14 activities, or circumstances of a competitor; Amendments to Directive 84/450/EEC (e) for products with designation of origin, it relates in each case to products with the same designation; Directive 84/450/EEC is hereby amended as follows: (+) This Directive. C 38 E/10 EN Official Journal of the European Union 15.2.2005 (f) it does not take unfair advantage of the reputation of a Article 15 trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; Amendments to Directives 97/7/EC and 2002/65/EC (g) it does not present goods or services as imitations or (1) Article 9 of Directive 97/7/EC shall be replaced by the replicas of goods or services bearing a protected trade following: mark or trade name; (h) it does not create confusion among traders, between `Article 9 the advertiser and a competitor or between the adverti- ser's trade marks, trade names, other distinguishing Inertia selling marks, goods or services and those of a competitor. (*) OJ L ... ' Given the prohibition of inertia selling practices laid down in Directive 2005/.../EC (+) of the European Parliament and of the Council of ...... concerning unfair business-to- (4) Article 4(1) shall be replaced by the following: consumer commercial practices in the internal market (*), Member States shall take the measures necessary to exempt the consumer from the provision of any consideration in `1. Member States shall ensure that adequate and effec- cases of unsolicited supply, the absence of a response not tive means exist to combat misleading advertising and for constituting consent. compliance with the provisions on comparative advertising in the interest of traders and competitors. Such means shall (*) OJ L ... ' include legal provisions under which persons or organisa- tions regarded under national law as having a legitimate interest in combating misleading advertising or regulating (2) Article 9 of Directive 2002/65/EC shall be replaced by comparative advertising may: the following: (a) take legal action against such advertising; or `Article 9 (b) bring such advertising before an administrative Given the prohibition of inertia selling practices laid down authority competent either to decide on complaints or in Directive 2005/.../EC (+) of the European Parliament and to initiate appropriate legal proceedings. of the Council of ...... concerning unfair business-to- consumer commercial practices in the internal market (*) and without prejudice to the provisions of Member States' It shall be for each Member State to decide which of these legislation on the tacit renewal of distance contracts, when facilities shall be available and whether to enable the courts such rules permit tacit renewal, Member States shall take or administrative authorities to require prior recourse to measures to exempt the consumer from any obligation in other established means of dealing with complaints, the event of unsolicited supplies, the absence of a reply not including those referred to in Article 5. constituting consent. (*) OJ L ... ' It shall be for each Member State to decide: (a) whether these legal facilities may be directed separately Article 16 or jointly against a number of traders from the same economic sector; and Amendments to Directive 98/27/EC and Regulation (EC) No 2006/2004 (b) whether these legal facilities may be directed against a code owner where the relevant code promotes non- compliance with legal requirements.' (1) In the Annex to Directive 98/27/EC, point 1 shall be replaced by the following: (5) Article 7(1) shall be replaced by the following: `1. Directive 2005/.../EC (+) of the European Parliament and of the Council of ...... concerning unfair business-to- `1. This Directive shall not preclude Member States from consumer commercial practices in the internal market retaining or adopting provisions with a view to ensuring (OJ L...)'. more extensive protection, with regard to misleading adver- tising, for traders and competitors'. (+) This Directive. 15.2.2005 EN Official Journal of the European Union C 38 E/11 (2) In the Annex to Regulation (EC) No 2006/2004 of the 2. The European Parliament and the Council shall endeavour European Parliament and of the Council of 27 October 2004 to act, in accordance with the Treaty, within two years of the on cooperation between national authorities responsible for the presentation by the Commission of any proposal submitted enforcement of the consumer protection laws (the Regulation under paragraph 1. on consumer protection cooperation) (1) the following point shall be added: Article 19 `15. Directive 2005/..../EC (+) of the European Parliament Transposition and of the Council of........... concerning unfair business-to- Member States shall adopt and publish the laws, regulations consumer commercial practices in the internal market (OJ and administrative provisions necessary to comply with this L..., p. )'. Directive by......... (*). They shall forthwith inform the Commis- sion thereof and inform the Commission of any subsequent amendments without delay. Article 17 They shall apply those measures by.......... (**). When Member States adopt those measures, they shall contain a reference to Information this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall deter- mine how such reference is to be made. Member States shall take appropriate measures to inform the consumer of the national law transposing this Directive and shall, where appropriate, encourage traders and code owners to Article 20 inform consumers of their codes of conduct. Entry 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 18 Article 21 Review Addressees 1. The Commission shall not later than four years This Directive is addressed to the Member States. after...... (*) submit to the European Parliament and the Council a comprehensive report on the application of this Directive, in particular of Article 4 and Annex I, on the scope for further Done at Brussels,... 