EU-Vorschriften gegen irreführende Werbung treten in Kraft[en] 

The new set of rules clarifies unfair behaviours which are often defined in different ways across EU states. With the directive in place it will be for example impossible to brand a product as ‘free’ if it involves payments by the consumers. At the moment in some EU countries it is possible to sell something as free while specifying in small print in the ad what the real economic conditions are. This practice is now illegal.

The European Commission has outlined a ‘black list’  that includes over 30 banned behaviours. Fake offers through media are particularly targeted by the directive for their ability to reach a bigger audience and for their cross-border relevance. New rules already in use in ‘old’ media are now extended to the Internet. Direct exhortations to children to persuade their parents to buy products (so-called pester-power) are now banned also on the Web, and not only on television as it has been so far.

Aggressive behaviours are also tackled by the directive. Practices exemplified by suggestions like “With the third phone call maybe a contract will be agreed” are now clearly banned across Europe.

According to the European Commission, e-commerce is set to get important advantages from the application of the directive because it creates a clear set of EU rules, thus encouraging new commercial activities.

An application of the directive has been already seen with the order issued last November by the Commission to airline companies to remove misleading information from their websites (EurActiv 15/11/07). 

The directive was agreed in May 2005 and came into force on 12 December but thirteen member states have still to implement it. Infringement procedures have already been launched against these states. They are Finland, France, Germany, Hungary, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Spain, Sweden and the United Kingdom.

Enforcement of the new legislation is left to the member states. “We say to citizens: if you see this kind of practises, you should complain to your national authorities”, explained Helen Kearns, spokesperson of the Commissioner in charge of Consumer Protection, Meglena Kuneva.

The Commission is targeting the delays of EU Member States in transposing the directive, but it cannot do much for its actual enforcement by the national authorities. “According to the national rules, a company that uses unfair practises could be fined or shut down. But if the authorities don’t respond to the complaints, we cannot intervene directly”, explained an EU official. 

This is due to the fact that the directive is aimed at protecting “collective and not individual rights”. “Every citizen has the right to file a complaint but it is not guaranteed that the national authority will act”, said another EU official. Indeed, this depends on several factors, such as the gravity of the case, the number of complaints, the priorities of the authority. The Commission might directly intervene only if emerges a clear lack of application of the directive, and after complaints issued to Brussels.

Another problem about the enforcement may come from the unfair practices used in a media by a company based in a country outside the EU. A US or Chinese website may get around the new EU legislation exploiting less restrictive national rules. However, “this is a marginal problem since the most important companies active in the EU have at least a branch in the European territory, and thus are subject to the directive”, explained the EU official. “The biggest part of the e-commerce in the EU activities will fall under the scope of the new legislation”, he added.