Prohibitory injunction
The prohibitory injunction provided by former legislation was restated with a few small technical adjustments.
According to the directives of 1984 and 1997, the judge may, in case of misleading advertising or of unauthorised comparative advertising, henceforth apply a reversal of the burden of proof in the sense that it is the announcer who will have to present evidence concerning the percipient accuracy of the de facto information contained in the publicity if such a demand seems to be appropriate on sight of the circumstances having regard to the specific case, taking into account the legitimate interests of the announcer and of any other party to the procedure; failing this, the judge may consider these factual data as inaccurate.
The judge presiding the session of the district court sitting in commercial matters at the request of any individual, professional group or consumer association represented in the pricing commission, will order the cessation of the acts which are contrary to the provisions of the law, even in the absence of proof of a loss or of a real prejudice or of an intention or a negligence by the announcer.
The action at law is introduced and ruled as in summary proceedings according to articles 932 to 940 of the New Code of Civil Procedure. Also applicable shall be articles 2059 to 2066 of the Civil Code.
In case of misleading advertising or unauthorised comparative advertising, the judge presiding the session of the district court sitting in commercial matters can :
a) demand that the advertiser present evidence concerning the material accuracy of the factual information contained in the advertisement, taking into account legitimate interests of the advertiser and any other part of the procedure, if such a requirement appears to be appropriate in view of the circumstances of the specific case, and in the case of comparative advertising, demand that the advertiser present his evidence soonest ;
b) consider factual information as false if the evidence necessary according to point a) is not presented or is considered as being insufficient.
It can be ordered that the decision be posted outside of the sales installations of the infringer and at the latter’s expense. The decision will specify the duration of the posting. Publication may also be ordered by means of newspapers or in any other way totally or by extract at the cost of the infringer.
Posting and publication can only be carried out in pursuance of a decree absolute.
Penalties
The amount of the fine was brought into line with the amount provided by the law on the right of establishment. What is entirely new is the will to attach a penalty to all actions which constitute fraudulent competition.
The interest of being able to pass judgment in criminal matters resides in a supplementary sanction provided by the law on the right of establishment which enacts that an authorisation for establishment can be refused or revoked in cases where the interested party has been subject to penalty on the count of a breach of the legal provisions relative to unfair competition, which is the general term for qualifying the combined infringements of the law on commercial practice.
Two Grand Ducal regulations were drawn up to enforce the law of 30 July 2002. The first establishes the list of information and documents which are to be presented together with a request for authorisation to carry out sales in the form of a clearing sale and lays down the modalities according to which a control can possibly be carried out in execution of the provisions of article 7 point 2 of the law of 30 July 2002. The second Grand ducal regulation lays down the functioning modalities of the advisory commission with the purpose of notifying sales requests in the form of a clearance sale and their extension, as well as sales requests for auctions of new goods based on article 7 point 1 of the law of 30 July 2002.
Any non-compliance with the injunctions or interdiction according to a decision which has become final by virtue of article 23 is punishable with a fine of between 251 euro and 120,000 euro.
The same fines are applicable to traders/shopkeepers who have violated the other provisions relating to bargain sales (articles 3, 4 and 5 paragraph 3) and sales in the form of clearance sales of goods (articles 7.1, 7.3, 7.4, 9.1, 9.3, 10 et 11), to those who have carried out public auctions of new goods without having respected the conditions of article 13, as well as those who will have acted contrary to the provisions of articles 14 to 22.
Irrespective of public action, the suspension of any act contrary to these provisions can be ordered by the judge presiding the session at the district court sitting in commercial matters and ruling as per the above-mentioned article 23. The suspension ordered will cease, however, in case of an irrevocable sentence of acquittal by the judge in criminal matters.
Individuals, professional groups or representative consumer associations mentioned in article 23 of the law are permitted to bring civil action before the repressive courts in relation to facts which are causing prejudice to their private or collective interests.
In case of a conviction, the courts can order the publication in the newspapers or the posting of the decision. In the assumption of a decision of acquittal, they may order a publication or a posting at the cost of the State.
|
