EN Official Journal of the European Union C 13/9

Judgment of the Court (Fourth Chamber) of 18 November 2010 (reference for a preliminary ruling from the Tribunal de commerce de Bourges — France) — Lidl SNC v Vierzon Distribution SA

(Case C-159/09) (1)

(Directives 84/450/EEC and 97/55/EC - Conditions under which a comparative advertising is permitted - Price comparison based on selection of food products marketed by two competing retail store chains - Goods meeting the same needs or intended for the same purpose - Misleading advertising - Comparison based on a verifiable feature)

2011/C 13/13

Language of the case: French

Referring court

Tribunal de commerce de Bourges

Parties to the main proceedings

Applicant: Lidl SNC

Defendant: Vierzon Distribution SA

Re:

Reference for a preliminary ruling — Tribunal de commerce de Bourges — Interpretation of Article 3a of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (OJ 1984 L 250, p. 17), as amended by Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 (OJ 1997 L 290, p. 18) — Conditions under which comparative advertising is permitted — Comparison of prices charged by a competing chain of stores — Goods meeting the same needs or intended for the same purpose

Operative part of the judgment

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, is to be interpreted as meaning that the fact alone that food products differ in terms of the extent to which consumers would like to eat them and the pleasure to be derived from consuming them, according to the conditions and place of production, their ingredients and who produced them, cannot preclude the possibility that the comparison of such products may meet the requirement laid down in that provision that the products compared meet the same needs or are intended for the same purpose, that is to say, that they display a sufficient degree of interchangeability.

Article 3a(1)(a) of Directive 84/450, as amended by Directive 97/55, is to be interpreted as meaning that an advertisement such as that at issue in the main proceedings may be misleading, in particular if:

— it is found, in the light of all the relevant circumstances of the particular case, in particular the information contained in or omitted from the advertisement, that the decision to buy on the part of a significant number of consumers to whom the advertisement is addressed may be made in the mistaken belief that the selection of goods made by the advertiser is representative of the general level of his prices as compared with those charged by his competitor and that such consumers will therefore make savings of the kind claimed by the advertisement by regularly buying their everyday consumer goods from the advertiser rather than the competitor, or in the mistaken belief that all of the advertiser’s products are cheaper than those of his competitor, or

— it is found that, for the purposes of a comparison based solely on price, food products were selected which, nevertheless, have different features capable of significantly affecting the average consumer’s choice, without such differences being apparent from the advertising concerned.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, is to be interpreted as meaning that the condition of verifiability set out in that provision requires, in the case of an advertisement, such as that at issue in the main proceedings, which compares the prices of two selections of goods, that it must be possible to identify the goods in question on the basis of information contained in the advertisement.

(1) OJ C 180, 01.08.2009.