6. We consider that the
following raises questions of political importance, but make no
recommendation for its further consideration:-
DEPARTMENT OF TRADE AND
INDUSTRY
(17802)
12955/96
COM(96)700
| Commission Opinion on European Parliament amendments to Common Position on draft Directive amending Directive 84/450/EEC concerning misleading advertising, so as to include comparative advertising.
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| Legal base:
| Article 100a; co-decision; qualified majority voting.
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Introduction
6.1 The previous Committee
considered the original version of this proposal in October 1991[12].
We considered an amended version on 15 June 1994 and 29 March
1995,[13]
and recommended it for debate in European Standing Committee B.
The debate took place on 24 October 1995[14].
A Common Position was agreed on 19 March 1996 and on 23 October
the EP adopted its Opinion.
The Commission's Opinion
6.2 Of the 16 amendments
proposed by the European Parliament (EP), eight have been accepted
by the Commission. In his Explanatory Memorandum (dated 11 February),
the Parliamentary Under-Secretary of State (Mr John Taylor) comments
on these amendments. The most significant are the following,
on which we have combined his comments with a description of the
amendment proposed:
6.3 These amendments
introduce slightly different wording about features to be compared
and may be due to variations in translation which can be resolved
by jurist-linguists. It has been accepted by the Commission but
rejected by the UK on the grounds that, by referring to "essential"
features, rather than "relevant" as in the Common Position
text, the amendment introduces a greater restriction. There is
no consensus among the Member States.
6.4 Deletes Recital 10
of the Common Position which reads:
"Whereas the
conditions of comparative advertising should be cumulative and
respected in their entirety; whereas this shall not prevent Member
States from defining modalities of implementation for each of
the conditions, in order to find the appropriate solution in each
case."
6.5 This has been accepted
by the Commission, but rejected by some Member States, who attach
importance to this recital and have connected it with statements
made by their Ministers in the Council Minutes. The UK position
is flexible.
6.6 This adds a new provision
allowing self-regulating professions to continue with their existing
rules on the use of comparisons. It is accepted by the Commission
and strongly supported by the UK. Most other Member States are
still considering their position and want to do so in the light
of the Council Legal Services opinion which has been requested.
A few Member States have so far rejected these amendments.
6.7 This amends a provision
relating to misleading advertising in the parent Directive, replacing
the words for the control of misleading advertising with
the words to combat. It is accepted by the Commission,
but rejected by the UK, principally on the grounds that this Directive
is intended to deal only with provisions on comparative advertising;
the parent Directive is not for re-negotiation. The Government
also has difficulties of substance with the proposed change of
wording, but says that these need not be debated if the principal
objection is accepted. Some other Member States also object on
the grounds of principle, although few have difficulty with the
substance.
6.8 On the impact of
the proposed legislation on UK law, the Minister comments:
"Under UK law
there is no general prohibition on comparative advertising. It
is subject to a number of controls as well as to the provisions
of more general legislation such as the Trade Descriptions Act
1968. Use of a registered trade mark in comparative advertisements
is allowed under section 10(6) of the Trade Marks Act 1994 provided
it does not take unfair advantage of and is not detrimental to
the distinctive character or repute of a competitor's trade mark.
This is fully in line with Article 3a.1.d. and 3a.1.g. of the
draft directive. In addition comparative advertising is controlled
by the voluntary British Code of Advertising Practice administered
by the Advertising Standards Authority."
Conclusion
6.9 The proposed amendments
do not seem likely to give rise to particular concern for the
UK. On the contrary, Amendment 20 would meet points raised in
European Standing Committee B concerning the impact of the Directive
on professional bodies such as the General Medical Council.
6.10 We thank the
Minister for his comments on the amendments and ask him to inform
us as soon as possible in the usual way of the outcome of the
Conciliation. Meanwhile, we are clearing the document.
12 (13066) 7280/91; see HC 29-xxx (1990-91), paragraph 9, (16 October 1991) Back
13 (15326) 6591/94; see HC 48-xxi (1993-94), paragraph 5, (15 June 1994), and HC 70-xii (1994-95), paragraph 1 (29 March 1995). Back
14 See Official Report, European Standing Committee B, 24 October 1995. Back
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