25.7.2006 EN Official Journal of the European Union L 201/15 COUNCIL DECISION of 18 May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2006/515/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 133, 151, 181 and 181a in conjunction with the second sentence of the first subparagraph of Article 300(2), and the first subparagraph of Article 300(3), thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament (1), Whereas: (1) In November 2004, the Council authorised the Commission to participate, on behalf of the Community, in negotiations at the United Nations Educational, Scientific and Cultural Organisation (UNESCO) concerning a Convention on the Protection and Promotion of the Diversity of Cultural Expressions, hereinafter referred to as the ‘UNESCO Convention’. The Commission participated in these negotiations, together with the Member States. (2) The UNESCO Convention was adopted at the General Conference of UNESCO in Paris on 20 October 2005. (3) The UNESCO Convention constitutes a relevant and effective pillar for promoting cultural diversity and cultural exchanges, to which both the Community, as reflected in Article 151(4) of the Treaty, and its Member States, attach the greatest importance. It contributes towards ensuring mutual respect and understanding between cultures at world level. (4) The UNESCO Convention should be approved as soon as possible. (5) Both the Community and its Member States have competence in the fields covered by the UNESCO Convention. The Community and the Member States should therefore become Contracting Parties to it, so that together they can fulfil the obligations laid down by the UNESCO Convention and exercise the rights invested in them by it, in situations of mixed competence in a coherent manner, HAS DECIDED AS FOLLOWS: Article 1 1. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions is hereby approved on behalf of the Community. 2. The text of the UNESCO Convention is contained in Annex 1(a) to this Decision. Article 2 1. The President of the Council is hereby authorised to designate the person(s) empowered to deposit the instrument of accession, on behalf of the Community, with the Director-General of UNESCO, in accordance with Article 27(4) of the UNESCO Convention. 2. The President of the Council is hereby authorised to designate the person(s) empowered to deposit, on behalf of the Community, the declaration of competence contained in Annex 1(b) to this Decision, in accordance with Article 27(3)(c) of the UNESCO Convention. 3. The President of the Council is hereby authorised to designate the person(s) empowered to issue the Unilateral Declaration reproduced in Annex 2 to this Decision at the time of the deposition of the instrument of accession. Article 3 In respect of matters falling within the Community's competence, the Commission shall represent the Community at meetings of the bodies created by the UNESCO Convention, in particular the Conference of the Parties referred to in Article 22 thereof, and shall negotiate on its behalf concerning questions falling within the remit of those bodies. Article 4 This Decision shall be published in the Official Journal of the European Union. Done at Brussels, 18 May 2006. For the Council The President Franz MORAK (1) Opinion delivered on 27.4.2006 (not yet published in the Official Journal). ANNEX 1(a) CONVENTION on the protection and promotion of the diversity of cultural expressions The General Conference of the United Nations Educational, Scientific and Cultural Organization, meeting in Paris from 3 to 21 October 2005 at its 33rd session, AFFIRMING that cultural diversity is a defining characteristic of humanity, CONSCIOUS that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all, BEING AWARE that cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations, RECALLING that cultural diversity, flourishing within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures, is indispensable for peace and security at the local, national and international levels, CELEBRATING the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized instruments, EMPHASIZING the need to incorporate culture as a strategic element in national and international development policies, as well as in international development cooperation, taking into account also the United Nations Millennium Declaration (2000) with its special emphasis on poverty eradication, TAKING INTO ACCOUNT that culture takes diverse forms across time and space and that this diversity is embodied in the uniqueness and plurality of the identities and cultural expressions of the peoples and societies making up humanity, RECOGNIZING the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion, RECOGNIZING the need to take measures to protect the diversity of cultural expressions, including their contents, especially in situations where cultural expressions may be threatened by the possibility of extinction or serious impairment, EMPHASIZING the importance of culture for social cohesion in general, and in particular its potential for the enhancement of the status and role of women in society, BEING AWARE that cultural diversity is strengthened by the free flow of ideas, and that it is nurtured by constant exchanges and interaction between cultures, REAFFIRMING that freedom of thought, expression and information, as well as diversity of the media, enable cultural expressions to flourish within societies, RECOGNIZING that the diversity of cultural expressions, including traditional cultural expressions, is an important factor that allows individuals and peoples to express and to share with others their ideas and values, RECALLING that linguistic diversity is a fundamental element of cultural diversity, and REAFFIRMING the fundamental role that education plays in the protection and promotion of cultural expressions, TAKING INTO ACCOUNT the importance of the vitality of cultures, including for persons belonging to minorities and indigenous peoples, as manifested in their freedom to create, disseminate and distribute their traditional cultural expressions and to have access thereto, so as to benefit them for their own development, EMPHASIZING the vital role of cultural interaction and creativity, which nurture and renew cultural expressions and enhance the role played by those involved in the development of culture for the progress of society at large, RECOGNIZING the importance of intellectual property rights in sustaining those involved in cultural creativity, BEING CONVINCED that cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value, NOTING that while the processes of globalization, which have been facilitated by the rapid development of information and communication technologies, afford unprecedented conditions for enhanced interaction between cultures, they also represent a challenge for cultural diversity, namely in view of risks of imbalances between rich and poor countries, BEING AWARE of Unesco's specific mandate to ensure respect for the diversity of cultures and to recommend such international agreements as may be necessary to promote the free flow of ideas by word and image, REFERRING to the provisions of the international instruments adopted by Unesco relating to cultural diversity and the exercise of cultural rights, and in particular the Universal Declaration on Cultural Diversity of 2001, ADOPTS THIS CONVENTION ON 20 OCTOBER 2005. I. OBJECTIVES AND GUIDING PRINCIPLES Article 1 Objectives The objectives of this Convention are: (a) to protect and promote the diversity of cultural expressions; (b) to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner; (c) to encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace; (d) to foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples; (e) to promote respect for the diversity of cultural expressions and raise awareness of its value at the local, national and international levels; (f) to reaffirm the importance of the link between culture and development for all countries, particularly for developing countries, and to support actions undertaken nationally and internationally to secure recognition of the true value of this link; (g) to give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning; (h) to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory; (i) to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions. Article 2 Guiding principles Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof. States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory. The protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. International cooperation and solidarity should be aimed at enabling countries, especially developing countries, to create and strengthen their means of cultural expression, including their cultural industries, whether nascent or established, at the local, national and international levels. Since culture is one of the mainsprings of development, the cultural aspects of development are as important as its economic aspects, which individuals and peoples have the fundamental right to participate in and enjoy. Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations. Equitable access to a rich and diversified range of cultural expressions from all over the world and access of cultures to the means of expressions and dissemination constitute important elements for enhancing cultural diversity and encouraging mutual understanding. When States adopt measures to support the diversity of cultural expressions, they should seek to promote, in an appropriate manner, openness to other cultures of the world and to ensure that these measures are geared to the objectives pursued under the present Convention. II. SCOPE OF APPLICATION Article 3 Scope of application This Convention shall apply to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions. III. DEFINITIONS Article 4 Definitions For the purposes of this Convention, it is understood that: 1. Cultural diversity ‘Cultural diversity’ refers to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used. 2. Cultural content ‘Cultural content’ refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities. 3. Cultural expressions ‘Cultural expressions’ are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content. 4. Cultural activities, goods and services ‘Cultural activities, goods and services’ refers to those activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services. 5. Cultural industries ‘Cultural industries’ refers to industries producing and distributing cultural goods or services as defined in paragraph 4 above. 6. Cultural policies and measures ‘Cultural policies and measures’ refers to those policies and measures relating to culture, whether at the local, national, regional or international level that are either focused on culture as such or are designed to have a direct effect on cultural expressions of individuals, groups or societies, including on the creation, production, dissemination, distribution of and access to cultural activities, goods and services. 7. Protection ‘Protection’ means the adoption of measures aimed at the preservation, safeguarding and enhancement of the diversity of cultural expressions. “Protect” means to adopt such measures. 8. Interculturality ‘Interculturality’ refers to the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect. IV. RIGHTS AND OBLIGATIONS OF PARTIES Article 5 General rule regarding rights and obligations 1. The Parties, in conformity with the Charter of the United Nations, the principles of international law and universally recognized human rights instruments, reaffirm their sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention. 2. When a Party implements policies and takes measures to protect and promote the diversity of cultural expressions within its territory, its policies and measures shall be consistent with the provisions of this Convention. Article 6 Rights of parties at the national level 1. Within the framework of its cultural policies and measures as defined in Article 4.6 and taking into account its own particular circumstances and needs, each Party may adopt measures aimed at protecting and promoting the diversity of cultural expressions within its territory. 2. Such measures may include the following: (i) regulatory measures aimed at protecting and promoting diversity of cultural expressions; (ii) measures that, in an appropriate manner, provide opportunities for domestic cultural activities, goods and services among all those available within the national territory for the creation, production, dissemination, distribution and enjoyment of such domestic cultural activities, goods and services, including provisions relating to the language used for such activities, goods and services; (iii) measures aimed at providing domestic independent cultural industries and activities in the informal sector effective access to the means of production, dissemination and distribution of cultural activities, goods and services; (iv) measures aimed at providing public financial assistance; (v) measures aimed at encouraging non-profit organizations, as well as public and private institutions and artists and other cultural professionals, to develop and promote the free exchange and circulation of ideas, cultural expressions and cultural activities, goods and services, and to stimulate both the creative and entrepreneurial spirit in their activities; (vi) measures aimed at establishing and supporting public institutions, as appropriate; (vii) measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions; (viii) measures aimed at enhancing diversity of the media, including through public service broadcasting. Article 7 Measures to promote cultural expressions 1. Parties shall endeavour to create in their territory an environment which encourages individuals and social groups: (a) to create, produce, disseminate, distribute and have access to their own cultural expressions, paying due attention to the special circumstances and needs of women as well as various social groups, including persons belonging to minorities and indigenous peoples; (b) to have access to diverse cultural expressions from within their territory as well as from other countries of the world. 2. Parties shall also endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions. Article 8 Measures to protect cultural expressions 1. Without prejudice to the provisions of Articles 5 and 6, a Party may determine the existence of special situations where cultural expressions on its territory are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding. 2. Parties may take all appropriate measures to protect and preserve cultural expressions in situations referred to in paragraph 1 in a manner consistent with the provisions of this Convention. 3. Parties shall report to the Intergovernmental Committee referred to in Article 23 all measures taken to meet the exigencies of the situation, and the Committee may make appropriate recommendations. Article 9 Information sharing and transparency Parties shall: (a) provide appropriate information in their reports to Unesco every four years on measures taken to protect and promote the diversity of cultural expressions within their territory and at the international level; (b) designate a point of contact responsible for information sharing in relation to this Convention; (c) share and exchange information relating to the protection and promotion of the diversity of cultural expressions. Article 10 Education and public awareness Parties shall: (a) encourage and promote understanding of the importance of the protection and promotion of the diversity of cultural expressions, inter alia, through educational and greater public awareness programmes; (b) cooperate with other Parties and international and regional organizations in achieving the purpose of this article; (c) endeavour to encourage creativity and strengthen production capacities by setting up educational, training and exchange programmes in the field of cultural industries. These measures should be implemented in a manner which does not have a negative impact on traditional forms of production. Article 11 Participation of civil society Parties acknowledge the fundamental role of civil society in protecting and promoting the diversity of cultural expressions. Parties shall encourage the active participation of civil society in their efforts to achieve the objectives of this Convention. Article 12 Promotion of international cooperation Parties shall endeavour to strengthen their bilateral, regional and international cooperation for the creation of conditions conducive to the promotion of the diversity of cultural expressions, taking particular account of the situations referred to in Articles 8 and 17, notably in order to: (a) facilitate dialogue among Parties on cultural policy; (b) enhance public sector strategic and management capacities in cultural public sector institutions, through professional and international cultural exchanges and sharing of best practices; (c) reinforce partnerships with and among civil society, non-governmental organizations and the private sector in fostering and promoting the diversity of cultural expressions; (d) promote the use of new technologies, encourage partnerships to enhance information sharing and cultural understanding, and foster the diversity of cultural expressions; (e) encourage the conclusion of co-production and co-distribution agreements. Article 13 Integration of culture in sustainable development Parties shall endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions. Article 14 Cooperation for development Parties shall endeavour to support cooperation for sustainable development and poverty reduction, especially in relation to the specific needs of developing countries, in order to foster the emergence of a dynamic cultural sector by, inter alia, the following means: (a) the strengthening of the cultural industries in developing countries through: (i) creating and strengthening cultural production and distribution capacities in