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 For the European Parliament For the Council that appropriate levels of consumer protection are maintained. The report shall be accompanied, if necessary, by a proposal to The President The President revise this Directive or other relevant parts of Community law. ... ... (1) OJ L 364, 9.12.2004, p. 1. (+) This Directive. (*) 24 months after the entry into force of this Directive. (**) 30 months after the entry into force of this Directive. C 38 E/12 EN Official Journal of the European Union 15.2.2005 ANNEX I COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR Misleading commercial practices (1) Claiming to be a signatory to a code of conduct when the trader is not. (2) Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation. (3) Claiming that a code of conduct has an endorsement from a public or other body which it does not have. (4) Claiming that a product has been approved, endorsed or authorised by a public or private body when it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation. (5) Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reason- able having regard to the product, the scale of advertising of the product and the price offered (bait advertising). (6) Making an invitation to purchase products at a specified price and then: (a) refusing to show the advertised item to consumers, or (b) refusing to take orders for it or deliver it within a reasonable time, or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch). (7) Falsely stating that the product will only be available for a very limited time in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice. (8) Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a trans- action in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction. (9) Stating or otherwise creating the impression that a product can legally be sold when it cannot. (10) Presenting rights given to consumers in law as a distinctive feature of the trader's offer. (11) Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1). (12) Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product. (13) Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products. (14) Claiming that the trader is about to cease trading or move premises when he is not. (15) Claiming that products are able to facilitate winning in games of chance. (16) Falsely claiming that a product is able to cure illnesses, dysfunction or malformations. (17) Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions. (18) Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent. (1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or adminis- trative action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p. 23). Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60). 15.2.2005 EN Official Journal of the European Union C 38 E/13 (19) Describing a product as `gratis', `free', `without charge' or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item. (20) Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not. Aggressive commercial practices (21) Creating the impression that the consumer cannot leave the premises until a contract is formed. (22) Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation. (23) Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circum- stances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (1) and 2002/58/EC. (24) Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reason- ably be considered relevant as to whether the claim was valid, in order to dissuade the consumer from exercising his contractual rights. (25) Including in an advertisement a direct appeal to children to persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC. (26) Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling). (27) Explicitly informing the consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy. (28) Creating the impression that the consumer has already won a prize without needing to make a purchase when in fact the opportunity to win the prize or the award of the prize are dependent on the consumer buying a product. (1) 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, 23.11.1995, p. 31). Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1). C 38 E/14 EN Official Journal of the European Union 15.2.2005 ANNEX II COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR 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 in respect of certain aspects of contracts relating to the purchase of a right to use immovable properties on a timeshare basis (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 on the 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, 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 Direc- tive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (6) Articles 3 and 4 of Directive 2002/65/EC Article 1(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 laws, regulations and administrative provisions relating to under- takings for collective investment in transferable securities (UCITS) with a view to regulating 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 concerning life assurance (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 on the coordination of laws, regulations and admin- istrative provisions relating to direct insurance other than life assurance (11) (third non-life insurance Directive) Articles 5, 7 and 8 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading (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 as 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 (OJ L 35, 11.2.2003, p. 1). (12) OJ L 345, 31.12.2003, p. 64. 