EEC - Harmonisation of legislation ; - Misleading advertising - Directive 84/450 as amended by Directive 97/55 - Directive not yet transposed - National law prohibiting comparative advertising - Interpretation in accordance with the directive - Lawful comparative advertising within the meaning of the new Article 3(a) of the directive

Having been asked to rule on an injunction in respect of comparative publicity, the presiding judge of the Luxembourg Tribunal d'Arrondissement, referring largely to the case law of the European Court of Justice, set aside the application of national legislation in force and instead applied Directive 97/55/EC of the European Parliament and of the Council on comparative advertising, not yet transposed in the Grand Duchy. The claimant, Entreprise des Postes et Télécommunications, maintained that the advertising in question was in breach of Luxembourg legislation governing certain commercial practices and penalising unfair competition. The defendant, a public limited company, was citing the provisions of the aforementioned Directive 97/55/EC amending Council Directive 84/450/EEC on misleading advertising, which, in its view, permitted contrary Luxembourg legislation to be set aside.

Citing the case law of the European Court of Justice concerning the fact that the Directives had no horizontal effect and the requirement for consistent interpretation, specifically the Faccini Dori, Marshall and Marleasing judgements, the presiding judge stated:

"The European Court of Justice added in other cases that despite the fact that directives have no horizontal effect, the national court must refuse – even in a dispute between individuals - to apply a national technical regulation adopted under conditions which are incompatible with the procedural requirements of a directive (CJEC, 26 September 2000, Unilever Italie Spa and Central Food Spa, case 443/98), the national court remaining bound by the duty of consistent interpretation (CJEC, 23 February 1999, BMW, case C-63/97, ECR I-905). Although the aforementioned rulings were handed down in disputes in which the Directives had been transposed into national law, it was nevertheless possible to invoke the Directives outside the framework of "vertical" disputes (CJEC, 14 September 2000, R. Collino and L. Chiappero, case C-343/98), case law also implying a duty to disapply contrary national legislation purely on account of the obligation to achieve a result inherent to the very nature of the directive (CJEC, Ruiz Bernaldez, case C-129/94, ECR I-1829)".

Referring next to the conclusions drawn by Advocate General Léger in case C-287/98 (État du Grand-Duché de Luxembourg v Berthe Linster), the presiding judge explained the distinction between "ability to plead substitution" indicating the possibility for a party to rely, before the national court, on a directive instead and in place of a piece of national legislation which either does not exist or does not comply with the directive, and "ability to plead exclusion", enabling a party to challenge the regulation to be applied to it by invoking a directive in support of said application rather than requesting direct application thereof. Citing the conclusions of Advocate General Léger that "…accordingly, it must be possible to utilise the rights contained in an untransposed directive, regardless of their wording, where they are invoked to monitor the legality of regulations under domestic law", the presiding judge concluded:

"Given that the defendant is not referring to a subjective right or asking for any such right to be implemented but rather calling on the magistrate asked to rule on the case to verify the compliance of national law with Community law, which is liable to result in the national rule being declared invalid, the argument put forward by the applicant that the national judge could only issue an interpretation in accordance with national law concerning comparative publicity in light of the disputed Directive if the latter had been transposed into national law [...] was invalid. In fact, the failure to transpose all, part or insufficient of the provisions of a Directive into national law with the result that Community law did not have the desired effect was in breach of former Article 189(3) of the Treaty of Rome."

Noting also that by virtue of the "vertical" effect of Directives, individuals on trial may invoke the application of a Directive against bodies or entities which were subject to state authority or control, the presiding judge stated that in view of its own characteristics the applicant constituted a public authority in the same way as the State. Finally, citing the case law of the European Court of Justice concerning the required conditions on the specification and clarity in order to invoke the direct effect of Directives, the presiding judge concluded that:

"In the case in question, there was no dispute between the parties that the Directive was sufficiently precise to enable an individual [...] to invoke it against the State, and respectively, against the public establishment in question, namely the Entreprise publique des Postes et Télécommunications. Since the vertical system of invocation and the authorisation to invoke exclusion had been established, the terms of the new Article 3(a) of Council Directive 84/450/EEC [...] must be analysed."

Since the disputed comparative publicity had been ruled lawful within the meaning of the Directive, the application by the Entreprise publique des Postes et Télécommunications for an injunction against the alleged act of unfair competition was dismissed.

L - Loi du 27/11/1986 réglementant certaines pratiques commerciales et sanctionnant la concurrence déloyale, art. 16, 17, 18 et 21, modifiée

Loi du 10/08/1992 portant création de l'entreprise des postes et télécommunications, art. 1, 3, par. 2, 8, 12, 22, par. 1, 23, 24, 30, et 31, par. 1