developing countries; (ii) facilitating wider access to the global market and international distribution networks for their cultural activities, goods and services; (iii) enabling the emergence of viable local and regional markets; (iv) adopting, where possible, appropriate measures in developed countries with a view to facilitating access to their territory for the cultural activities, goods and services of developing countries; (v) providing support for creative work and facilitating the mobility, to the extent possible, of artists from the developing world; (vi) encouraging appropriate collaboration between developed and developing countries in the areas, inter alia, of music and film; (b) capacity-building through the exchange of information, experience and expertise, as well as the training of human resources in developing countries, in the public and private sector relating to, inter alia, strategic and management capacities, policy development and implementation, promotion and distribution of cultural expressions, small-, medium- and micro-enterprise development, the use of technology, and skills development and transfer; (c) technology transfer through the introduction of appropriate incentive measures for the transfer of technology and know-how, especially in the areas of cultural industries and enterprises; (d) financial support through: (i) the establishment of an International Fund for Cultural Diversity as provided in Article 18; (ii) the provision of official development assistance, as appropriate, including technical assistance, to stimulate and support creativity; (iii) other forms of financial assistance such as low interest loans, grants and other funding mechanisms. Article 15 Collaborative arrangements Parties shall encourage the development of partnerships, between and within the public and private sectors and non-profit organizations, in order to cooperate with developing countries in the enhancement of their capacities in the protection and promotion of the diversity of cultural expressions. These innovative partnerships shall, according to the practical needs of developing countries, emphasize the further development of infrastructure, human resources and policies, as well as the exchange of cultural activities, goods and services. Article 16 Preferential treatment for developing countries Developed countries shall facilitate cultural exchanges with developing countries by granting, through the appropriate institutional and legal frameworks, preferential treatment to artists and other cultural professionals and practitioners, as well as cultural goods and services from developing countries. Article 17 International cooperation in situations of serious threat to cultural expressions Parties shall cooperate in providing assistance to each other, and, in particular to developing countries, in situations referred to under Article 8. Article 18 International Fund for Cultural Diversity 1. An International Fund for Cultural Diversity, hereinafter referred to as ‘the Fund’, is hereby established. 2. The Fund shall consist of funds-in-trust established in accordance with the Financial Regulations of Unesco. 3. The resources of the Fund shall consist of: (a) voluntary contributions made by Parties; (b) funds appropriated for this purpose by the General Conference of Unesco; (c) contributions, gifts or bequests by other States; organizations and programmes of the United Nations system, other regional or international organizations; and public or private bodies or individuals; (d) any interest due on resources of the Fund; (e) funds raised through collections and receipts from events organized for the benefit of the Fund; (f) any other resources authorized by the Fund's regulations. 4. The use of resources of the Fund shall be decided by the Intergovernmental Committee on the basis of guidelines determined by the Conference of Parties referred to in Article 22. 5. The Intergovernmental Committee may accept contributions and other forms of assistance for general and specific purposes relating to specific projects, provided that those projects have been approved by it. 6. No political, economic or other conditions that are incompatible with the objectives of this Convention may be attached to contributions made to the Fund. 7. Parties shall endeavour to provide voluntary contributions on a regular basis towards the implementation of this Convention. Article 19 Exchange, analysis and dissemination of information 1. Parties agree to exchange information and share expertise concerning data collection and statistics on the diversity of cultural expressions as well as on best practices for its protection and promotion. 2. Unesco shall facilitate, through the use of existing mechanisms within the Secretariat, the collection, analysis and dissemination of all relevant information, statistics and best practices. 3. Unesco shall also establish and update a data bank on different sectors and governmental, private and non-profit organizations involved in the area of cultural expressions. 4. To facilitate the collection of data, Unesco shall pay particular attention to capacity-building and the strengthening of expertise for Parties that submit a request for such assistance. 5. The collection of information identified in this Article shall complement the information collected under the provisions of Article 9. V. RELATIONSHIP TO OTHER INSTRUMENTS Article 20 Relationship to other treaties: mutual supportiveness, complementarity and non-subordination 1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty, (a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and (b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention. 2. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties. Article 21 International consultation and coordination Parties undertake to promote the objectives and principles of this Convention in other international forums. For this purpose, Parties shall consult each other, as appropriate, bearing in mind these objectives and principles. VI. ORGANS OF THE CONVENTION Article 22 Conference of Parties 1. A Conference of Parties shall be established. The Conference of Parties shall be the plenary and supreme body of this Convention. 2. The Conference of Parties shall meet in ordinary session every two years, as far as possible, in conjunction with the General Conference of Unesco. It may meet in extraordinary session if it so decides or if the Intergovernmental Committee receives a request to that effect from at least one-third of the Parties. 3. The Conference of Parties shall adopt its own rules of procedure. 4. The functions of the Conference of Parties shall be, inter alia: (a) to elect the Members of the Intergovernmental Committee; (b) to receive and examine reports of the Parties to this Convention transmitted by the Intergovernmental Committee; (c) to approve the operational guidelines prepared upon its request by the Intergovernmental Committee; (d) to take whatever other measures it may consider necessary to further the objectives of this Convention. Article 23 Intergovernmental Committee 1. An Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, hereinafter referred to as ‘the Intergovernmental Committee’, shall be established within Unesco. It shall be composed of representatives of 18 States Parties to the Convention, elected for a term of four years by the Conference of Parties upon entry into force of this Convention pursuant to Article 29. 2. The Intergovernmental Committee shall meet annually. 3. The Intergovernmental Committee shall function under the authority and guidance of and be accountable to the Conference of Parties. 4. The Members of the Intergovernmental Committee shall be increased to 24 once the number of Parties to the Convention reaches 50. 5. The election of Members of the Intergovernmental Committee shall be based on the principles of equitable geographical representation as well as rotation. 6. Without prejudice to the other responsibilities conferred upon it by this Convention, the functions of the Intergovernmental Committee shall be: (a) to promote the objectives of this Convention and to encourage and monitor the implementation thereof; (b) to prepare and submit for approval by the Conference of Parties, upon its request, the operational guidelines for the implementation and application of the provisions of the Convention; (c) to transmit to the Conference of Parties reports from Parties to the Convention, together with its comments and a summary of their contents; (d) to make appropriate recommendations to be taken in situations brought to its attention by Parties to the Convention in accordance with relevant provisions of the Convention, in particular Article 8; (e) to establish procedures and other mechanisms for consultation aimed at promoting the objectives and principles of this Convention in other international forums; (f) to perform any other tasks as may be requested by the Conference of Parties. 