The Basic Features of the Directive
Directive 84/450/EEC was thus above all a compromise. Since it laid down a comparatively low minimum standard that was already exceeded in most Member States, and left out disputed issues concerning the definition of “misleading” and the question of enforcement, almost all Member States could retain the approach they were already familiar with.
[…]
Although the fundamental prohibition on misleading advertising in Art. 2 Nos. 1 and 3 is broadly worded in the manner of a general clause – the Directive uses the terms “Deception” and “misleading” synonymously – it follows that there is a further criterion, namely that the assessment must be based on the Point of View of the target group [⇒ Affected Make Rules]. In addition, it is sufficient for the advertising to be capable of misleading; there is thus no need for proof of actual deception. And finally, the deception must be capable of influencing the conduct of the addressees of the advertising or of damaging competitors, i.e. it is only relevant deception that is covered.
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HILTY, Reto M. and HENNING-BODEWIG, Frauke, 2007. Law against Unfair Competition: Towards a New Paradigm in Europe?. Guildford Boulder: Springer London NetLibrary, Inc. [distributor]. MPI studies on intellectual property, competition and tax law, v. 1. ISBN 978-3-540-71882-6.
Council Directive 84/450/EEC of September 10, 1984, relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising. OJ L 250/17, September 19, 1984; see also HENNING-BODEWIG supra note 3.