24.2.2010   

EN

Official Journal of the European Union

CE 46/26

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having regard to the Treaty establishing the European Community, and in particular the provisions thereof establishing the internal market and guaranteeing undertakings the freedom to provide services in other Member States,

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having regard to 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) (‘the UCP Directive’),

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having regard to Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (2) (‘the MCA Directive’),

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having regard to Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising (3),

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having regard to Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (4),

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having regard 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 consumer protection laws (the Regulation on consumer protection cooperation) (5),

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having regard to Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests (6), and to the report from the Commission of 18 November 2008 concerning its application (COM(2008)0756),

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having regard to the Commission's Green Paper of 27 November 2008 on consumer collective redress (COM(2008)0794),

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having regard to the Communication from the Commission of 13 March 2007 on the EU Consumer Policy strategy 2007-2013 (COM(2007)0099),

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having regard to the more than 400 petitions on misleading directory companies from 24 Member States and 19 third countries received by its Committee on Petitions,

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having regard to its resolution of 16 December 2008 on misleading directory companies (7),

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having regard to the Interinstitutional Agreement on better law-making (8),

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having regard to Rule 45 of its Rules of Procedure,

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having regard to the report of the Committee on the Internal Market and Consumer Protection (A6-0514/2008),

A.

whereas the Commission's EU Consumer Policy strategy 2007-2013 aims at a ‘better monitoring of consumer markets and national consumer policies’ and at achieving a ‘timely and uniform transposition of the unfair commercial practices Directive’ in particular,

B.

whereas the UCP Directive embodies a new approach in the field of EU consumer law in providing for maximum harmonisation for the protection of consumers against unfair commercial practices,

C.

whereas the MCA Directive codifies Directive 84/450/EEC, and in particular the amendments thereto introduced by Directive 97/55/EC, and narrows its scope to business-to-business (B2B) transactions,

D.

whereas the scope of the UCP Directive is limited to transactions between businesses and consumers and does not cover all commercial practices, but only those which can be considered as unfair; whereas it is limited to commercial practices which are capable of harming the economic interests of consumers, and adjustments of national legislation protecting businesses against the unfair commercial practices of other businesses are not required in its framework,

E.

whereas three Member States have not notified the measures adopted to transpose the UCP Directive to the Commission, namely Germany, Spain and Luxembourg; whereas three requests for a preliminary ruling have been referred to the Court of Justice of the European Communities (ECJ) as regards the compatibility of national measures with the UCP Directive; whereas the Commission is of the opinion that inadequate transposition has been detected in some Member States,

F.

whereas the UCP and MCA Directives leave Member States considerable discretion as regards the remedies and penalties for infringement of their provisions,

G.

whereas there is a lack of effective legal remedies for infringement of the MCA Directive, as well as a lack of enforcement of that Directive, as is demonstrated, inter alia, by directory companies engaging in misleading practices,

1.

Stresses the importance of the UCP and MCA Directives in making consumers and traders more confident in engaging in cross-border transactions and in ensuring greater legal certainty for businesses in relation to the admissibility of different commercial practices and advertising in the internal market;

2.

Highlights the UCP Directive as landmark legislation in the area of EU consumer law, the transposition, implementation and enforcement of which will be a crucial source for the future development of EU consumer law and for the full development of the potential of the internal market, the development of cross-border trade and e-commerce;

3.

Strongly believes that proper transposition, implementation and enforcement of the UCP and MCA Directives is crucial in order to achieve the aims of those Directives, particularly given the differences in the enforcement systems and implementation techniques of the Member States, the complexity of some of the legal concepts contained in the Directives, multiple and extensive existing national rules regulating unfair commercial practices and advertising and the broad scope of application of the Directives;

4.

Calls on the Commission, with reference to Recital 8 to the UCP Directive, to investigate the need to protect small and medium-sized undertakings against aggressive business practices and, if appropriate, to initiate the requisite follow-up measures;

5.

Welcomes the Commission's efforts to assist Member States in transposing the UCP and MCA Directives;

6.

Notes that Article 3a(2) of Directive 84/450/EEC, as amended by Directive 97/55/EC, referring to a ‘comparison referring to a special offer’, was deleted and appears neither in the UCP Directive nor in the MCA Directive; regrets that there is confusion surrounding the consequences of this deletion for business-to-consumer transactions, manifested, in particular, by the divergent approaches of the Member States to the maintenance in national law following the adoption of the UCP Directive of already-existing provisions implementing Article 3a(2) of Directive 84/450/EEC as amended by Directive 97/55/EC; calls on the Member States with the assistance of the Commission to investigate this and to take possible follow-up action;

7.