7. The Intergovernmental Committee, in accordance with its Rules of Procedure, may invite at any time public or private organizations or individuals to participate in its meetings for consultation on specific issues. 8. The Intergovernmental Committee shall prepare and submit to the Conference of Parties, for approval, its own Rules of Procedure. Article 24 Unesco Secretariat 1. The organs of the Convention shall be assisted by the Unesco Secretariat. 2. The Secretariat shall prepare the documentation of the Conference of Parties and the Intergovernmental Committee as well as the agenda of their meetings and shall assist in and report on the implementation of their decisions. VII. FINAL CLAUSES Article 25 Settlement of disputes 1. In the event of a dispute between Parties to this Convention concerning the interpretation or the application of the Convention, the Parties shall seek a solution by negotiation. 2. If the Parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party. 3. If good offices or mediation are not undertaken or if there is no settlement by negotiation, good offices or mediation, a Party may have recourse to conciliation in accordance with the procedure laid down in the Annex of this Convention. The Parties shall consider in good faith the proposal made by the Conciliation Commission for the resolution of the dispute. 4. Each Party may, at the time of ratification, acceptance, approval or accession, declare that it does not recognize the conciliation procedure provided for above. Any Party having made such a declaration may, at any time, withdraw this declaration by notification to the Director-General of Unesco. Article 26 Ratification, acceptance, approval or accession by Member States 1. This Convention shall be subject to ratification, acceptance, approval or accession by Member States of Unesco in accordance with their respective constitutional procedures. 2. The instruments of ratification, acceptance, approval or accession shall be deposited with the Director-General of Unesco. Article 27 Accession 1. This Convention shall be open to accession by all States not Members of Unesco but members of the United Nations, or of any of its specialized agencies, that are invited by the General Conference of Unesco to accede to it. 2. This Convention shall also be open to accession by territories which enjoy full internal self-government recognized as such by the United Nations, but which have not attained full independence in accordance with General Assembly resolution 1514 (XV), and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of such matters. 3. The following provisions apply to regional economic integration organizations: (a) This Convention shall also be open to accession by any regional economic integration organization, which shall, except as provided below, be fully bound by the provisions of the Convention in the same manner as States Parties; (b) In the event that one or more Member States of such an organization is also Party to this Convention, the organization and such Member State or States shall decide on their responsibility for the performance of their obligations under this Convention. Such distribution of responsibility shall take effect following completion of the notification procedure described in subparagraph (c). The organization and the Member States shall not be entitled to exercise rights under this Convention concurrently. In addition, regional economic integration organizations, in matters within their competence, shall exercise their rights to vote with a number of votes equal to the number of their Member States that are Parties to this Convention. Such an organization shall not exercise its right to vote if any of its Member States exercises its right, and vice-versa; (c) A regional economic integration organization and its Member State or States which have agreed on a distribution of responsibilities as provided in subparagraph (b) shall inform the Parties of any such proposed distribution of responsibilities in the following manner: (i) in their instrument of accession, such organization shall declare with specificity, the distribution of their responsibilities with respect to matters governed by the Convention; (ii) in the event of any later modification of their respective responsibilities, the regional economic integration organization shall inform the depositary of any such proposed modification of their respective responsibilities; the depositary shall in turn inform the Parties of such modification; (d) Member States of a regional economic integration organization which become Parties to this Convention shall be presumed to retain competence over all matters in respect of which transfers of competence to the organization have not been specifically declared or informed to the depositary; (e) ‘Regional economic integration organization’ means an organization constituted by sovereign States, members of the United Nations or of any of its specialized agencies, to which those States have transferred competence in respect of matters governed by this Convention and which has been duly authorized, in accordance with its internal procedures, to become a Party to it. 4. The instrument of accession shall be deposited with the Director-General of Unesco. Article 28 Point of contact Upon becoming Parties to this Convention, each Party shall designate a point of contact as referred to in Article 9. Article 29 Entry into force 1. This Convention shall enter into force three months after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession, but only with respect to those States or regional economic integration organizations that have deposited their respective instruments of ratification, acceptance, approval, or accession on or before that date. It shall enter into force with respect to any other Party three months after the deposit of its instrument of ratification, acceptance, approval or accession. 2. For the purposes of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by Member States of the organization. Article 30 Federal or non-unitary constitutional systems Recognizing that international agreements are equally binding on Parties regardless of their constitutional systems, the following provisions shall apply to Parties which have a federal or non-unitary constitutional system: (a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those Parties which are not federal States; (b) with regard to the provisions of the Convention, the implementation of which comes under the jurisdiction of individual constituent units such as States, counties, provinces, or cantons which are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform, as necessary, the competent authorities of constituent units such as States, counties, provinces or cantons of the said provisions, with its recommendation for their adoption. Article 31 Denunciation 1. Any Party to this Convention may denounce this Convention. 2. The denunciation shall be notified by an instrument in writing deposited with the Director-General of Unesco. 3. The denunciation shall take effect 12 months after the receipt of the instrument of denunciation. It shall in no way affect the financial obligations of the Party denouncing the Convention until the date on which the withdrawal takes effect. Article 32 Depositary functions The Director-General of Unesco, as the depositary of this Convention, shall inform the Member States of the Organization, the States not members of the Organization and regional economic integration organizations referred to in Article 27, as well as the United Nations, of the deposit of all the instruments of ratification, acceptance, approval or accession provided for in Articles 26 and 27, and of the denunciations provided for in Article 31. Article 33 Amendments 1. A Party to this Convention may, by written communication addressed to the Director-General, propose amendments to this Convention. The Director-General shall circulate such communication to all Parties. If, within six months from the date of dispatch of the communication, no less than one half of the Parties reply favourably to the request, the Director-General shall present such proposal to the next session of the Conference of Parties for discussion and possible adoption. 2. Amendments shall be adopted by a two-thirds majority of Parties present and voting. 3. Once adopted, amendments to this Convention shall be submitted to the Parties for ratification, acceptance, approval or accession. 4. For Parties which have ratified, accepted, approved or acceded to them, amendments to this Convention shall enter into force three months after the deposit of the instruments referred to in paragraph 3 of this Article by two-thirds of the Parties. Thereafter, for each Party that ratifies, accepts, approves or accedes to an amendment, the said amendment shall enter into force three months after the date of deposit by that Party of its instrument of ratification, acceptance, approval or accession. 