ECJ Directives 84/450/EEC and 97/55/EC – Conditions under which a comparative advertising is permitted – Price comparison based on selection of food products marketed by two competing retail store chains – Goods meeting the same needs or intended for the same purpose – Misleading advertising – Comparison based on a verifiable feature
The court summarised the principles in Directive 84/450/EEC:
i) The aim of Article [4] was to stimulate competition to the consumer’s advantage by allowing competitors to highlight objectively the merits of comparable products whilst prohibiting the practices which might distort competition and have an adverse effect on consumer choice. The conditions in the Directive had to be interpreted in the sense most favourable to permitting advertisements which objectively compared the characteristics of goods or services, while ensuring at the same time that comparative advertising was not used anti-competitively or unfairly, or in a manner which affected the interests of consumers. The comparing of rival offers, particularly as regards to price, was inherent in comparative advertising. The comparison of the price only of goods and services should be possible if that comparison respected certain conditions, in particular that it not be misleading.
ii) Article [4] provided that, if comparative advertising was to be permitted, the comparison must relate to goods or services which met the same needs or were intended for the same purpose. That condition implied that the goods being compared had to display a sufficient degree of inter-changeability for consumers. The angle from which the comparison was made, namely price in the present case, had no bearing on whether two products met the condition provided for by the Article.
iii) In order to prevent comparative advertising being used in an anti-competitive and unfair manner, only comparisons between competing goods and services meeting the same needs or intended for the same purpose should be permitted. The key element of comparative advertising was the identification of a competitor of the advertiser or of the goods and services which it offered. The fact that products were, to a certain extent, capable of meeting identical needs led to the conclusion that there was a certain degree of substitution for one another. However, before it could be concluded that there was a real possibility of substitution, in accordance with the Article, an individual and specific assessment of products which were specifically the subject of the comparison in the advertisement was necessary. Such a specific assessment of the degree of substitution fell within the jurisdiction of the national courts.
iv) There was nothing in the wording of Article [4b] to suggest an interpretation which would prohibit comparative advertising relating to food products unless such products were identical. Such a prohibition would lead to a considerable restriction on the scope of comparative advertising and would rule out a real possibility of comparative advertising regarding a particularly important category of consumer goods, irrespective of the angle from which the comparison was made. Such a prohibition would run counter to the court’s established case law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it.
v) Article [4b] was to be interpreted as meaning that the fact alone that food products differed, in terms of the extent to which the consumers would like to eat them and the pleasure to be derived from consuming them, according to the conditions and the place of production, their ingredients and who produced them, could not preclude the possibility that the comparison of such products might meet the requirement laid down in that provision that the products compared met the same needs or were intended for the same purpose, that is to say, that they displayed a sufficient degree of interchangeability.
vi) Article [4a] provided that if comparative advertising was to be permitted the comparison must not be misleading as defined by the other Articles within the Directive.
vii) It was for the referring court to ascertain, in the circumstances of each particular case and bearing in mind the consumers to which such advertising was addressed, whether the latter might be misleading. That court must first take into account the perception of the average consumer of the products or services being advertised who is reasonably well-informed and reasonably observant and circumspect. As regards an advertisement such as that at issue, it was not disputed that it was addressed not to a specialist public but to end consumers who purchased their basic consumables in a chain of stores. In carrying out the requisite assessment, the national court must also take account of all the relevant factors in the case, having regard to the information contained in the advertisement at issue and more generally to all its features.
viii) An advertisement such as that at issue could also be misleading if the referring court found that, for the purposes of the price based comparison in the advertisement, food products were selected which were in fact objectively different and the differences were capable of significantly affecting the buyer’s choice. If such differences were not disclosed such advertising, where it was based solely on price, might be perceived by the average consumer as claiming, by implication, that the other characteristics of the products in question, which might also have a significant effect on the choices made by such a consumer, were equivalent. In such cases, the fact that the consumer was not informed of the differences between the products being compared in terms of price alone might deceive the consumer as to the reasons for the difference in prices claimed and the financial advantage that could in fact be obtained by the consumer by buying his goods from the advertiser rather than from a given competitor and have a corresponding effect on the consumer’s economic behaviour. The latter might just be led to believe that he would in fact obtain an economic advantage because of the competitive nature of the advertisers offer and not because of objective differences between the products being compared.
J-C Bonichot, P
[2010] EUECJ C-159/09, [2011] ETMR 6, [2011] CEC 687, [2011] 2 CMLR 10
Bailii
Directive 84/450/EEC, Directive 97/55/EC
European
Citing:
Opinion – Lidl SNC v Vierzon Distribution SA ECJ 7-Sep-2010
ECJ Opinion – Environment And Consumers – Comparative Advertising – Comparison of prices that a competing supermarket chain – Products meeting the same needs or having a common goal. . .
Cited by:
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v The Independent Reviewer of Advertising Standards Authority Adjudications Admn 10-Nov-2014
The two supermarkets had price matching comparison schemes. Sainburys complained that the Independent Reviewer’s decsion that the ASA’s response to is complant as to the Tesco scheme was itself flawed. They had complained that the selections for . .
Lists of cited by and citing cases may be incomplete.
Media
Updated: 23 December 2021; Ref: scu.538695
