 | This article has multiple issues. Please help improve it or discuss these issues on the talk page . (Learn how and when to remove these template messages) |
| Konsumentombudsmannen v De Agostini | |
|---|---|
| Court | European Court of Justice |
| Keywords | |
| Free movement of goods | |
Konsumentombudsmannen v De Agostini (1997) C-34/95 is an EU law case, concerning the free movement of goods in the European Union.
Sweden banned TV ads directed at children under age 12, and banned misleading commercials for skin care products and detergents. The Swedish Consumer Ombudsman prosecuted one trader for a magazine called Everything You Need to Know about Dinosaurs , for children under 12. It prosecuted another for marketing a soap called "Body De Lite", in breach of the misleading ad rule.
The Court of Justice held that these were certain selling arrangements. While under Keck the measure applied universally to all traders in a territory, it did not necessarily affect all traders the same in law and fact. If the national court found an unequal burden in law or fact, it would be caught, and would then have to be justified under art 36 or a mandatory requirement.
36 According to De Agostini, TV-Shop and the Commission, the principle that broadcasts are to be controlled by the State having jurisdiction over the broadcaster would be seriously undermined in both its purpose and effect if the Directive were held to be inapplicable to advertisers. They argue that a restriction relating to advertising affects television broadcasts, even if the restriction concerns only advertising.
37 in response to that objection, it is sufficient to observe that Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17), which provides in particular in Article 4(1) that Member States are to ensure that adequate and effective means exist for the control of misleading advertising in the interests of consumers as well as competitors and the general public, could be robbed of its substance in the field of television advertising if the receiving Member State were deprived of all possibility of adopting measures against an advertiser and that this would be in contradiction with the express intention of the Community legislature (see, to this effect, the judgment of the Court of the European Free Trade Association of 16 June 1995 in Joined Cases E-8/94 and E-9/94 Forbrukerombudet v Mattel Scandinavia and Lego Norge , Report of the EFTA Court, 1 January 1994 – 30 June 1995, 113, paragraphs 54 to 56 and paragraph 58).
38 It follows from the foregoing that the Directive does not preclude a Member State from taking, pursuant to general legislation on protection of consumers against misleading advertising, measures against an advertiser in relation to television advertising broadcast from another Member State, provided that those measures do not prevent the retransmission, as such, in its territory of television broadcasts coming from that other Member State.
As regards Article 30 of the Treaty
39 in paragraph 22 of its judgment in Leclerc-Siplec, cited above, the Court held that legislation which prohibits television advertising in a particular sector concerns selling arrangements for products belonging to that sector in that it prohibits a particular form of promotion of a particular method of marketing products.
40 in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, at paragraph 16, the Court held that national measures restricting or prohibiting certain selling arrangements are not covered by Article 30 of the Treaty, so long as they apply to all traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
41 The first condition is clearly fulfilled in the cases before the national court.
42 As regards the second condition, it cannot be excluded that an outright ban, applying in one Member State, of a type of promotion for a product which is lawfully sold there might have a greater impact on products from other Member States.
43 Although the efficacy of the various types of promotion is a question of fact to be determined in principle by the referring court, it is to be noted that in its observations De Agostini stated that television advertising was the only effective form of promotion enabling it to penetrate the Swedish market since it had no other advertising methods for reaching children and their parents.
44 Consequently, an outright ban on advertising aimed at children less than 12 years of age and of misleading advertising, as provided for by the Swedish legislation, is not covered by Article 30 of the Treaty, unless it is shown that the ban does not affect in the same way, in fact and in law, the marketing of national products and of products from other Member States.
45 in the latter case, it is for the national court to determine whether the ban is necessary to satisfy overriding requirements of general public importance or one of the aims listed in Article 36 of the EC Treaty if it is proportionate to that purpose and if those aims or requirements could not have been attained or fulfilled by measures less restrictive of intra-Community trade.
46 Further, according to settled case-law, fair trading and the protection of consumers in general are overriding requirements of general public importance which may justify obstacles to the free movement of goods (Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein ( Cassis de Dijon ) [1979] ECR 649, paragraph 8).
47 Consequently, the answer to the question must be that, on a proper construction of Article 30 of the Treaty, a Member State is not precluded from taking, on the basis of provisions of its domestic legislation, measures against an advertiser in relation to television advertising, provided that those provisions affect in the same way, in law and in fact, the marketing of domestic products and of those from other Member States, are necessary for meeting overriding requirements of general public importance or one of the aims laid down in Article 36 of the Treaty, are proportionate for that purpose, and those aims or overriding requirements could not be met by measures less restrictive of intra-Community trade.
Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93 is a 1995 European Court of Justice decision concerning freedom of movement for workers, freedom of association, and direct effect of article 39 of the TEC. The case was an important decision on the free movement of labour and had a profound effect on the transfers of footballers—and by extension players of other professional sports—within the European Union (EU).
European Union law is a system of rules operating within the member states of the European Union. Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its values and the well-being of its peoples". The EU has political institutions, social and economic policies, which transcend nation states for the purpose of cooperation and human development. According to its Court of Justice the EU represents "a new legal order of international law".