5. The procedure set out in paragraphs 3 and 4 shall not apply to amendments to Article 23 concerning the number of Members of the Intergovernmental Committee. These amendments shall enter into force at the time they are adopted. 6. A State or a regional economic integration organization referred to in Article 27 which becomes a Party to this Convention after the entry into force of amendments in conformity with paragraph 4 of this Article shall, failing an expression of different intention, be considered to be: (a) Party to this Convention as so amended; and (b) a Party to the unamended Convention in relation to any Party not bound by the amendments. Article 34 Authoritative texts This Convention has been drawn up in Arabic, Chinese, English, French, Russian and Spanish, all six texts being equally authoritative. Article 35 Registration In conformity with Article 102 of the Charter of the United Nations, this Convention shall be registered with the Secretariat of the United Nations at the request of the Director-General of Unesco. ANNEX CONCILIATION PROCEDURE Article 1 Conciliation Commission A Conciliation Commission shall be created upon the request of one of the Parties to the dispute. The Commission shall, unless the Parties otherwise agree, be composed of five members, two appointed by each Party concerned and a President chosen jointly by those members. Article 2 Members of the Commission In disputes between more than two Parties, Parties in the same interest shall appoint their members of the Commission jointly by agreement. Where two or more Parties have separate interests or there is a disagreement as to whether they are of the same interest, they shall appoint their members separately. Article 3 Appointments If any appointments by the Parties are not made within two months of the date of the request to create a Conciliation Commission, the Director-General of Unesco shall, if asked to do so by the Party that made the request, make those appointments within a further two-month period. Article 4 President of the Commission If a President of the Conciliation Commission has not been chosen within two months of the last of the members of the Commission being appointed, the Director-General of Unesco shall, if asked to do so by a Party, designate a President within a further two-month period. Article 5 Decisions The Conciliation Commission shall take its decisions by majority vote of its members. It shall, unless the Parties to the dispute otherwise agree, determine its own procedure. It shall render a proposal for resolution of the dispute, which the Parties shall consider in good faith. Article 6 Disagreement A disagreement as to whether the Conciliation Commission has competence shall be decided by the Commission. ANNEX 1(b) Declaration of the European Community in application of Article 27(3)(c) of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions The current members of the European Community are the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland. This Declaration indicates the competences transferred to the Community by the Member States under the Treaties, in the areas covered by the Convention. The Community has exclusive competence for the common commercial policy (Articles 131-134 of the Treaty), except for the commercial aspects of intellectual property and trade in services in those areas set out in Article 133 (5) and (6) of the Treaty (in particular, in this context, trade in cultural and audiovisual services) where responsibility is shared between the Community and the Member States. It conducts a development cooperation policy (Articles 177-181 of the Treaty) and a policy of cooperation with industrialised countries (Article 181a of the Treaty) without prejudice to the respective competences of the Member States. It has shared competence as regards the free movement of goods, persons, services and capital (Articles 23-31 and 39-60 of the Treaty), competition (Articles 81-89 of the Treaty) and the internal market, including intellectual property (Articles 94-97 of the Treaty). Pursuant to Article 151 of the Treaty, in particular paragraph 4 thereof, the Community takes cultural aspects into account in its action under other provisions of the Treaty, in particular in order to respect and to promote the diversity of its cultures. The Community Acts listed below illustrate the extent of the area of competence of the Community in accordance with the provisions establishing the European Community. Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994) (OJ L 336, 23.12.1994, p. 1). Council Regulation (EC) No 2501/2001 of 10 December 2001 applying a scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004 — Statements on a Council Regulation applying a scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004 (OJ L 346, 31.12.2001, p. 1). Council Decision 2005/599/EC of 21 June 2005 concerning the signing, on behalf of the European Community, of the Agreement amending the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ L 209, 11.8.2005, p. 26). Council Regulation (EC) No 2698/2000 of 27 November 2000 amending Regulation (EC) No 1488/96 on financial and technical measures to accompany the reform of economic and social structures in the framework of the Euro-Mediterranean Partnership (MEDA) (OJ L 311, 12.12.2000, p. 1). Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to the Republic of Hungary and the Polish People's Republic, and subsequent amendments, still applicable to Bulgaria and Romania (OJ L 375, 23.12.1989, p. 11). Council Regulation (EC) No 2666/2000 of 5 December 2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia and repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and (EEC) No 1360/90 and Decisions 97/256/EC and 1999/311/EC (OJ L 306, 7.12.2000, p. 1). Council Regulation (EEC) No 443/92 of 25 February 1992 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America (OJ L 52, 27.2.1992, p. 1). Council Regulation (EC, Euratom) No 99/2000 of 29 December 1999 concerning the provision of assistance to the partner States in Eastern Europe and Central Asia (OJ L 12, 18.1.2000, p. 1). Decision No 792/2004/EC of the European Parliament and of the Council of 21 April 2004 establishing a Community action programme to promote bodies active at European level in the field of culture (OJ L 138, 30.4.2004, p. 40). Decision No 508/2000/EC of the European Parliament and the Council of 14 February 2000 establishing the Culture 2000 programme (OJ L 63, 10.3.2000, p. 1). Decision No 1419/1999/EC of the European Parliament and of the Council of 25 May 1999 establishing a Community action for the European Capital of Culture event for the years 2005 to 2019 (OJ L 166, 1.7.1999, p. 1). Council Decision of 22 September 1997 regarding the future of European cultural action OJ C 305, 7.10.1997, p. 1 Council Decision of 22 September 1997 on cross-border fixed book prices in European linguistic areas (OJ C 305, 7.10.1997, p. 2 Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p. 23). Directive amended by Directive 97/36/EC of the European Parliament and of the Council(OJ L 202, 30.7.1997, p. 60) Council Decision 2000/821/EC of 20 December 2000 on the implementation of a programme to encourage the development, distribution and promotion of European audiovisual works (MEDIA Plus - Development, Distribution and Promotion) (2001-2005) (OJ L 336, 30.12.2000, p. 82). Decision No 163/2001/EC of the European Parliament and of the Council of 19 January 2001 on the implementation of a training programme for professionals in the European audiovisual programme industry (MEDIA-Training) (2001-2005) (OJ L 26, 27.1.2001, p. 1). Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, 27.3.1999, p. 1), relating to State aid. Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45). Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10). Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ L 272, 13.10.2001, p. 32). Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission OJ L 248, 6.10.1993, p. 15). Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights (OJ L 290, 24.11.1993, p. 9). Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ L 346, 27.11.1992, p. 61) The exercise of Community competence is, by its nature, subject to continuous development. In this respect, therefore, the Community reserves the right to notify other future declarations regarding the distribution of competences between the European Community and the Member States. ANNEX 2 Unilateral declaration on behalf of the community in connection with deposition of the instrument of accession ‘As regards the Community competences described in the Declaration pursuant to Article 27(3)(c) of the Convention, the Community is bound by the Convention and will ensure its due implementation. It follows that the Member States of the Community which are party to the Convention in their mutual relations apply the provisions of the Convention in accordance with the Community's internal rules and without prejudice to appropriate amendments being made to these rules.’

