Fabian Demicoli

EU Commission protecting businesses against misleading advertisement

The Review of Directive 2006/114/EC concerning misleading and
comparative advertising (MCAD), which has been published last Tuesday. The Communication provides an overview of how the MCAD is
currently implemented in the Member States, identifies problems in how it is
applied and outlines plans to revise it in the future.

In October 2011 the Commission launched a consultation. In
general, stakeholders supported legislative action.

There was a strong call by other stakeholders for increased
protection for small companies and independent professionals against misleading
marketing practices. According to the Commission, there is a virtual consensus
that a cooperation procedure needs to be developed for cross-border cases of
misleading advertising, as the majority stated that existing enforcement
procedures are not effective.

Moreover, there was similarly strong support for an EU-wide
instrument to protect businesses against the most harmful misleading marketing
practices.  The consultation results show
that almost no Member States have so far taken cross-border action regarding
misleading advertising. Several Member States consider that this is the result
of a lack of a structured cooperation system and the weakness of the MCAD,
which contains only general clauses for assessing whether a commercial
communication is misleading.

Next steps European Commission

Non-legislative action:

Set up, as from now,
an ad hoc network of authorities to step up enforcement of the MCAD and share



Legislative action: revision of the Directive in order to:

Clarify its scope by
introducing a clearer definition of misleading marketing practices;

Introduce a
black-list of the most harmful misleading marketing practices;

Introduce effective,
proportionate and dissuasive penalties for infringements of the national
provisions adopted in application of the Directive;

Clarify certain
aspects of comparative advertising based on the jurisprudence of the Court of



In the context of the legislative revision, the European
Commission intends to:

Create an enforcement
cooperation procedure (enforcement network) grouping national enforcement
authorities in charge of the legislation protecting businesses to cooperate in
cases of cross-border misleading marketing practices;

Introduce mutual
assistance obligations for the Member States entailing the explicit possibility
of requesting enforcement measures in cross-border situations;

Introduce provisions
that will require Member States to designate an enforcement authority in the
area of business-to-business marketing.

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