In promotion and advertising, a testimonial or show consists of a person's written or spoken statement extolling the virtue of a product. The term "testimonial" most commonly applies to the sales-pitches attributed to ordinary citizens, whereas the word "endorsement" usually applies to pitches by celebrities. Testimonials can be part of communal marketing. Sometimes, the cartoon character can be a testimonial in a commercial.
Bait-and-switch is a form of fraud used in retail sales but also employed in other contexts. First, customers are "baited" by merchants' advertising products or services at a low price, but when customers visit the store, they discover that the advertised goods are not available, or the customers are pressured by salespeople to consider similar, but higher-priced items ("switching").
False advertising is defined as the act of publishing, transmitting, or otherwise publicly circulating an advertisement containing a false, misleading, or deceptive statement, made intentionally or recklessly to promote the sale of property, goods, or services to the public. A false advertisement can further be classified as deceptive if the advertiser deliberately misleads the consumer, as opposed to making an unintentional mistake. Many governments use regulations to control false advertising.
The European Single Market, Internal Market or Common Market is a single market comprising the 27 member states of the European Union (EU) as well as – with certain exceptions – Iceland, Liechtenstein, and Norway through the Agreement on the European Economic Area, and Switzerland through bilateral treaties. The single market seeks to guarantee the free movement of goods, capital, services, and people, known collectively as the "four freedoms".
The Committee of Advertising Practice (CAP) is a British organisation responsible for the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing, which is the main code of practice for self-regulation of the non-broadcast advertising industry in the UK.
Comparative advertising, or combative advertising, is an advertisement in which a particular product, or service, specifically mentions a competitor by name for the express purpose of showing why the competitor is inferior to the product naming it. Also referred to as "knocking copy", it is loosely defined as advertising where "the advertised brand is explicitly compared with one or more competing brands and the comparison is obvious to the audience". An advertising war is said to be occurring when competing products or services exchange comparative or combative advertisements mentioning each other.
Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd (2003) C-167/01 is a leading corporate law case, concerning the EU law of freedom of establishment for companies.
Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (1979) Case C-120/78, popularly known as Cassis de Dijon after its subject matter, is an EU law decision of the European Court of Justice. The Court held that a regulation applying to both imported and to domestic goods that produces an effect equivalent to a quantitative import restriction is an unlawful restriction on the free movement of goods. The case is a seminal judicial interpretation of article 34 of the Treaty on the Functioning of the European Union. In the same ruling, the Court established the so-called rule of reason, allowing non-discriminatory restrictive measures to be justified on grounds other than those listed in article 36 TFEU.
Procureur du Roi v Benoît and Gustave Dassonville (1974) Case 8/74 is an EU law case of the European Court of Justice, in which a 'distinctly applicable measure of equivalent effect' to a quantitative restriction of trade in the European Union was held to exist on a Scotch whisky imported from France.
The general principles of European Union law are general principles of law which are applied by the European Court of Justice and the national courts of the member states when determining the lawfulness of legislative and administrative measures within the European Union. General principles of European Union law may be derived from common legal principles in the various EU member states, or general principles found in international law or European Union law. General principles of law should be distinguished from rules of law as principles are more general and open-ended in the sense that they need to be honed to be applied to specific cases with correct results.
Reference for a Preliminary Ruling in the Criminal Proceedings against Bernard Keck and Daniel Mithouard (1993) C-267/91 is an EU law case, concerning the conflict of law between a national legal system and European Union law. The Court found that "selling arrangements" did not constitute a measure having equivalent effect to a quantitative restriction on trade between Member States of the European Community, as it was then. As a result, the 'discrimination test' was introduced to identify such selling arrangements.
Konsumentombudsmannen v Gourmet AB (2001) C-405/98 is an EU law case, concerning the free movement of goods in the European Union.
Commission v Italy (2009) C-110/05 is an EU law case, concerning the free movement of goods in the European Union. This case is commonly referred to as 'Italian Trailers', and is predominantly known for establishing the 'market access test'.
Deutscher Apothekerverband v 0800 DocMorris NV (2003) C-322/01 is an EU law case, concerning the free movement of goods in the European Union.
Alpine Investments BV v Minister van Financiën (1995) C-384/93 is an EU law case, concerning the free movement of services in the European Union.
Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa (2009) C‑42/07 is an EU law case, concerning the free movement of services in the European Union.
Deutsches Weintor eG v Land Rheinland-Pfalz (2012) C-544/10 is an EU law case, concerning the free movement of services in the European Union.
Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete [2010] ECR, Case C-108/09 is an EU law case concerning a conflict of law between Hungarian national legislation and European Union law. The Hungarian legislation regarding the online sale of contact lenses was considered with regards to whether it was necessary for the protection of public health, and it was concluded that this could have been done by less restrictive measures. Despite the internal measure in this case being categorised as a selling arrangement, which would generally be determined by the discrimination test established in Keck, the Court went on to use a market access test, as per Italian Trailers. Thus, this case is crucial in the recent development of the tests for determining measures equaling equivalent effect.
