Case C‑562/15

Carrefour Hypermarchés SAS

v

ITM Alimentaire International SASU

(Request for a preliminary ruling from the Cour d’appel de Paris)

(Reference for a preliminary ruling — Comparative advertising — Directive 2006/114/EC — Article 4 — Directive 2005/29/EC — Article 7 — Objective price comparison — Misleading omission — Advertising comparing the prices of goods sold in shops having different sizes or formats — Permissibility — Material information — Degree of communication of information and the medium for communication of that information)

Summary — Judgment of the Court (Second Chamber), 8 February 2017

Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Misleading omission — Misleading and comparative advertising — Directive 2006/114 — Advertising comparing the prices of goods sold in shops having different sizes or formats — Conditions for permissibility — Material information — Verification by the national court — Information needed for an assessment

(European Parliament and Council Directive 2005/29, Art. 7(1) to (3); European Parliament and Council Directive 2006/114, Art. 4(a) and (c))

Article 4(a) and (c) of Directive 2006/114 of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising, read in conjunction with Article 7(1) to (3) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that advertising, such as that at issue in the main proceedings, which compares the prices of products sold in shops having different sizes or formats, where those shops are part of retail chains each of which includes a range of shops having different sizes or formats and where the advertiser compares the prices charged in shops having larger sizes or formats in its retail chain with those displayed in shops having smaller sizes or formats in the retail chains of competitors, is liable to be unlawful, for the purposes of Article 4 of Directive 2006/114/EC, unless consumers are informed clearly and in the advertisement itself that the comparison was made between the prices charged in shops in the advertiser’s retail chain having larger sizes or formats and those indicated in the shops of competing retail chains having smaller sizes or formats.

In order to assess the lawfulness of such advertising, it is for the referring court, to ascertain whether, in the case in the main proceedings and in the light of the circumstances of the case, the advertising at issue satisfies the objective comparison requirement and/or is misleading, first, by taking into consideration the average consumer of the products in question who is reasonably well informed and reasonably observant and circumspect and, secondly, by taking into account the information contained in that advertising, in particular the information concerning the shops in the advertiser’s retail chain and those in the retail chains of competitors whose prices have been compared and, more generally, all of the elements in that advertising.

(see para. 40, operative part)