Considers that the Commission should either submit a proposal for an amendment to the MCA Directive to include a ‘black list’ of practices that are under all circumstances to be considered misleading, or extend the scope of the UCP Directive to cover B2B contracts with specific regard to point 21 of Annex I thereto; requests the Commission to report by December 2009 on the measures taken;

8.

Observes that several Member States have disaggregated the ‘black list’ contained in Annex I to the UCP Directive in transposing and implementing it in their legal systems; considers that splitting-up the ‘black list’ in different pieces of national legislation creates confusion for undertakings and might lead to distortions in the application of the UCP Directive; asks the Commission to work with Member States in adapting their national legislation so that ‘black lists’ are visible and useful for consumers to the greatest extent possible;

9.

Urges Member States to screen their legal systems in order to avoid possible overlaps between rules adopted in transposition of the UCP and the MCA Directives and already-existing national provisions, and thus ensure greater clarity for consumers and businesses regarding the transposition process;

10.

Calls on the Member States to focus their efforts on the proper transposition, implementation and enforcement of the UCP and MCA Directives and to ensure that all relevant national court judgments and ECJ rulings are respected;

11.

Considers that, in cross-border transactions, consumers and businesses are hampered by incorrect or delayed transposition of directives by Member States;

12.

Notes that some Member States have provided that only certain regulatory bodies may enforce national rules adopted in implementation of the UCP Directive and have not made provision for a direct right of redress for consumers, who thus are not entitled to bring claims for damages resulting from unfair commercial practices; calls on Member States which have not already done so to consider the necessity of giving consumers a direct right of redress in order to ensure that they are sufficiently protected against unfair commercial practices;

13.

Welcomes the results of the Commission's EU Airlines Sweep and EU Ringtones Sweep as a first step towards better monitoring of the implementation and enforcement of internal market legislation; emphasises the need to carry out extended checks in this respect at regular intervals; calls on the Commission, in cooperation with the Consumer Protection Cooperation Network, to collect similar data on the implementation of internal market legislation in other key sectors of the internal market;

14.

Encourages the Commission to develop more efficient implementation monitoring tools, such as sweeps, in such a way that the enforcement of consumer protection law can be improved; asks the Commission to consider the feasibility of integrating sweeps into the Consumer Scoreboard monitoring mechanisms;

15.

Calls on all Member States to cooperate fully with the Commission in conducting and following up on Commission sweeps;

16.

Highlights the importance of reasonable, timely and accurate data and information for the adequate monitoring of consumer goods markets; notes the key role of business and consumer organizations in providing such data;

17.

Stresses the importance of cross-border enforcement for the functioning of the internal market; calls on the Commission to further develop the use of the Consumer Protection Cooperation Network in such a way that cross-border law enforcement can be improved; underlines the need to further raise awareness of the European Consumer Centres Network;

18.

Calls on the Member States to devote adequate personnel and financial resources to cross-border enforcement;

19.

Calls on the Member States and national judicial authorities to reinforce cross-border cooperation regarding misleading database services;

20.

Welcomes the Commission's initiative to establish a publicly accessible database of national measures adopted in transposition of the UCP Directive, jurisprudence thereon and other relevant material; calls on the Commission to include in this database expert monitoring reports which, on the basis of cases documented in the database, formulate specific recommendations for action to improve enforcement of the law; calls on the Commission furthermore to use this database to set up a ‘single point of access’ website where both undertakings and consumers can retrieve information on the legislation in force in the Member States;

21.

Calls on the Commission and the Member States to organise information campaigns to heighten consumers' awareness of their rights, providing them with greater protection against unfair commercial practices and misleading comparative advertising;

22.

Points out that the monitoring of transposition, implementation and enforcement is a resource-intensive exercise; considers, therefore, that the Commission should be given appropriate human resources to police implementation more effectively;

23.

Calls on the Member States to provide sufficient guidance for companies at national level; highlights as a best practice ‘Consumer Protection from Unfair Trading Regulations: a basic guide for business’ published by the UK Department for Business, Enterprise & Regulatory Reform in association with the UK Office of Fair Trading;

24.

Insists that the Commission submit on schedule, by 12 June 2011, a comprehensive implementation report pursuant to Article 18 of the UCP Directive which incorporates experience gained from the MCA Directive;

25.

Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.