Summary: Convention on the protection and promotion of the diversity of cultural expressions Convention on the protection and promotion of the diversity of cultural expressions SUMMARY OF: Decision 2006/515/EC on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions The convention is included in the annex of the decision. WHAT IS THE AIM OF THE DECISION AND THE CONVENTION? The decision approves the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions on behalf of the European Union (EU). The convention aims to support national policies and measures by: creating an informed, transparent and participatory system of governance for culture; encouraging the flow of cultural goods and services and the mobility of artists and cultural professionals; promoting sustainable development policies and international assistance programmes that strategically integrate culture; promoting artistic freedom and the social and economic rights of artists. KEY POINTS Convention objectives Protecting and promoting the diversity of cultural expressions. Creating the conditions for cultures to flourish and to interact in a mutually beneficial way. Encouraging dialogue among cultures and wider cultural exchanges in the world, based on respect and a culture of peace. Fostering interculturality, i.e. shared cultural expressions through dialogue and mutual respect, developing cultural interaction and building bridges among peoples. Promoting respect for the diversity of cultural expressions and raising awareness of its value at the local, national and international levels. Reaffirming the importance of the link between culture and development everywhere, particularly in developing countries, and to support national or international actions to recognise the true value of this link. Recognising the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning. Reaffirming countries’ sovereign rights to implement policies and measures that protect and promote the diversity of cultural expressions. Strengthening international cooperation and solidarity in a spirit of partnership, particularly aimed at enhancing the capacity of developing countries to protect and promote the diversity of cultural expressions. Guiding principles Cultural diversity can be protected and promoted only if human rights and fundamental freedoms are guaranteed. Countries have the sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory. Protecting and promoting the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. International cooperation and solidarity should enable countries, especially developing countries, to create and strengthen their means of cultural expression. The cultural aspects of development are as important as its economic aspects, which individuals and peoples have the fundamental right to participate in and enjoy. Cultural diversity is a rich asset for individuals and societies and an essential requirement for sustainable development for the benefit of present and future generations. Equitable access to a rich and diversified range of cultural expressions from all over the world, and access to the means of expression and dissemination, are important elements for enhancing cultural diversity and encouraging mutual understanding. When countries adopt measures to support the diversity of cultural expressions, they should seek to promote openness to other cultures of the world and to ensure that these measures are in line with the convention’s objectives. Definitions in the convention Cultural diversity refers to the many ways that the cultures of groups and societies are expressed. These expressions are passed on within and among groups and societies, and include artistic creation and its enjoyment. Cultural content refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities. Cultural expressions are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content. Cultural activities, goods and services are those which embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural industries are those producing and distributing cultural goods or services. Cultural policies and measures are those relating to culture at the local, national, regional or international levels. They may be focused on culture or designed to have a direct effect on cultural expressions of individuals, groups or societies. Rights and obligations of parties to the convention Measures promoting cultural expressions, with particular attention to the special circumstances and needs of women and various social groups, including persons belonging to minorities and indigenous peoples. Measures protecting cultural expressions, including in situations where cultural expressions are at risk of extinction, under serious threat or otherwise in need of urgent safeguarding. Information sharing and transparency, including submitting reports to UNESCO every 4 years and designating a national point of contact. Education and public awareness, including setting up educational, training and exchange programmes. The role of civil society in protecting and promoting the diversity of cultural expressions. Promotion of international cooperation to create conditions conducive to diversity of cultural expressions, including in situations where this is under serious threat. Integrating culture in sustainable development at all levels. Supporting cooperation for sustainable development and poverty reduction, especially in developing countries, to foster the emergence of a dynamic cultural sector. Developing partnerships between and within the public and private sectors and non-profit organisations; Preferential treatment for developing countries. Creating an International Fund for Cultural Diversity. Exchange, analysis and dissemination of information. Governing bodies of the convention The Conference of Parties, the plenary and supreme body of the convention, meets in ordinary session every 2 years. The Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions meets annually. It is composed of representatives of the countries that are party to the convention, who are elected for 4-year terms by the Conference of Parties. The UNESCO secretariat provides administrative assistance. DATE OF ENTRY INTO FORCE The Convention entered into force on 18 March 2007. BACKGROUND See also: Diversity of Cultural Expressions (UNESCO). MAIN DOCUMENT Council Decision 2006/515/EC of 18 May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (OJ L 201, 25.7.2006, pp. 15–30). last update 30.11.2021


27.12.2006 EN Official Journal of the European Union L 376/21 DIRECTIVE 2006/114/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006 concerning misleading and comparative advertising (codified version) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee (1), Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), Whereas: (1) Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified. (2) The laws against misleading advertising in force in the Member States differ widely. Since advertising reaches beyond the frontiers of individual Member States, it has a direct effect on the smooth functioning of the internal market. (3) Misleading and unlawful comparative advertising can lead to distortion of competition within the internal market. (4) Advertising, whether or not it induces a contract, affects the economic welfare of consumers and traders. (5) The differences between the laws of the Member States on advertising which misleads business hinder the execution of advertising campaigns beyond national boundaries and thus affect the free circulation of goods and provision of services. (6) The completion of the internal market means a wide range of choice. Given that consumers and traders can and must make the best possible use of the internal market, and that advertising is a very important means of creating genuine outlets for all goods and services throughout the Community, the basic provisions governing the form and content of comparative advertising should be uniform and the conditions of the use of comparative advertising in the Member States should be harmonised. If these conditions are met, this will help demonstrate objectively the merits of the various comparable products. Comparative advertising can also stimulate competition between suppliers of goods and services to the consumer's advantage. (7) Minimum and objective criteria for determining whether advertising is misleading should be established. (8) Comparative advertising, when it compares material, relevant, verifiable and representative features and is