Summary of theses

Claim objectives

Implementation deficits

All Member States have implemented the duty in domestic law to order cessation or prohibition for an advertising infringement. However, in some countries there are deficits or ambiguities in the implementation.

(1) In Germany the easing of the burden of proof, called for in art. 6 lit. (a) Misleading and Comparative Advertising Directive 84/450/EEC, has only partly been implemented into national law. Because of the ambiguous wording of art. 6 it remains unclear what form of implementation is required.

(2) In England interlocutory legal protection is subsidiary to the compensatory claim. The OFT also regards the injunction as a remedy of last resort. This low priority is not provided for in the Misleading and Comparative Advertising Directive 84/450/EEC.

(3) The legal position in Sweden, Finland and England, which do not admit as a matter of principle the preventive cessation claim on the grounds of press freedom, is not in conformity with art. 4 para. 2 Misleading and Comparative Advertising Directive 84/450/EEC.

Proposals for further harmonization

Art. 11–13 of the Directive on Unfair Commercial Practices largely adopts the legal harmonization which was already achieved in 1984. Legal consequences which already exist in almost all Member States could lead without difficulties to further European legal harmonization.

(4) With the exception of the legal position in England all states provide for monetary fines in cases where orders of an authority or courts are infringed.