Opinion of the Advocate General — ECLI:EU:C:2002:482
Date: 2002-09-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Definition — Same rules to be applied to 
the various elements of comparison 
(Council Directive 84/450, Art. 2(2» 
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SUMMARY — CASE C-44/01 
2. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Stricter national provisions on misleading 
advertising — Not applicable to comparative advertising 
(Council Directive 84/450, Arts 3a and 7) 
3. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Indication of a competitor's trade mark — 
Option open to the advertiser — Limits 
(Council Directive 84/450, Art. 3a(1)) 
4. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Purchase of the products compared through 
different distribution channels — Whether permissible 
(Council Directive 84/450, Art. 3a(1)) 
5. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Test purchase by the advertiser from a 
competitor before the commencement of his offer — Whether permissible 
(Council Directive 84/450, Art. 3a) 
6. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Reproduction in the advertising message of 
the name and logo of a competitor with a picture of its shop front — Whether 
permissible 
(Council Directive 84/450, Art. 3a(1)(e)) 
7. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Price comparison — No discrediting of a 
competitor even where attention is drawn to a price difference on a product that is 
greater than the average difference across products as a whole 
(Council Directive 84/450, Art. 3a(1)(e)) 
1. The definition of comparative advertis­
ing in Article 2(2) of Directive 84/450 
on misleading and comparative adver­
tising, as amended by Directive 97/55, 
covers all forms of comparative adver­
tising, so that, in order for there to be 
comparative advertising, it is sufficient 
for there to be a statement referring 
even by implication to a competitor or 
to the goods or services which he 
offers. Therefore, in the context of 
Directive 84/450, it is not necessary 
to establish distinctions in the legis­
lation between various elements of 
comparison, that is to say the state­
ments concerning the advertiser's offer, 
the statements concerning the competi-
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PIPPIG AUGENOPTIK 
tor's offer, and the relationship 
between those two offers. 
(see paras 35, 37) 
2. Article 7(2) of Directive 84/450 on 
misleading and comparative advertis­
ing, as amended by Directive 97/55, 
precludes the application to com­
parative advertising of stricter national 
provisions on protection against mis­
leading advertising as far as the form 
and content of the comparison is con­
cerned, without there being any need to 
establish distinctions between the vari­
ous elements of the comparison, that is 
to say statements concerning the adver­
tiser's offer, statements concerning the 
competitor's offer and the relationship 
between those offers. 
That directive carried out an exhaus­
tive harmonisation of the conditions 
under which comparative advertising 
in Member States might be lawful, so 
that such lawfulness must be assessed 
solely in the light of the criteria laid 
down by the Community legislature. 
(see paras 42, 44, operative part 1) 
3. In the context of comparative advertis­
ing, where there is compliance with the 
conditions set out in Article 3a(1) of 
Directive 84/450 on misleading and 
comparative advertising, as amended 
by Directive 97/55, namely that such 
advertising does not create confusion in 
the market place between the brand 
names of the advertiser and those of a 
competitor, that it does not discredit or 
denigrate the brands of a competitor, 
and that it does not take unfair advan­
tage of the reputation of a competitor's 
brand, it is open to an advertiser to 
state the trade mark of a competitor's 
products. There are, however, cases 
where the brand name, of the products 
may significantly affect the buyer's 
choice, and where the comparison 
concerns rival products whose respect­
ive brand names differ considerably in 
the extent to which they are known the 
omission of the better-known brand 
name goes against Article 3a(1)(a) of 
Directive 84/450, which lays down one 
of the conditions for comparative 
advertising to be lawful. It is for the 
national court to verify in each case, 
having regard to all the relevant factors 
of the case which is brought before it, 
whether the conditions for comparative 
advertising to be lawful are met, taking 
into account the presumed expec­
tations of an average consumer who is 
reasonably well informed and reason­
ably observant and circumspect. 
(see paras 47, 49, 53, 55, operative part 2) 
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SUMMARY — CASE C-44/01 
4. Article 3a(l) of Directive 84/450 on 
misleading and comparative advertis­
ing, as amended by Directive 97/55, 
does not preclude compared products 
from being purchase through different 
distribution channels. The conditions 
set out in that provisions under which 
comparative advertising may be lawful 
do not include a requirement that the 
compared products be obtained 
through the same distribution chan­
nels. Moreover, such a condition 
would be contrary both to the objec­
tives of the internal market and to 
those of Directive 84/450. 
(see paras 61-62, operative part 3) 
5. Article 3a(l) of Directive 84/450 on 
misleading and comparative advertis­
ing, as amended by Directive 97/55, 
does not preclude an advertiser from 
carrying out a test purchase with a 
competitor before his own offer has 
even commenced, where the conditions 
for the lawfulness of comparative 
advertising set out therein are complied 
with. It is for the national court to 
verify whether the advertising message 
complied with those conditions. 
(see paras 70-71, operative part 4) 
6. Article 3a(l)(e) of Directive 84/450 on 
misleading and comparative advertis­
ing, as amended by Directive 97/55, 
does not prevent comparative advertis­
ing, in addition to citing the competi­
tor's name, from reproducing its logo 
and a picture of its shop front, if that 
advertising complies with the con­
ditions for lawfulness laid down by 
Community law. 
(see paras 83-84, operative part 5) 
7. A price comparison does not entail the 
discrediting of a competitor, within the 
meaning of Article 3a(l)(e) of Directive 
84/450 on misleading and comparative 
advertising, as amended by Directive 
97/55, either on the grounds that the 
difference in price between the prod­
ucts compared is greater than the aver­
age price difference or by reason of the 
number of comparisons made. 
(see para. 84, operative part 5) 
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