not misleading, may be a legitimate means of informing consumers of their advantage. It is desirable to provide a broad concept of comparative advertising to cover all modes of comparative advertising. (9) Conditions of permitted comparative advertising, as far as the comparison is concerned, should be established in order to determine which practices relating to comparative advertising may distort competition, be detrimental to competitors and have an adverse effect on consumer choice. Such conditions of permitted advertising should include criteria of objective comparison of the features of goods and services. (10) The international conventions on copyright as well as the national provisions on contractual and non-contractual liability should apply when the results of comparative tests carried out by third parties are referred to or reproduced in comparative advertising. (11) The conditions of comparative advertising should be cumulative and respected in their entirety. In accordance with the Treaty, the choice of forms and methods for the implementation of these conditions should be left to the Member States, insofar as those forms and methods are not already determined by this Directive. (12) These conditions should include, in particular, consideration of the provisions resulting from Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (5), and in particular Article 13 thereof, and of the other Community provisions adopted in the agricultural sphere. (13) Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (6) confers exclusive rights on the proprietor of a registered trade mark, including the right to prevent all third parties from using, in the course of trade, any sign which is identical to, or similar to, the trade mark in relation to identical goods or services or even, where appropriate, other goods. (14) It may, however, be indispensable, in order to make comparative advertising effective, to identify the goods or services of a competitor, making reference to a trade mark or trade name of which the latter is the proprietor. (15) Such use of another's trade mark, trade name or other distinguishing marks does not breach this exclusive right in cases where it complies with the conditions laid down by this Directive, the intended target being solely to distinguish between them and thus to highlight differences objectively. (16) Persons or organisations regarded under national law as having a legitimate interest in the matter should have facilities for initiating proceedings against misleading and unlawful comparative advertising, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. (17) The courts or administrative authorities should have powers enabling them to order or obtain the cessation of misleading and unlawful comparative advertising. In certain cases it may be desirable to prohibit misleading and unlawful comparative advertising even before it is published. However, this in no way implies that Member States are under an obligation to introduce rules requiring the systematic prior vetting of advertising. (18) The voluntary control exercised by self-regulatory bodies to eliminate misleading or unlawful comparative advertising may avoid recourse to administrative or judicial action and ought therefore to be encouraged. (19) While it is for national law to determine the burden of proof, it is appropriate to enable courts and administrative authorities to require traders to produce evidence as to the accuracy of factual claims they have made. (20) Regulating comparative advertising is necessary for the smooth functioning of the internal market. Action at Community level is therefore required. The adoption of a Directive is the appropriate instrument because it lays down uniform general principles while allowing the Member States to choose the form and appropriate method by which to attain these objectives. It is in accordance with the principle of subsidiarity. (21) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives as set out in Part B of Annex I, HAVE ADOPTED THIS DIRECTIVE: Article 1 The purpose of this Directive is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted. Article 2 For the purposes of this Directive: (a) ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations; (b) ‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor; (c) ‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor; (d) ‘trader’ means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and anyone acting in the name of or on behalf of a trader; (e) ‘code owner’ means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it. Article 3 In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning: (a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services; (b) the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided; (c) the nature, attributes and rights of the advertiser, such as his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions. Article 4 Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met: (a) it is not misleading within the meaning of Articles 2(b), 3 and 8(1) of this Directive or Articles 6 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’) (7); (b) it compares goods or services meeting the same needs or intended for the same purpose; (c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price; (d) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor; (e) for products with designation of origin, it relates in each case to products with the same designation; (f) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; (g) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name; (h) it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor. Article 5 1. Member States shall ensure that adequate and effective means exist to combat misleading advertising and enforce compliance with the provisions on comparative advertising in the interests of traders and competitors. Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating misleading advertising or regulating comparative advertising may: (a) take legal action against such advertising; or (b) bring such advertising before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. 2. It shall be for each Member State to decide which of the facilities referred to in the second subparagraph of paragraph 1 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 6. 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. 3. Under the provisions referred to in paragraphs 1 and 2, 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: (a) to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, misleading advertising or unlawful comparative advertising; or (b) if the misleading advertising or unlawful comparative advertising has not yet been published but publication is imminent, to order the prohibition of, or to institute appropriate legal proceedings for an order for the prohibition of, such publication. The first subparagraph shall apply even where there is no proof of actual loss or damage or of intention or negligence on the part of the advertiser. Member States shall 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, at the Member States' discretion. 4. Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of misleading advertising or unlawful comparative advertising, the cessation of which has been ordered by a final decision: (a) to require publication of that decision in full or in part and in such form as they deem adequate; (b) to require in addition the publication of a corrective statement. 5. The administrative authorities referred to in point (b) of the second subparagraph of 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. 6. Where the powers referred to in paragraphs 3 and 4 are exercised exclusively by an administrative authority, reasons for its decisions shall always be given. 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. Article 6 This Directive does not exclude the voluntary control, which Member States may encourage, of misleading or comparative advertising by self-regulatory bodies and recourse to such bodies by the persons or organisations referred to in the second subparagraph of Article 5(1) on condition that proceedings before such bodies are additional to the court or administrative proceedings referred to in that Article. Article 7 Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings referred to in Article 5: (a) to require the advertiser to furnish evidence as to the accuracy of factual claims in advertising if, taking into account the legitimate interest of the advertiser and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case and in the case of comparative advertising to require the advertiser to furnish such evidence in a short period of time; and (b) to consider factual claims as inaccurate if the evidence demanded in accordance with point (a) is not furnished or is deemed insufficient by the court or administrative authority. Article 8 1. This Directive shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection, with regard to misleading advertising, for traders and competitors. The first subparagraph shall not apply to comparative advertising as far as the comparison is concerned. 