# C_2006281EN.01000702.xml

| 18.11.2006 | EN | Official Journal of the European Union | C 281/7 |
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18.11.2006

EN

Official Journal of the European Union

C 281/7

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Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel, Belgium) — Lidl Belgium GmbH & Co KG v Etablissementen Franz Colruyt NV

(Case C-356/04) (1)

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(Directives 84/450/EEC and 97/55/EC - Misleading advertising - Comparative advertising - Conditions under which comparative advertising is permitted - Comparison of the general level of the prices charged by chains of stores - Comparison of the prices of a selection of products)

(2006/C 281/12)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Brussel

Parties to the main proceedings

Applicant: Lidl Belgium GmbH & Co KG

Applicant:

Defendant: Etablissementen Franz Colruyt NV

Defendant:

Re:

Reference for a preliminary ruling — Rechtbank van Koophandel te Brussel — Interpretation of Article 3a(1)(a), (b) and (c) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (OJ 1984 L 250, p. 17), as inserted by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 290, p. 18) — Comparative advertising — Comparison of the general level of prices of an advertiser with that of its competitors without any indication as to which products have been compared in regard to their prices.

Operative part of the judgment

| 1. | The condition under which comparative advertising is permissible that is laid down by Article 3a(1)(b) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising, as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997, must be interpreted as not precluding comparative advertising from relating collectively to selections of basic consumables sold by two competing chains of stores in so far as those selections each consist of individual products which, when viewed in pairs, individually satisfy the requirement of comparability laid down by that provision. |
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1.

The condition under which comparative advertising is permissible that is laid down by Article 3a(1)(b) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising, as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997, must be interpreted as not precluding comparative advertising from relating collectively to selections of basic consumables sold by two competing chains of stores in so far as those selections each consist of individual products which, when viewed in pairs, individually satisfy the requirement of comparability laid down by that provision.

| 2. | Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the requirement, laid down by that provision, that the advertising ‘objectively compares’ the features of the goods at issue does not signify, in the event of comparison of the prices of a selection of comparable basic consumables sold by competing chains of stores or of the general level of the prices charged by them in respect of the range of comparable products which they sell, that the products and prices compared, that is to say both those of the advertiser and those of all of his competitors involved in the comparison, must be expressly and exhaustively listed in the advertisement. |
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2.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the requirement, laid down by that provision, that the advertising ‘objectively compares’ the features of the goods at issue does not signify, in the event of comparison of the prices of a selection of comparable basic consumables sold by competing chains of stores or of the general level of the prices charged by them in respect of the range of comparable products which they sell, that the products and prices compared, that is to say both those of the advertiser and those of all of his competitors involved in the comparison, must be expressly and exhaustively listed in the advertisement.

| 3. | Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the following constitute, for the purposes of that provision, ‘verifiable’ features of goods sold by two competing chains of stores:






  — | the prices of those goods; |
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3.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the following constitute, for the purposes of that provision, ‘verifiable’ features of goods sold by two competing chains of stores:

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the prices of those goods;

| — | the general level of the respective prices charged by such chains of stores in respect of their selection of comparable products and the amount liable to be saved by consumers who purchase such products from one rather than the other of those chains, in so far as the goods in question do in fact form part of the selection of comparable products on whose basis that general price level has been determined. |
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the general level of the respective prices charged by such chains of stores in respect of their selection of comparable products and the amount liable to be saved by consumers who purchase such products from one rather than the other of those chains, in so far as the goods in question do in fact form part of the selection of comparable products on whose basis that general price level has been determined.

| 4. | Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that a feature mentioned in comparative advertising satisfies the requirement of verifiability laid down by that provision, in cases where the details of the comparison which form the basis for the mention of that feature are not set out in the advertising, only if the advertiser indicates, in particular for the attention of the persons to whom the advertisement is addressed, where and how they may readily examine those details with a view to verifying, or, if they do not possess the skill required for that purpose, to having verified, the details and the feature in question as to their accuracy. |
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4.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that a feature mentioned in comparative advertising satisfies the requirement of verifiability laid down by that provision, in cases where the details of the comparison which form the basis for the mention of that feature are not set out in the advertising, only if the advertiser indicates, in particular for the attention of the persons to whom the advertisement is addressed, where and how they may readily examine those details with a view to verifying, or, if they do not possess the skill required for that purpose, to having verified, the details and the feature in question as to their accuracy.

| 5. | Article 3a(1)(a) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that comparative advertising claiming that the advertiser's general price level is lower than his main competitors', where the comparison has related to a sample of products, may be misleading when the advertisement:






  — | does not reveal that the comparison related only to such a sample and not to all the advertiser's products, |
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5.

Article 3a(1)(a) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that comparative advertising claiming that the advertiser's general price level is lower than his main competitors', where the comparison has related to a sample of products, may be misleading when the advertisement:

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does not reveal that the comparison related only to such a sample and not to all the advertiser's products,

| — | does not identify the details of the comparison made or inform the persons to whom it is addressed of the information source where such identification is possible, or |
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does not identify the details of the comparison made or inform the persons to whom it is addressed of the information source where such identification is possible, or

| — | contains a collective reference to a range of amounts that may be saved by consumers who make their purchases from the advertiser rather than from his competitors without specifying individually the general level of the prices charged, respectively, by each of those competitors and the amount that consumers are liable to save by making their purchases from the advertiser rather than from each of the competitors. |
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contains a collective reference to a range of amounts that may be saved by consumers who make their purchases from the advertiser rather than from his competitors without specifying individually the general level of the prices charged, respectively, by each of those competitors and the amount that consumers are liable to save by making their purchases from the advertiser rather than from each of the competitors.

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(1)  OJ C 273, 6.11.2004.

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