CHAPTER 4

FINAL PROVISIONS

Enforcement
Article 11
1
Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.
Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:
a
take legal action against such unfair commercial practices;
and/or
b
bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.
It shall be for each Member State to decide which of these facilities shall be available and whether to enable the courts or administrative authorities to require prior recourse to other established means of dealing with complaints, including those referred to in Article 10. These facilities shall be available regardless of whether the consumers affected are in the territory of the Member State where the trader is located or in another Member State.
It shall be for each Member State to decide:
a
whether these legal facilities may be directed separately or jointly against a number of traders from the same economic sector;
and
b
whether these legal facilities may be directed against a code owner where the relevant code promotes non-compliance with legal requirements.
2
Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:
1. to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices;
or
2. if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice,
even without proof of actual loss or damage or of intention or negligence on the part of the trader.
Member States shall also make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure:
- either with interim effect,
or
- with definitive effect,
on the understanding that it is for each Member State to decide which of the two options to select.
Furthermore, Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of unfair commercial practices the cessation of which has been ordered by a final decision:
1. to require publication of that decision in full or in part and in such form as they deem adequate;
2. to require in addition the publication of a corrective statement.
3
The administrative authorities referred to in paragraph 1 must:
a
be composed so as not to cast doubt on their impartiality;
b
have adequate powers, where they decide on complaints, to monitor and enforce the observance of their decisions effectively;
c
normally give reasons for their decisions.
Where the powers referred to in paragraph 2 are exercised exclusively by an administrative authority, reasons for its decisions shall always be given. Furthermore, in this case, provision must be made for procedures whereby improper or unreasonable exercise of its powers by the administrative authority or improper or unreasonable failure to exercise the said powers can be the subject of judicial review.