Keywords
Summary

Keywords

1. Approximation of laws – Misleading and comparative advertising – Directive 84/450 – Comparative advertising – Conditions on which it is permitted

(Council Directive 84/450, Art. 3a(1)(b))

2. Approximation of laws – Misleading and comparative advertising – Directive 84/450 – Comparative advertising – Conditions on which it is permitted

(Council Directive 84/450, Art. 3a(1)(a))

3. Approximation of laws – Misleading and comparative advertising – Directive 84/450 – Comparative advertising – Conditions on which it is permitted

(Council Directive 84/450, Art. 3a(1)(c))

Summary

1. Article 3a(1)(b) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, is to be interpreted as meaning that the fact alone that food products differ in terms of the extent to which consumers would like to eat them and the pleasure to be derived from consuming them, according to the conditions and place of production, their ingredients and who produced them, cannot preclude the possibility that the comparison of such products may meet the requirement laid down in that provision that the products compared meet the same needs or are intended for the same purpose, that is to say, that they display a sufficient degree of interchangeability.

There is nothing in the wording of Article 3a(1)(b) of Directive 84/450 to justify that provision’s being interpreted as prohibiting comparative advertising relating to food products unless such products are identical, which would, by means of a broad interpretation of the condition governing whether comparative advertising is permitted, lead to a considerable restriction of the scope of comparative advertising. Thus, to decide that, unless they are identical, two food products cannot be regarded as comparable within the meaning of Article 3a(1)(b) of Directive 84/450 would effectively rule out any real possibility of comparative advertising regarding a particularly important category of consumer goods, irrespective of the angle from which the comparison is made. The outcome of such a prohibition would therefore run counter to the Court’s settled case‑law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it.

The specific assessments as to whether there is a sufficient degree of interchangeability between the food products that are the subject of the comparison fall within the jurisdiction of the national court.

(see paras 34-40, operative part)

2. Article 3a(1)(a) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, is to be interpreted as meaning that an advertisement comparing the prices of food products marketed by two competing retail store chains may be misleading, in particular if:

– it is found, in the light of all the relevant circumstances of the particular case, in particular the information contained in or omitted from the advertisement, that the decision to buy on the part of a significant number of consumers to whom the advertisement is addressed may be made in the mistaken belief that the selection of goods made by the advertiser is representative of the general level of his prices as compared with those charged by his competitor and that such consumers will therefore make savings of the kind claimed by the advertisement by regularly buying their everyday consumer goods from the advertiser rather than from the competitor, or in the mistaken belief that all of the advertiser’s products are cheaper than those of his competitor, or

– it is found that, for the purposes of a comparison based solely on price, food products were selected which, nevertheless, have different features capable of significantly affecting the average consumer’s choice, without such differences being apparent from the advertising concerned.

(see para. 56, operative part)

3. Article 3a(1)(c) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, is to be interpreted as meaning that the condition of verifiability set out in that provision requires, in the case of an advertisement which compares the prices of two selections of goods, it to be possible to identify the goods in question on the basis of information contained in the advertisement.

Such identification makes it possible, in accordance with the objective of consumer protection pursued by Directive 84/450, for the persons to whom an advertisement of that kind is addressed to be in a position to satisfy themselves that they have been correctly informed with regard to the purchases of basic consumables which they are prompted to make.

It is for the national court to verify whether the description of the products compared is sufficiently clear to enable the consumer to identify the products being compared for the purpose of checking the accuracy of the prices shown in the advertisement.

(see paras 61-62, 64, operative part)