On 27 November 2012, the European Commission (the “Commission”) published a Communication setting out a strategy for protecting businesses against marketing scams.
The Commission cites misleading directory companies as the most frequent perpetrators of marketing scams. In this regard, it notably points out that the Belgian authorities received not less than 2,883 complaints about directory scams in the period 2008-2010. Other common scams include (i) misleading payment forms disguised as an invoice for services that the trader has purportedly already ordered; and (ii) the practice of pretending to offer a specialised service but in fact charging abusive prices for a simple and cheap task (e.g., web domain registration or inclusion in the list of trademarks).
As an immediate step, the Commission will strengthen the enforcement of Directive 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising (“Directive 2006/114/EC”). To this end, it will create within the next months an ad hoc working group of national enforcers and key authorities to share information on large-scale misleading marketing practices and set common priorities.
In the course of 2013, the Commission also plans to present a proposal to amend Directive 2006/114/EC. This proposal will amend the Directive both from a substantive and a procedural perspective.
From a substantive perspective, the Commission intends to introduce (i) a clearer definition of misleading marketing practices; (ii) a black-list of banned misleading marketing practices; (iii) strengthened penalties; and (iv) clearer rules on comparative advertising, in particular as regards price comparison and the relation between comparative advertising and intellectual property rights.
From a procedural perspective, the Commission contemplates establishing a cooperation procedure between the enforcement authorities of the different EU Member States in order to enable them to exchange information and request cross-border assistance from each other. The Commission also intends to introduce an explicit mutual assistance obligation for the EU Member States. Further, it intends to require the EU Member States to designate an enforcement authority in the area of business-to-business marketing.
In 2011, Belgium already introduced a specific legal provision in the Law of 6 April 2010 on Market Practices and Consumer Protection (Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming/Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur) targeting the practices of misleading directory companies (See, VBB on Belgian Business Law, Volume 2011, No. 5, p. 16 and No. 9, p. 10, available at www.vbb.com).
