Opinion of the Advocate General — ECLI:EU:C:2006:206
Date: 2006-03-29
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Approximation of laws – Misleading advertising and comparative advertising – Directive 84/450 (Council Directive 84/450, Art. 3a(1)(b)) 2. Approximation of laws – Misleading advertising and comparative advertising – Directive 84/450 (Council Directive 84/450, Art. 3a(1)(c)) 3. Approximation of laws – Misleading advertising and comparative advertising – Directive 84/450 (Council Directive 84/450, Art. 3a(1)(c)) 4. Approximation of laws – Misleading advertising and comparative advertising – Directive 84/450 (Council Directive 84/450, Art. 3a(1)(c)) 5. Approximation of laws – Misleading advertising and comparative advertising – Directive 84/450 (Council Directive 84/450, Art. 3a(1)(a)) 1. The condition under which comparative advertising is permissible that is laid down by Article 3a(1)(b) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, according to which, if comparative advertising is to be permitted, the goods or services being compared must meet the same needs or be intended for the same purpose, 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. The possibility of making a collective comparison relating to a selection of comparable products allows the advertiser to provide consumers with advertising information containing global and summarised data that may prove particularly useful to them. That is especially true in a sector such as the mass distribution sector in which consumers usually make multiple purchases designed to meet their everyday needs. From the viewpoint of such purchases, comparative information relating to the general level of the prices charged by chains of stores or to the level of the prices charged by them in respect of a given selection of products which they sell is liable to prove more useful to consumers than comparative information limited to the prices of some particular product or other. (see paras 34-35, 39, operative part 1) 2. The requirement, laid down by Article 3a(1)(c) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, that the advertising ‘objectively compares’ the features of the goods at issue must be interpreted as not signifying, 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. (see para. 54, operative part 2) 3. Article 3a(1)(c) of Directive 84/450 concerning misleading and comparative advertising, 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; - 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. (see para. 62, operative part 3) 4. Article 3a(1)(c) of Directive 84/450 concerning misleading and comparative advertising, 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. Such an obligation makes it possible, in accordance with the objective of consumer protection pursued by the directive, for the persons to whom an advertisement of that kind is addressed to be in a position to satisfy themselves that they have been correctly informed with regard to the purchases of basic consumables which they are prompted to make. (see paras 71-72, 74, operative part 4) 5. Article 3a(1)(a) of Directive 84/450 concerning misleading and comparative advertising, 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, - 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. It is for the referring court to determine whether the advertisements at issue in the main proceedings display such characteristics. (see paras 85-86, operative part 5)