# C_2007096EN.01001101.xml

| 28.4.2007 | EN | Official Journal of the European Union | C 96/11 |
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28.4.2007

EN

Official Journal of the European Union

C 96/11

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Judgment of the Court (First Chamber) of 19 April 2007 (reference for a preliminary ruling from the Cour d'appel de Bruxelles, (Belgium)) — De Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne and Veuve Clicquot Ponsardin SA

(Case C-381/05) (1)

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(Directives 84/450/EEC and 97/55/EC - Comparative advertising - Identifying a competitor or the goods or services offered by a competitor - Goods or services satisfying the same needs or with the same purpose - Reference to designations of origin)

(2007/C 96/17)

Language of the case: French

Referring court

Cour d'appel de Bruxelles

Parties to the main proceedings

Appellant: De Landtsheer Emmanuel SA

Appellant:

Respondents: Comité Interprofessionnel du Vin de Champagne and Veuve Clicquot Ponsardin SA

Respondents:

Re:

Reference for a preliminary ruling — Cour d'appel de Bruxelles (Brussels Court of Appeal) — Interpretation of Article 2(2a) and Article 3a(b) of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17), as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising (OJ 1997 L 290, p. 18) — Comparative advertising — Identification of a competitor or of the goods or services offered by a competitor — Use for advertising a beer of terms referring to characteristics of sparkling wines and, more specifically, Champagne

Operative part of the judgment

| 1. | Article 2(2a) 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, is to be interpreted as meaning that a reference in an advertisement to a type of product and not to a specific undertaking or product can be considered to be comparative advertising where it is possible to identify that undertaking or the goods that it offers as being actually referred to by the advertisement. The fact that a number of the advertiser's competitors or the goods or services that they offer may be identified as being in fact referred to by the advertisement is of no relevance for the purpose of recognising the comparative nature of the advertising. |
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1.

Article 2(2a) 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, is to be interpreted as meaning that a reference in an advertisement to a type of product and not to a specific undertaking or product can be considered to be comparative advertising where it is possible to identify that undertaking or the goods that it offers as being actually referred to by the advertisement. The fact that a number of the advertiser's competitors or the goods or services that they offer may be identified as being in fact referred to by the advertisement is of no relevance for the purpose of recognising the comparative nature of the advertising.

| 2. | The existence of a competitive relationship between the advertiser and the undertaking identified in the advertisement cannot be established independently of the goods or services offered by that undertaking.
  In order to determine whether there is a competitive relationship between the advertiser and the undertaking identified in the advertisement, it is necessary to consider:






  — | the current state of the market and consumer habits and how they might evolve, |
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2.

The existence of a competitive relationship between the advertiser and the undertaking identified in the advertisement cannot be established independently of the goods or services offered by that undertaking.

In order to determine whether there is a competitive relationship between the advertiser and the undertaking identified in the advertisement, it is necessary to consider:

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the current state of the market and consumer habits and how they might evolve,

| — | the part of the Community territory in which the advertising is disseminated, without, however, excluding, where appropriate, the effects which the evolution of consumer habits seen in other Member States may have on the national market at issue, and |
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the part of the Community territory in which the advertising is disseminated, without, however, excluding, where appropriate, the effects which the evolution of consumer habits seen in other Member States may have on the national market at issue, and

| — | the particular characteristics of the product which the advertiser seeks to promote and the image which it wishes to impart to it. |
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the particular characteristics of the product which the advertiser seeks to promote and the image which it wishes to impart to it.

The criteria for establishing the existence of a competitive relationship within the meaning of Article 2(2a) of Directive 84/450, as amended by Directive 97/55, are not identical to those for determining whether the comparison fulfils the condition in Article 3a(1)(b) of the same directive.

| 3. | Advertising which refers to a type of product without thereby identifying a competitor or the goods which it offers is not impermissible with regard to Article 3a(1) of Directive 84/450, as amended by Directive 97/55. The conditions governing whether such advertising is permissible must be assessed in the light of other provisions of national law or, where appropriate, of Community law, irrespective of the fact that that could mean a lower level of protection for consumers or competing undertakings. |
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3.

Advertising which refers to a type of product without thereby identifying a competitor or the goods which it offers is not impermissible with regard to Article 3a(1) of Directive 84/450, as amended by Directive 97/55. The conditions governing whether such advertising is permissible must be assessed in the light of other provisions of national law or, where appropriate, of Community law, irrespective of the fact that that could mean a lower level of protection for consumers or competing undertakings.

| 4. | Article 3a(1)(f) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that, for products without designation of origin, any comparison which relates to products with designation of origin is not impermissible. |
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4.

Article 3a(1)(f) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that, for products without designation of origin, any comparison which relates to products with designation of origin is not impermissible.

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(1)  OJ C 10, 14.1.2006.

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