15.2.2005 EN Official Journal of the European Union C 38 E/15 STATEMENT OF THE COUNCIL'S REASONS I. INTRODUCTION 1. On 24 June 2003, the Commission submitted to the Council a proposal for a Directive of the Euro- pean Parliament and of the Council, based on Article 95 of the Treaty, concerning unfair business- to-consumer practices in the Internal Market and amending Directives 84/450/EEC, 97/7/EC and 98/27/EC (the Unfair Commercial Practices Directive). 2. The European Parliament gave its opinion (1) in first reading on 20 April 2004. The Economic and Social Committee gave its opinion (2) on 29 January 2004. 3. On 15 November 2004, the Council adopted its common position in accordance with Article 251 of the Treaty. II. OBJECTIVE The purpose of the Directive is to harmonise the Member States' regulation on unfair business to consumer commercial practices which harm consumers' economic interests with a view to contributing to the proper functioning of the internal market and to achieving a high level of consumer protection. The text: - defines the conditions which determine whether a commercial practice is unfair; - contains a general prohibition of such unfair practices, elaborating on two key types of unfair prac- tices (which are either misleading or aggressive). III. ANALYSIS OF THE COMMON POSITION 1. General remarks In general, the Council has followed the European Parliament's first reading opinion and the Commission's position on such opinion. It has integrated in its common position 51 out of the 58 Amendments accepted by the Commission, either in whole or partly. It has also endorsed 4 Amend- ments (43, 64, 91 and 110) which the Commission had initially indicated it was unable to accept. The common position represents a balance of concerns and interests with the main results of: - maintaining the general prohibition of unfair commercial practices (Article 5), with Annex I containing the list of those commercial practices which shall in all circumstances be regarded as unfair; - retaining the proposed average consumer benchmark but with the inclusion of explicit provi- sions for the protection of the vulnerable consumer (notably in Article 5, paragraph 3); - deleting the country of origin clause originally proposed by the Commission; - maintaining the clause of free circulation of services or goods whereby free circulation cannot be restricted for reasons falling within the field approximated by this Directive (Article 4); (1) OJ C 104 E, 30.4.2004. (2) OJ C 108, 30.4.2004, p. 81. C 38 E/16 EN Official Journal of the European Union 15.2.2005 - temporarily allowing Member States to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which imple- ment directives containing minimum harmonisation clauses (Article 3, paragraphs 5 and 6); - clarifying the scope of the Directive notably in relation to certain professions, products or activ- ities (Article 3, paragraphs 8, 9 and 10); and - inserting a review clause (Article 18). The Commission has accepted the common position agreed by the Council. 2. European Parliament Amendments In its Plenary vote on 20 April 2004, the European Parliament adopted 94 Amendments to the proposal. The Council: (a) introduced in the common position 7 Amendments without modification as follows: Recitals: Amendment 1 (on Recital 6 - objective/scope); Amendment 5 (on Recital 10 - objective/scope); Amendment 10 (on recital 14 - codes of conduct); Articles: Amendment 19 (on Article 2, point (h) - definition of `Community level code'); Amendment 23 (on Article 2, point (l) - definition of `undue influence'); Annexes: Amendment 71 (on Annex 1, `Misleading commercial practices', point (5)). Amendment 91 (on Annex 1, `Aggressive commercial practices', point (7)). (b) introduced in the common position 48 Amendments in part and/or with drafting or other modifications as follows: Recitals: Amendment 112 (on Citation 1 adding Article 153 of the Treaty to the legal base): a new Recital 1 which refers to Article 153 has been inserted; Amendment 105 (on Recital 5 - objective/scope): Amendment incorporated through the new wording of Recital 6 which clarifies the relationship with national rules on areas outside the scope of the Directive; Amendment 6 (on Recital 11 - `look alike products' and `passing off'): the purpose of the Amendment has been taken over in the new wording of Recital 14; Amendment 7 (on Recital 11a (new) - status of Annex I on `Misleading commercial practices'): the effect sought by the Amendment has been taken over in the new wording of Recital 17; 15.2.2005 EN Official Journal of the European Union C 38 E/17 Amendment 8 (on Recital 13 - vulnerable consumers): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 