A new CJEC’s judgement on comparative advertising

With the Carrefour judgement of February 8, 2017 (case C-562/15), the Court of Justice of the European Communities (CJEC) gave its judgment on comparative advertising, indicating, for the first time, the limits within which companies can advertise comparing their own prices to those of the competitors concerning  the same products.

In particular, the case submitted to the CJEC was related to the advertising campaign launched by the Carrefour group in which the prices of 500 products of some leading brands in Carrefour shops and in the shops of competitors, among which Intermarché, were compared. The prices of the products sold by Intermarché were said higher than those of Carrefour, but the Intermarché shops taken into consideration were supermarkets whereas the Carrefour shops were superstores.

The preliminary question, addressed to the CJEC, concerned the interpretation of Article 4 of Directive 2006/114 concerning misleading and comparative advertising which provides that comparative advertising shall be permitted when it is not misleading and there is an objective comparison. The Court explained that the comparison of prices of goods sold in shops having different sizes or formats may be considered licit, according to the abovementioned rule, only when there is an objective and not misleading comparison of prices.

However, in certain circumstances the difference in size and format of the shops where the prices being compared by the advertiser have been identified threatens the objectivity of the comparison. This may be the case in which the advertiser and the competitors whose prices have been identified belong to retail chains which each have a range of shops of different formats and sizes and the advertiser compares the prices charged in shops in its retail chain having larger sizes and formats with those of shops in the competitors’ chain having smaller sizes and formats.

Thus, the CJEC concluded that this could be a case of misleading advertising, unless the consumer is not conveniently informed of the difference in size of the shops whose prices are compared.

Finally, the CJEC argued that it is the national judge duty, on the basis of the circumstances of this case, to verify whether or not comparative advertising apply the condition of objectiveness in the comparison taking into consideration the average consumer.

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