# C_2004273EN.01001201.xml

| 6.11.2004 | EN | Official Journal of the European Union | C 273/12 |
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6.11.2004

EN

Official Journal of the European Union

C 273/12

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Reference for a preliminary ruling by the Rechtbank van Koophandel te Brussel by decision of that court of 29 July 2004 in the case of Lidl Belgium GmbH & Co KG against NV Etablissementen Franz Colruyt

(Case C-356/04)

(2004/C 273/23)

Reference has been made to the Court of Justice of the European Communities by decision of the Rechtbank van Koophandel te Brussel (Brussels Commercial Court) of 29 July 2004, received at the Court Registry on 18 August 2004, for a preliminary ruling in the case of Lidl Belgium GmbH & Co KG against NV Etablissementen Franz Colruyt on the following questions:

| 1. | Must Article 3a(1)(a) of Directive 84/450/EEC (1) (as introduced by Directive 97/55/EC (2) 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) be construed as meaning that the comparison of the general price level of advertisers with that of competitors, in which an extrapolation is made on the basis of a comparison of the prices of a sample of products, is impermissible inasmuch as this creates the impression that the advertiser is cheaper over its entire range of products, whereas the comparison made relates only to a limited sample of products, unless the advertisement makes it possible to establish which and how many products of the advertiser, on the one hand, and of the competitors used in the comparison, on the other, have been compared, and makes it possible to ascertain where each competitor concerned by the comparison is positioned in the comparison and what its prices might be in comparison with those of the advertiser and of the other competitors used in the comparison? |
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1.

Must Article 3a(1)(a) of Directive 84/450/EEC (1) (as introduced by Directive 97/55/EC (2) 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) be construed as meaning that the comparison of the general price level of advertisers with that of competitors, in which an extrapolation is made on the basis of a comparison of the prices of a sample of products, is impermissible inasmuch as this creates the impression that the advertiser is cheaper over its entire range of products, whereas the comparison made relates only to a limited sample of products, unless the advertisement makes it possible to establish which and how many products of the advertiser, on the one hand, and of the competitors used in the comparison, on the other, have been compared, and makes it possible to ascertain where each competitor concerned by the comparison is positioned in the comparison and what its prices might be in comparison with those of the advertiser and of the other competitors used in the comparison?

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| 2. | Must Article 3a(1)(b) of Directive 84/450/EEC (as introduced 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) be construed as meaning that comparative advertising is allowed only if the comparison relates to individual goods or services that meet the same needs or are intended for the same purpose, with the exclusion of product selections, even if those selections, on the whole and not necessarily in regard to every sub-division, meet the same needs or are intended for the same purpose? |
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2.

Must Article 3a(1)(b) of Directive 84/450/EEC (as introduced 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) be construed as meaning that comparative advertising is allowed only if the comparison relates to individual goods or services that meet the same needs or are intended for the same purpose, with the exclusion of product selections, even if those selections, on the whole and not necessarily in regard to every sub-division, meet the same needs or are intended for the same purpose?

| 3. | Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced 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) be construed as meaning that comparative advertising in which a comparison of the prices of products, or of the general price level, of competitors is made will be objective only if it lists the products and prices of the advertiser and those of all the competitors in the comparison that are being compared and makes it possible to ascertain the prices being charged by the advertiser and its competitors, in which case all products used in the comparison must be expressly indicated for each individual supplier? |
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3.

Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced 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) be construed as meaning that comparative advertising in which a comparison of the prices of products, or of the general price level, of competitors is made will be objective only if it lists the products and prices of the advertiser and those of all the competitors in the comparison that are being compared and makes it possible to ascertain the prices being charged by the advertiser and its competitors, in which case all products used in the comparison must be expressly indicated for each individual supplier?

| 4. | Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced 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) be construed as meaning that a feature in comparative advertising will satisfy the requirement of verifiability in that article only if that feature can be verified as to its accuracy by those to whom the advertising is addressed, or is it sufficient if the feature can be verified by third parties to whom the advertising is not addressed? |
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4.

Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced 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) be construed as meaning that a feature in comparative advertising will satisfy the requirement of verifiability in that article only if that feature can be verified as to its accuracy by those to whom the advertising is addressed, or is it sufficient if the feature can be verified by third parties to whom the advertising is not addressed?

| 5. | Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced 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) be construed as meaning that the price of products and the general price level of competitors are in themselves verifiable features? |
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5.

Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced 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) be construed as meaning that the price of products and the general price level of competitors are in themselves verifiable features?

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(1)  OJ L 250 of 19.9.1984, p. 17-20.

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(2)  OJ L 290 of 23.10.1997, p. 18-23.

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