19 which clarifies the concept of vulnerable consumer; Amendment 106 (on Recital 13a (new) - vulnerable consumers): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 19 (see also above on Amendment 8); Amendment 9 (on Recital 14 - codes of conduct): the purpose of the Amendment has been taken over in the new wording of Recital 20 with some redrafting, taking account of the existing legislation; Articles: Amendment 107 (on Article 2, point (b) - definition of `average consumer'): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 18; Amendment 13 (on Article 2, point (ba) (new) - definition of `particular group of customers'): the preoccupation of the Amendment has been taken into consideration in the new wording of Article 5, paragraph 3 (see also above on Amendment 8); Amendment 14 (on Article 2, point (c) - definition of `seller or supplier'): the purpose of the Amendment has been taken over in the new wording of point (b), taking into account that the present Directive does not regulate liability; Amendment 17 (on Article 2, point (g) - definition of `code of conduct'): the preoccupation of the Amendment has been taken into consideration in the new wording of point (f); Amendment 104 (on Article 2, point (g) - definition of `code of conduct'): the purpose of the Amendment has been taken over in the new wording of Recital 20; Amendments 21 and 108 (on Article 2, point (j) - definition of `professional diligence'): the concepts contained in those Amendments have been incorporated in the new wording of point (h); Amendment 24 (on Article 2, point (la) (new) - definition of `firm commitment'): the purpose of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b); Amendment 25 (on Article 3, paragraph 1 - scope): the first part of the Amendment has been taken over in this paragraph whilst the second part is already captured in Article 2, point (k); Amendment 27 (on Article 3, paragraph 6a (new) - scope): the purpose of the Amendment has been taken over in Article 3, paragraphs 8, 9 and 10; Amendment 28 (on Article 4, paragraph 2a (new) - scope): the preoccupation of the Amend- ment has been taken into consideration in the new wording of Recital 9; C 38 E/18 EN Official Journal of the European Union 15.2.2005 Amendment 109 (on Article 4, paragraphs 2b and 2c (new) - temporary derogation): the effect sought by the Amendment has been taken over in Article 3, paragraphs 5 and 6, with some redrafting; Amendment 29 (on Article 5, paragraph 2, indent 1 - good faith): the purpose of the Amend- ment has been taken over in the new wording of Article 2, point (h) (see also Amendment 108); Amendment 110 (on Article 5, paragraph 2, indent 2 - vulnerable consumer): the preoccupa- tion of the Amendment has been taken into consideration in the new wording of Article 5, paragraph 3 (see also above on Amendment 8); Amendment 33 (on Article 5, paragraph 4 - status of Annex I): the purpose of the Amendment has been taken over in the new wording of the paragraph as well as in Recital 17; Amendment 34 (on Article 6, paragraph 1, introductory part - concept of `misleading commer- cial practice'): the purpose of the Amendment has been taken over in Article 2, point (k); Amendment 37 (on Article 6, paragraph 1, point (f) - concept of `misleading commercial prac- tice'): the concern motivating the Amendment has been addressed by the deletion of this point; Amendment 39 (on Article 6, paragraph 2, introductory sentence - concept of `misleading commercial practice'): the purpose of the Amendment has been taken over in Article 2, point (k); Amendment 40 (on Article 6, paragraph 2, point (b), indent 3 (new) - concept of `misleading commercial practice'): the purpose of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b), indent 2; Amendments 43, 44 and 45 (on Article 7, paragraph 1 - concept of `misleading omissions'): the preoccupation of the Amendments has been taken over in the new wording of Article 7, para- graphs 1 and 3; Amendment 47 (on Article 7, paragraph 2 - concept of `misleading omissions'): the second part of the Amendment has been taken over in the new wording of the paragraph whereas the first part is covered by Article 7, paragraphs 1 and 3; Amendments 111 and 59 (on Article 9, point (c) - exploitation of specific misfortunes or circumstances): the effect sought by the Amendment has been taken over in the new wording of the point; Amendment 103 (on Article 10 - enforcement of codes of conduct): the purpose of the Amend- ment has been taken over in the new wording of the Article; Amendment 61 (on Article 10, paragraph 1 (new) - content and drafting of codes of conduct): the purpose of the Amendment has been taken over in the new wording of Recital 20 (see also Amendment 9); Amendments 64 and 65 (on Article 11, paragraph 1, subparagraph 4 - non liability of a code owner): the concern underlying the Amendments has been addressed by the new wording of Article 11, paragraph 1, subparagraph 4, indent 2; Amendment 67 (on Article 14, paragraph 5 - non liability of a code owner): the purpose of the Amendment has been taken over in the new wording of Article 14, paragraph 4, subparagraph 2, point (b) (see Amendments 64 and 65); Amendment 68 (on Article 17 - transposition of the future directive): the effect sought by the Amendment has been taken over in the new wording of the point; 15.2.2005 EN