Case C-44/01: Reference for a preliminary ruling by the Oberste Gerichtshof by order of 19 December 2000 in the case of Pippig Augenoptik GmbH & Co KG v 1. Hartlauer Handelsgesellschaft mbH and 2. Estate of Franz Josef Hartlauer
Date: 2001-04-21
Institutions: Court of Justice
Subjects: advertising, advertising malpractice, competition law, interpretation of the law

C 118/10

EN

Official Journal of the European Communities

21.4.2001

If not:

(2) Are the provisions contained in Articles 1 and 4 of
Council Regulation (EEC) No 3950/92 of 28 December
1992 and Articles 3 and 4 of Commission Regulation
(EEC) No 534/93 of 9 March 1993 valid, in the light of
Article 33 (ex 39) of the Treaty, in so far as they do not
provide that derogations may be made from the periods
prescribed by those provisions for the allocation of
individual reference quantities, for adjustments and levies
in cases of administrative or judicial challenge to those
provisions?

(3)

is not possible, does the
If retrospective adjustment
Community legislation permit
the Member State to
assume responsibility for paying the sums owed to the
Community without incurring liability to penalties?

(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.3.1993, p. 12.

Reference for a preliminary ruling by the Oberste Ge-
richtshof by order of 19 December 2000 in the case of
Pippig Augenoptik GmbH & Co KG v 1. Hartlauer
Handelsgesellschaft mbH and 2. Estate of Franz Josef
Hartlauer

(Case C-44/01)

(2001/C 118/15)

Reference has been made to the Court of Justice of the
European Communities by order of 19 December 2000 by the
Oberste Gerichtshof
(Supreme Court), Austria, which was
received at the Court Registry on 2 February 2001, for a
preliminary ruling in the case of Pippig Augenoptik GmbH &
Co. KG v 1. Hartlauer Handelsgesellschaft mbH and 2. Estate
of Franz Josef Hartlauer on the following questions:

1.

to be interpreted to the effect

Is Article 7(2) of Directive 97/55/EC (1) of the European
the Council of 6 October 1997
Parliament and of
amending Directive 84/450/EEC (2) concerning mislead-
ing advertising so as to include comparative advertising
(‘the directive’)
that
‘comparative advertising, as far as the comparison is
concerned’ means the statements regarding the product
offered by the advertiser himself, the statements regarding
the product offered by the competitor and the statements
regarding the relationship between the two products (the
result of the comparison)? Or is there a ‘comparison’
within the meaning of Article 7(2) of the directive only
in so far as the statements are made regarding the
result of the comparison, with the consequence that
misconceptions regarding other features of the compared
goods/services may be assessed on the basis of a national
standard governing misleading statements which is poss-
ibly more strict?

Is the reference in Article 3a(1)(a) of the directive to
Article 7(1) of the directive a lex specialis in relation to
Article 7(2) of the directive, with the result that a national
standard governing misleading statements which is poss-
ibly more strict may be applied to all elements of the
comparison?

Is Article 3a(1)(a) of the directive to be interpreted as
meaning that the comparison of the price of a brand-
name product with the price of a no-name product of
equivalent quality is not permitted where the name of the
manufacturer is not indicated, or do Article 3a(1)(c) and
Article 3a(1)(g) of the directive preclude indication of the
manufacturer? Is the image of a (brand-name) product a
feature of the product/service within the meaning of
Article 3a(c) of the directive? Does it follow from a
(possible) negative answer to this question that any (price)
comparison of a brand-name product with a no-name
product of equivalent quality is not permitted?

2.

Is Article 7(2) of the directive to be interpreted as meaning
that differences in the procurement of the product/service
whose features are compared with features of the adver-
tiser’s product/service must also be assessed solely on the
basis of Article 3a of the directive?

If this question is answered in the affirmative:

Is Article 3a of the directive to be interpreted as meaning
that a (price) comparison is permitted only if the com-
pared goods are procured through the same distribution
channels and are thus offered by the advertiser and his
competitor(s) in a comparable selection?

3.

Is ‘comparison’ within the meaning of Article 7(2) of the
directive to be construed as including the creation of the
bases for comparison through a test purchase?

If this question is answered in the affirmative:

Is Article 3a of the directive to be interpreted as meaning
that the deliberate initiation of a (price) comparison
which is favourable to the advertiser through a test
purchase which is made before the beginning of the
advertiser’s own offer and is arranged accordingly makes
the comparison unlawful?

4.

Is a comparison discrediting within the meaning of
Article 3a(1)(e) of the directive if the advertiser selects the
goods purchased from the competitor in such a way that
a price difference is obtained which is greater than the
average price difference and/or if such price comparisons
are repeatedly made with the result that the impression is
created that the prices of the competitor(s) are generally
excessive?

21.4.2001

EN

Official Journal of the European Communities

C 118/11

Is Article 3a(1)(e) of the directive to be interpreted as
meaning that the information on the identification of the
competitor must be restricted to the extent absolutely
necessary and it is therefore not permitted if, in addition
to the competitor’s name, its company logo (if it exists)
and its shop are shown?

(1) OJ 1997 L 290, p. 18.
(2) OJ 1984 L 250, p. 17.

Action brought on 5 February 2001 by Commission of
the European Communities against the Kingdom of Spain

(Case C-47/01)

(2001/C 118/16)

Action brought on 5 February 2001 by Commission of
the European Communities against Beta Television SpA
(Videomusic/TMC2)

(Case C-51/01)

(2001/C 118/17)

An action against Beta Television SpA (Videomusic/TMC2)
was brought before the Court of Justice of the European
Communities on 5 February 2001 by the Commission of the
European Communities, represented by Bernard Mongin,
assisted by Massimo Moretto, avvocato.

The applicant claims that the Court should:

— order the defendant to repay, to the Commission, EUR
382 312, together with interest as from 14 July 1999
until actual payment;

— order the defendant to pay the costs.

Pleas in law and main arguments

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 5 Febru-
ary 2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, with an address for
service in Luxembourg at the office of Carlos Go´ mez de la
Cruz, of its Legal Service, Wagner Centre, Kirchberg.

The action, brought on the basis of an arbitration clause, seeks
the repayment of sums of money advanced in the context of
Contract No 70320, signed on 13 November 1996, in the
context of the 16:9 Action Plan to promote the broadcast of
high-definition television programmes in Europe.

The applicant claims that the Court should:

— declare that, by failing to draw up or,

in any event,
communicate to the Commission, the plan, outline or
inventory summary required by Articles 4(1) and 11 of
Council Directive 96/59/EC (1) of 16 September 1996 on
the disposal of polychlorinated biphenyls and polychlori-
nated terphenyls (PCB/PCT), the Kingdom of Spain has
failed to fulfil its obligations under that directive;

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on are set out in
the application.

(1) OJ 1996 L 243, p. 31.

The beneficiary, within the period laid down in the contract,
broadcast only 6 hours and 34 minutes of programmes in
16:9 format instead of the 500 hours offered and contracted
for. The Commission therefore decided to terminate the
contract, governed by Belgian law, for breach of contract by
the defendant.

Action brought on 5 February 2001 by Commission of
the European Communities against TV Internazionale
SpA

(Case C-52/01)

(2001/C 118/18)

An action against TV Internazionale SpA was brought before
the Court of Justice of the European Communities on 5 Febru-
ary 2001 by the Commission of the European Communities,
represented by Bernard Mongin, assisted by Massimo Moretto,
avvocato.