Erhvervsudvalget 2021-22
ERU Alm.del Bilag 277
Offentligt
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Ref. Ares(2022)2137476 - 23/03/2022
Offentligt
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP
AND SMES
Single Market Enforcement
E.2 – Enforcement II
Brussels, 23.03.2022
grow.e.2/FC/az(2022)2119221
Søren Boisen Westh
Headof Section
Erhvervsministeriet
Slotsholmsgade 10-12
DK-1216 København K
e-mail:
[email protected]
Dear Sir,
We would like to thank you for your letters of 21 December 2021, 26 January 2022 and
22 February 2022, referring to the note of 02 July 2021 by the Danish Competition and
Consumer Authority concerning a Danish initiative for implementing an Opt-in scheme
regarding unsolicited printed advertisements.
In your letters, you inquire over the compatibility of such scheme, intended to replace the
non-statutory opt-out scheme currently in force, with EU primary and secondary law.
You also explain that ‘the intention of introducing an opt-in scheme is to lower the
amount of printed advertisements in order to limit the negative environmental impact of
these advertisements.’
The present reply is intended to provide some preliminary informal and general guidance
over the main elements of the scheme.
We note that the proposal envisaged in the note raises several questions with respect to
free movement of goods and services as well as environmental and consumer protection.
The Commission has already stated in its reply of 30 April 2020 to the parliamentary
question E-8/2020
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that an ‘opt-in’ scheme for printed advertisement, which does not
pursue, directly or indirectly, the objective of the protection of consumers' economic
interests, but other goals such as environmental protection, would fall outside the scope
of the Directive 2005/29/EC on unfair commercial practices
2
.
Furthermore, the Court of Justice has held that it is for the national authorities and courts
to decide whether a national provision is intended to directly or indirectly protect the
interests of consumers (C-13/15
Cdiscount).
This position was reiterated in the letter of
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2
https://www.europarl.europa.eu/doceo/document/E-9-2020-000008-ASW_EN.html
See the relevant case law of the Court of Justice (C-540/08
Mediaprint
and C-206/11
Köck)
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
[email protected]
 ERU, Alm.del - 2021-22 - Bilag 277: Orientering vedr. brev fra Europa-Kommissionen vedr. Ja-tak til reklamer, fra erhvervsministeren
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DG JUST of 2 February 2021 in reply to the letter of the Danish Competition and
Consumer Authority 11 December 2020
3
.
When it comes to the fundamental freedoms, it is true that national rules restricting the
free movement of goods or services need to be non-discriminatory, justified by an
overriding reason of public interest and proportionate. However, any assessment of (1)
the possible existence of a restriction of the free movement of goods or services and (2)
the compatibility of a national measure with EU law depends on the specific features of
each measure, including its concrete wording, the objectives pursued and justification,
along with evidence presented.
Moreover, we note that the proportionality test to be carried out on national measures
restricting fundamental freedoms is composed of three steps: the measure must be
suitable to attain the overriding reason in the public interest, must not go beyond what is
necessary to attain it and no less restrictive means should be available to achieve it. With
respect to the latter, the abovementioned Danish note itself outlines a potential alternative
scheme, which, in its own terms, would be less restrictive on fundamental freedoms. This
appears to suggest that the Danish authorities themselves acknowledge the existence of
less restrictive means.
At this stage however, as previously pointed out, the Commission services cannot
provide a complete assessment, only on the basis of the information supplied in the brief
explanatory note informally sent by the Danish Competition and Consumer Authority.
In order to receive a more detailed and comprehensive answer, we invite the Danish
authorities to notify a draft under the applicable notification rules
4
. The notification
procedure would allow all Commission services concerned as well as all other Member
States to carry out a transparent and accurate assessment based on the concrete phrasing
of the proposal and would also provide private stake-holders with the possibility to
submit their views.
Such an open and comprehensive process of information and consultation would enable a
complete assessment, on the basis of all the relevant aspects and comments.
We would like to thank the Danish authorities for their spirit of cooperation and remain
at their disposal to pursue a fruitful dialogue.
Yours faithfully,
[electronically signed]
Salvatore D'ACUNTO
Head of Unit
Contact:
Federico CIUCCI,
[email protected]
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Danish Competition and Consumer Authority letter with reference: FORCE-20/12511-2/11 December
2020; European Commission letter with reference: Ares(2021)901964/02 February 2021
Single Market Transparency Directive 2015/1535 (TRIS notification) or Directive 2006/123/EC on
services in the internal market.
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2
Electronically signed on 23/03/2022 18:23 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121