Official Journal of the European Union C 38 E/19 Amendment 69 (on Article 17a (new) revision): the purpose of the Amendment has been taken over in Article 18, with modifications in the wording; Annexes: Amendment 99 (on Annex 1, `Misleading commercial practices', point (3)): the effect sought by the Amendment has been taken over in the wording of point (5); Amendment 73 (on Annex 1, `Misleading commercial practices', point (9)): the purpose of the Amendment has been taken over in the wording of point (12); Amendment 76 (on Annex 1, `Misleading commercial practices', point (12): the purpose of the Amendment has been taken over in the wording of new point (14); Amendment 84 (on Annex 1, `Misleading commercial practices', point (12h) (new)): the purpose of the Amendment has been taken over in the wording of new point (18), with some modifica- tions in order to clarify its application; Amendment 85 (on Annex 1, `Aggressive commercial practices', point (2)): the purpose of the Amendment has been taken over in the wording of new point (22), with some modifications in order to clarify its application; Amendment 87 (on Annex 1, `Aggressive commercial practices', point (3), subparagraph 1a (new)): the purpose of the Amendment has been taken over in the wording of new point (23), with a view to clarify its application; Amendment 88 (on Annex 1, `Aggressive commercial practices', point (4)): the purpose of the Amendment has been addressed by the deletion of this point; Amendment 90 (on Annex 1, `Aggressive commercial practices', point (6)): the purpose of the Amendment has been taken over in the wording of new point (25), with some modifications in order to clarify its application; Amendment 92 (on Annex 1, `Aggressive commercial practices', point (7)): the purpose of the Amendment has been taken over in the wording of new point (26), with some modifications in order to clarify its application; (c) did not include 39 Amendments (2, 3, 4, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55, 57, 60, 62, 63, 66, 70, 97, 72, 74, 75, 77, 78, 79, 80, 81, 82, 83, 86, 89 and 94) in the common position. With respect to Amendments 3, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55, 57, 63, 66, 70, 97, 74, 75, 77, 78, 79, 81, 82, 83, 86 and 94, the Council followed the posi- tion expressed by the Commission. In relation to Amendments 2, 4, 60, 62, 72, 80 and 89, accepted in full or in part by the Commission but not included in the common position: Recitals: Amendment 2 (on Recital 8 - objective/scope of the future directive): the drafting of the Amendment would reduce certainty about the harmonising effect of the Directive whilst the new wording of Recital 11 makes clear that the scope of the text is limited; C 38 E/20 EN Official Journal of the European Union 15.2.2005 Amendment 4 (on Recital 10 - objective/scope): the drafting of the Amendment would reduce certainty that, within the field approximated by the Directive, the Member States will not be able to keep any general prohibitions which do not conform to that in the Directive; Articles: Amendment 60 (on Article 9, point (e) - good faith): the issue of the burden of proof should be left outside the scope of the text as indicated in Recital 21 and the Amendment could not be accepted; Amendment 62 (on Article 10, paragraph 1a (new) - optional procedures): the Directive does not regulate the nature of the procedures which could be used under Article 10 so the possibili- ties referred to in the Amendment are already available; Annexes: Amendment 72 (on Annex 1, `Misleading commercial practices', point (8)): the Amendment could not be accepted as it does not define a practice which is in all circumstances unfair, which is the criterion for inclusion in the Annex; Amendment 80 (on Annex 1, `Misleading commercial practices', point (12d) (new)): the practice identified in the Amendment is difficult to distinguish in practice from a legitimate practice; Amendment 89 (on Annex 1, `Aggressive commercial practices', point (5)): the effect sought by the Amendment is unclear but the drafting could notably capture non-consumers (which are outside the scope of the Directive). 3. Other innovations introduced by the Council The other innovations introduced in the common position are: - the adjustment of several definitions (the definitions in Article 2 of `invitation to purchase' and `undue influence' are modified, a new definition of `transactional decision' is inserted and the definitions of `average consumer' and of `Community level code' are deleted); - adjustments to the criteria for misleading actions (Article 6); - the clarification of the status and content of the Annexes (several points of the Annexes are modified, new Recitals 15 and 17 on the status of the Annexes are inserted, Article 5, paragraph 5, dealing with Annex I is modified accordingly). IV. CONCLUSION The Council considers that its common position, which incorporates the Amendments mentioned in Sections III.2(a) and (b), takes good account of the opinion of the European Parliament in first reading. It represents a balanced solution which ensures both the protection of the consumer and the good functioning of the internal market as this new common framework will simplify the legislative environ- ment in which traders and consumers operate whilst guaranteeing at the same time a high level of consumer protection.