Larive Report On The Commission’s Green Paper On Commercial Communications

– having regard to the Commission’s Green Paper on Commercial Communications in the Internal Market (COM(96)0192 final – C4-0365/96);

– having regard to articles 59, 56, 30 and 36 of the EC Treaty;

The legal basis governing commercial communications is Article 100a, which entails the application of Articles 59, 56, 30 and 36 of the Treaty;

 
– having regard to articles 128 (culture), 129 (public health) and 129A (consumer protection), 130 (industrial policy) and 85 (competition policy) of the EC Treaty;

Considers that a suitable vehicle for such guidelines could be a communication adopted with a view to the completion of the internal market, which could have a multi-disciplinary approach, since commercial communications affect the Commission’s industrial policy, competition policy, public sector policy, audio-visual policy, cultural policy and in particular consumer protection and health. An assessment should be made of the implications of the principle of subsidiarity and the above-mentioned areas of action with regard to national legislation.

 
– having regard to the 8 cases dealt with by the Court of Justice since 1973 in the field of commercial communications;

– having regard to the Television without Frontiers Directive 89/552/EEC and its articles 10-21 (television and sponsorship) and more specifically advertising of tobacco (article 13), pharmaceuticals (article 14), alcohol (article 15), children’s advertising (article 16) and protection of minors (article 22);

– having regard to the Misleading Advertising Directive 84/450/EEC; the Directive on Advertising for medicinal products for human use 92/28/EEC; the Data Protection Directive 95/46/EEC; the Directive on Labelling, Presentation and Advertising for Foodstuffs for sale to the ultimate consumer 79/112/EEC; the Directive on co-ordination of laws, regulations and administrative provisions relating to direct life insurance 92/96/EEC; the Directive on the protection of consumers in respect of distance contracts xx/xx/EEC;

– having regard to the European Parliament’s report on the Priorities for Consumer Policy 1996-1998 (A4-0317/96), in particular recitals 5 (distance selling and comparative advertising); 6, 8 and 9 (implementation of European law); 10 (redress); 11 (time-frame); 22 (information); 23 (transparency);

having regard to the Commission’s Green Paper on the Protection of Minors and human dignity in audio-visual and information services (com(96)0483) and the Commission’s communication on Illegal and Harmful Content on the Internet (com(96)0487);

The Committee calls on the Commission to come forward with a more detailed assessment of the effects of commercial communications on children, on the impact of privacy and on the mechanisms through which consumer cross-border complaints could be addressed;

The Committee calls on the Commission to bring forward specific measures on children and commercial communications (especially in view of the new technologies), to establish a coherent framework to regulate unfair marketing practices on-line, to concentrate its efforts on effective enforcement of legislation, particularly in cross-border cases, and to encourage effective cross-border complaints systems;

having regard to the European Parliament resolution on the Commission Communication on illegal and harmful content on the Internet (A4-0098/97);

 
– having regard to the extensive consultation performed by the Commission in preparation of this Green Paper and the underlying studies;

– having regard to the possibility of every European citizen to use the services of the ombudsman and the Committee on Petitions of the European Parliament to seek redress;

– having regard to the report of the Committee on Economic and Monetary Affairs and on Industrial Policy and the opinions of the Committee on the Environment, Public Health and Consumer Protection ( ), the Committee on Legal Affairs and Citizens’ Rights ( ) and the Committee on Culture, Youth, Education and the Media ( ), (A4-0000/96);

A. Whereas it is essential that the European Commission should be required to apply its right of initiative to fulfil the obligation of the Treaty as laid down in article 63;

Aa. whereas the persons and businesses providing commercial communications services should benefit from Article 59 of the Treaty since such services are remunerated and may be provided across frontiers;

Ab. whereas application of the principle of proportionality is essential to ensure that Community law is applied effectively;

 
B. whereas the Internal Market for commercial communications is not presently functioning in a satisfactory manner; as 99% of those consulted providing commercial communication services identified potential trade barriers linked to disparity in national regulations and cultural difference;

 
Considers that commercial communications should not be regarded merely as a sector of economic activity. Clear and transparent guidelines at European level would make a significant contribution to making the internal market a reality.

 
C. Whereas there is a need to promote the development of cross-border commercial communication services; as these are coupled to the free circulation of goods, the job creation potential is enormous and the fundamental role that these services will play in the on-going development of electronic commerce;

D. whereas the principle of subsidiarity should also apply in this sphere of activity, which means that measures may be enforced by self-regulation, but Community-wide regulation is sometimes necessary;

F. Whereas the Commission rightly states that restrictions imposed at a national or European level need to be justified in terms of their proportionality and in view of the general interest objectives recognised in the Treaty protecting consumers, culture, health and other public interests;

I. Whereas Treaty objectives as set out, inter alia, in Articles 100A and 129A require that the EU attains a high level of consumer protection, and that consumers and/or their representatives should be consulted and fully involved in all steps towards achieving the objectives of the Treaty;

Given that Article 100a of the Treaty clearly states that internal market measures must ‘take as a base a high level of protection’ for consumers, the Committee considers that both the Commission directorate responsible for consumer protection and consumer organizations should play an integral role in the overall appraisal of policy-making in the commercial communications field.

