Last updated: August 2010  

There are several European Directives that refer to marketing communcations. Below is a list of the most important Directives.

 Audiovisual Media Services (AVMS) Directive

 Unfair Commercial Practices (UCP) Directive

Other important Directives are the CO2 Labelling Directive for Cars, the Energy Labelling Directive and the Nutrition Labelling Directive.

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Audiovisual Media Services Directive

The Audiovisual Media Services directive extends and updates 1989's TV Without Frontiers, in part by taking into account the growing market of video on demand services and internet-based broadcasters. The directive seeks to create a "level playing field" between traditional TV-based broadcasts and online broadcasts.

Following the European Parliament’s approval of the new 'Audiovisual Media Services Directive' on 29 November 2007, all Member States had to apply the revised standards to all "TV-like services", including web-streamed TV programmes by the end of 2009. As such, Member States were given 24 months to transpose the new provisions into national law, so that the modernised legal framework for audiovisual business fully applied in 2009.

Self-regulatory references

With regards to the inclusion of SR in the directive, it is important to consider recital 25 and article 3.3.

The wording in recital 25 contains definitions of both self- and co-regulation.

(25) In its Communication to the Council and the European Parliament on Better Regulation for Growth and Jobs in the European Union the Commission stressed that a careful analysis on the appropriate regulatory approach, in particular whether legislation is preferable for the relevant sector and problem, or whether alternatives such as co-regulation or self regulation should be considered. Furthermore, experience showed that both co- and self-regulation instruments, implemented in accordance with different legal traditions of Member States can play an important role in delivering a high level of consumer protection. Measures aimed at achieving public interest objectives in the emerging audiovisual media services sector will be more effective if they are taken with the active support of the service providers themselves. Thus self regulation constitutes a type of voluntary initiative, which enables the economic operators, social partners, non-governmental organisations or associations to adopt common guidelines amongst themselves and for themselves. Member States should, in accordance with their different legal traditions, recognise the role which effective self-regulation can play as a complement to the legislation and judicial and/or administrative mechanisms in place and its useful contribution to the achievement of the objectives of this Directive. However, while self-regulation might be a complementary method of implementing certain provisions of this Directive, it cannot constitute a substitute for the obligation of the national legislator.

 

Co-regulation gives, in its minimal form, a "legal link" between self-regulation and the national legislator in accordance with the legal traditions of the Member States. Co-regulation should retain the possibility for State intervention in the event that its objectives are not met. Without prejudice to Member States' formal obligations regarding transposition, this Directive encourages the use of such instruments. This neither obliges Member States to set up co- and/or self-regulatory regimes nor disrupts or jeopardises current co- or self-regulatory initiatives which are already in place within Member States and which are working effectively.

A new positive development has also been the re-definition of recital 25a, which confirms the role of media literacy, a topic EASA has been actively involved with.

(25A) Media literacy refers to skills, knowledge and understanding that allow consumers to use media effectively and safely. Media-literate people will be able to exercise informed choices, understand the nature of content and services and take advantage of the full range of opportunities offered by new communications technologies. They will be better able to protect themselves and their families from harmful or offensive material. Therefore the development of media literacy in all sections of society should be promoted and progress followed closely. The Recommendation on the protection of minors and human dignity and on the right of reply contains already a series of possible measures for promoting media literacy such as, for example, continuing education of teachers and trainers, specific Internet training aimed at children from a very early age, including sessions open to parents, or organisation of national campaigns aimed at citizens, involving all communications media, to provide information on using the Internet responsibly.

Art. 3.3, the main objective of our efforts, now includes a reference to both co- AND self-regulation, thereby confirming its role as an accepted and supported policy tool.

Art. 3.3 Member States shall encourage co- and/or self-regulatory regimes at national level in the fields coordinated by this Directive to the extent permitted by their legal systems.These regimes shall be such that they are broadly accepted by the main stakeholders in the Member States concerned and provide for effective enforcement.

For further info please refer to: http://ec.europa.eu/avpolicy/reg/avms/index_en.htm

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Unfair Commercial Practices Directive

The Unfair Commercial Practices directive (UCP) is a major reform legislation concerning unfair business practices in the European Union. The new legislation outlines "sharp practices" which will be prohibited throughout the EU, such as misleading and aggressive marketing.

It was due to be transposed into national legislation across Europe by June 2007, and the new rules are applicable across EU by 12 December 2007, 2½ years after their formal adoption in May 2005.

The Directive introduces a concept of ‘invitation to purchase’ (Article 2). Under the Directive, whenever an ‘invitation to purchase’ is made, traders must provide consumers with certain pieces of information (Article 7(4)).

Although the Directive states that ‘invitation to purchase’ is clearly defined within the Directive, this is not the case. Article 2 is very much open to interpretation and unfortunately the recitals provide no further clarification. The strictest interpretation of Article 2 would mean that any ad clearly depicting the characteristics of a product and including a price could become an ‘invitation to purchase’ and subject to Art 7(4).

Detailed issues arising

Article 7 covers misleading omissions generally and Article 7(3) allows enforcers some flexibility to take into account limitations of space and time in media, as long as the trader makes the information available to consumers by other means.

The implementation of the Directive will have a substantial impact on commercial communications in all media (including those outside the remit of the Advertising Codes) including TV ads; radio ads; SMS; press; shop window; websites. Therefore it is necessary to have a discussion at national level over whether the information requirements should be enforced on for example, every single web page on which there is a price (instead of links to the relevant information) and for example, whether editorial in press/ magazines are tantamount to ‘invitations to purchase’.

It is the position of EASA that an invitation to purchase – as reflected in the definition of Article 2(i) – in order to avoid problems which can not be solved even when arguing for a more flexible way interpreting articles 2 and 7 - requires the presence of an additional element: a mechanism that enables the consumer to actually make the purchase.The presence of this additional element is in fact an integral part of the existing framework in France, the UK and other Member States.

Clearly the primary objective of the UCP should be to ensure that consumers are not enticed to making a purchase on the basis of faulty, incomplete or misleading information. Conversely, the introduction of unnecessary or disproportionate information requirements should be avoided. This can only be achieved by allowing each commercial communication to be assessed on its individual merits.

Extract from UCP Directive

Article 2 - Definitions

i) "invitation to purchase" means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase;

Article 7 - Misleading omissions

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

a) the main characteristics of the product, to an extent appropriate to the medium and the product;

b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence; for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

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