2. The provisions of this Directive shall apply without prejudice to Community provisions on advertising for specific products and/or services or to restrictions or prohibitions on advertising in particular media. 3. The provisions of this Directive concerning comparative advertising shall not oblige Member States which, in compliance with the provisions of the Treaty, maintain or introduce advertising bans regarding certain goods or services, whether imposed directly or by a body or organisation responsible, under the law of the Member States, for regulating the exercise of a commercial, industrial, craft or professional activity, to permit comparative advertising regarding those goods or services. Where these bans are limited to particular media, this Directive shall apply to the media not covered by these bans. 4. Nothing in this Directive shall prevent Member States, in compliance with the provisions of the Treaty, from maintaining or introducing bans or limitations on the use of comparisons in the advertising of professional services, whether imposed directly or by a body or organisation responsible, under the law of the Member States, for regulating the exercise of a professional activity. Article 9 Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 10 Directive 84/450/EEC is hereby repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives, as set out in Part B of Annex I. References made to the repealed Directive shall be construed as being made to this Directive and should be read in accordance with the correlation table set out in Annex II. Article 11 This Directive shall enter into force on 12 December 2007. Article 12 This Directive is addressed to the Member States. Done at Strasbourg, 12 December 2006. For the European Parliament The President J. BORRELL FONTELLES For the Council The President M. PEKKARINEN (1) Opinion of 26 October 2006 (not yet published in the Official Journal). (2) Opinion of the European Parliament of 12 October 2006 (not yet published in the Official Journal) and Council Decision of 30 November 2006. (3) OJ L 250, 19.9.1984, p. 17. Directive as last amended by Directive 2005/29/EC of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22). (4) See Annex I, Part A. (5) OJ L 93, 31.3.2006, p. 12. (6) OJ L 40, 11.2.1989, p. 1. Directive as amended by Decision 92/10/EEC (OJ L 6, 11.1.1992, p. 35). (7) OJ L 149, 11.6.2005, p. 22. ANNEX I PART A Repealed Directive with its successive amendments Council Directive 84/450/EEC (OJ L 250, 19.9.1984, p. 17) Directive 97/55/EC of the European Parliament and of the Council (OJ L 290, 23.10.1997, p. 18) Directive 2005/29/EC of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22) only Article 14 PART B List of time-limits for transposition into national law and application (referred to in Article 10) Directive Time-limit for transposition Date of application 84/450/EEC 1 October 1986 — 97/55/EC 23 April 2000 — 2005/29/EC 12 June 2007 12 December 2007 ANNEX II CORRELATION TABLE Directive 84/450/EEC This Directive Article 1 Article 1 Article 2, introductory words Article 2, introductory words Article 2, point 1 Article 2(a) Article 2, point 2 Article 2(b) Article 2, point 2a Article 2(c) Article 2, point 3 Article 2(d) Article 2, point 4 Article 2(e) Article 3 Article 3 Article 3a(1) Article 4 Article 4(1), first subparagraph, first sentence Article 5(1), first subparagraph Article 4(1), first subparagraph, second sentence Article 5(1), second subparagraph Article 4(1), second subparagraph Article 5(2), first subparagraph Article 4(1), third subparagraph Article 5(2), second subparagraph Article 4(2), first subparagraph, introductory words Article 5(3), first subparagraph, introductory words Article 4(2), first subparagraph, first indent Article 5(3), first subparagraph, point (a) Article 4(2), first subparagraph, second indent Article 5(3), first subparagraph, point (b) Article 4(2), first subparagraph, final words Article 5(3), second subparagraph Article 4(2), second subparagraph, introductory words Article 5(3), third subparagraph Article 4(2), second subparagraph, first indent Article 5(3), third subparagraph Article 4(2), second subparagraph, second indent Article 5(3), third subparagraph Article 4(2), second subparagraph, final words Article 5(3), third subparagraph Article 4(2), third subparagraph, introductory words Article 5(4), introductory words Article 4(2), third subparagraph, first indent Article 5(4), point (a) Article 4(2), third subparagraph, second indent Article 5(4), point (b) Article 4(3), first subparagraph Article 5(5) Article 4(3), second subparagraph Article 5(6) Article 5 Article 6 Article 6 Article 7 Article 7(1) Article 8(1), first subparagraph Article 7(2) Article 8(1), second subparagraph Article 7(3) Article 8(2) Article 7(4) Article 8(3) Article 7(5) Article 8(4) Article 8, first subparagraph — Article 8, second subparagraph Article 9 — Article 10 — Article 11 Article 9 Article 12 — Annex I — Annex II

Summary: Misleading and comparative advertising Misleading and comparative advertising SUMMARY OF: Directive 2006/114/EC concerning misleading and comparative advertising WHAT IS THE AIM OF THE DIRECTIVE? It seeks to protect traders against misleading advertising from other businesses (i.e. B2B), which is equivalent to an unfair commercial practice. To this end, it determines the conditions under which comparative advertising is authorised. KEY POINTS Misleading advertising Advertisements which mislead or which may mislead the people who receive them are forbidden. The misleading nature of these advertisements could affect the economic behaviour of consumers and traders, or may be detrimental to a competitor. The misleading nature of advertisements depends on a set of criteria: the characteristics of the goods or services (availability, nature or composition, method of manufacture or provision, origin, etc.), the results to be expected from their use, and the results of quality checks carried; the price or the manner in which the price is calculated; the conditions governing the supply of the goods or services; the nature, qualities and rights of the advertiser (identity and assets, qualifications, intellectual property rights, etc.). Comparative advertising Comparative advertising explicitly or by implication makes reference to a competitor or competing goods or services. This type of advertising is only permitted when it is not misleading. It can be a legitimate means of informing consumers of what is in their interests. Therefore, in particular, the comparisons should: relate to goods or services which meet the same needs or are intended for the same purpose; relate to products with the same designation of origin; deal objectively with the material, relevant, verifiable and representative features of those goods or services, which may include price; avoid creating confusion between traders, and should not discredit, imitate or take advantage of the trade mark or trade names of a competitor. Recourse European Union (EU) countries must ensure that those persons or organisations with a legitimate interest may bring a court action or an administrative appeal against illicit advertising; Therefore, courts or administrative bodies from EU countries must be able to: order the withdrawal of illicit advertising, even in the absence of proof, of actual loss, damage or of an intention of negligence; or prohibit illicit advertising which has not yet been published. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 12 December 2007. This directive codifies and repeals Directive 84/450/EEC, which EU countries had to incorporate into national law by 1 October 1986. BACKGROUND For more information, see: ‘Misleading advertising’ on the European Commission's website MAIN DOCUMENT Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version) (OJ L 376, 27.12.2006, pp. 21–27) last update 24.10.2016