 
J. Whereas significant benefits to consumers are already apparent in terms of choice and quality of goods and services now available in Member States from all over the European Union, although the single market still has a long way to go before completion;

K. Whereas the encouragement of cultural diversity is both essential and an aim of the Treaty, differences between national rules and regulations in commercial communication should not be allowed to persist as obstacles to the single market; however, where those differences are deep-rooted in national tradition, the Treaty provides the means for ensuring that they are both genuine and proportionate

1. Welcomes the Green Paper, but considers that the Commission’s proposals must be reinforced in order to reach the intended goal;

2. Asks the Commission to publish in its announced follow-up communication the definition of a proportionality assessment methodology, which includes strict time limits for decisions, is based on existing jurisprudence and explains how it is applicable to existing legislation at national and Community level, self-regulatory codes and new legislative proposals;

3. Calls for the establishment of a tripartite committee consisting equally of Member States’ representatives, industry representatives and consumer organisations and asks to be consulted on its rules of procedure;

4. Requests the Commission to ensure that the proceedings of the Committee on the proposed proportionality assessment be fully transparent and further to ensure that the Committee consults thoroughly with the complaining parties, meets regularly, operates according to strict time limits, publishes its results and considers all complaints lodged with the Commission; the Committee shall report to the European Parliament;

Believes that the proportionality assessment procedure should under no circumstances entail an extension of the normal deadline by which the Commission takes its decisions.

 
5. Calls on the commercial communications sector to ensure that its national and European self-regulatory procedures are publicly available, published and transparent, and that individual consumers can complain easily, without cost to themselves and in expectation of a prompt and satisfactory response; encourages the industries involved to include in the self-regulatory codes the principle of country of origin, mutual recognition, proportionality and to introduce minimum standards of consumer protection;

6. Calls on consumer organisations to make full use of all enforcement mechanisms to protect the interests of consumers in the single market, including the infringement procedure, the forthcoming committee on proportionality and all national bodies responsible for overseeing commercial communication;

7. Defeated

 
8. Calls on the Commission to present in the follow-up Communication a full inventory of existing barriers to free circulation of the commercial communications services;

As regards the proposal to set up a central contact point to coordinate information, the committee considers that this idea is a valuable one. However, it calls on the Commission to ensure that the contact point is established in the context of a clearly defined framework of information and policy-making in the information society field that incorporates all of the interest involved. In order to ensure a high level of consumer protection that respects cultural diversity this framework should be developed at an interservice level bringing together all of the interests involved.

 
9. Asks the Commission to undertake a comprehensive study of the economic relevance of the commercial communications sector to the single market;

10. Stresses the need for a data bank with Community and national legislation in the area of commercial communications and for the immediate creation of a single European contact point which should, as a first priority, supply the European Parliament with a full overview and analysis of existing self-regulatory codes in the Member States;

11. Calls on the Commission to consider a SLIM analysis (Simpler Legislation in the Internal Market) of the sector;

12. Calls on the Commission to study the obstacles to multi-level marketing, brand diversification, packaging and sponsoring in the European Union and to assess the need for legislation to guarantee the single market in these growing forms of commercial communication;

Approves the Commission’s proposal that sponsorship be considered one of the priority areas in the analysis of the sectors referred to in the Green Paper; this must of course be in the areas authorized under the television-without-frontiers directive; proposes that the Commission should also take account in its analysis of patronage, which represents a form of commercial communication.

Endorses the view that the complementary role of sponsorship should on no account be neglected, but emphasizes that basic responsibility with respect to culture and its financing rests with the Member States’ authorities;

Emphasizes the need to improve information on the financing options that enable cultural initiatives to be developed in the Member States; the usefulness of promoting exchanges of information by developing innovative initiatives that seek to enable optimum use to be made of resources for cultural activities (structural, economic and human) in the Member States; the usefulness of promoting meetings of representatives of the cultural sector and sponsors/patrons with a view to developing coherent initiatives, therefore proposes that the Commission devise a strategy for encouraging and recognizing patronage and sponsorship for projects on a European scale.

Emphasizes that the differences of approach among the Member States with regard to sponsorship/patronage relate not only to different regulations but also to fiscal implications (for example deductibility of the costs of patronage, which is currently possible under various measures in the Member States);

Emphasizes the importance of sponsorship in the development of cultural networks and synergies between museums and other artistic activities in order, among other works for exhibitions; invites the Commission to put forward specific proposals in this sector and requests the Commission to take account of this aspect.

Emphasizes the positive role of sponsorship in improving public access to the cultural heritage and to other cultural activities, thanks notably to the development of advanced information and communications technologies.

Emphasizes the complementary relationship which exists between sponsorship of an event and sponsorship of the televising thereof; for this reason, requests the Commission to reflect on the differing regulations which currently govern these two sets of activities.

14. Is of the opinion that the Commission is not making full use of its existing powers; insists that articles 63 and 169 are applied systematically;

Believes that, when drawing up its communication on commercial communications, the Commission should examine the principles deriving from secondary legislation in this sector and also take into account the following points:

The Committee calls on the Consumer Affairs Council to hold a discussion on the consumer issues arising out of this Green Paper.

Calls on the Commission to consider the question of restrictions on commercial communications of food products in its forthcoming Green Paper on food policy.

 
15. Is of the opinion that the Council should consider expanding the application of the proposed Directive on Regulatory Transparency Mechanism on new services to cover also Commercial Communications;

16. Requests that the Commission reports back to the European Parliament on possible initiatives to improve the Treaty infringement procedures to ensure that these are transparent, operate to strict time limits and offer proper provision for appeal with equal access to all interest parties;

17. Asks for the introduction of a Council decision to enable possible infringement proceedings to be heard in the Court of First Instance;