Case C-356/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel, Belgium) — Lidl Belgium GmbH & Co KG v Etablissementen Franz Colruyt NV (Directives 84/450/EEC and 97/55/EC — Misleading advertising — Comparative advertising — Conditions under which comparative advertising is permitted — Comparison of the general level of the prices charged by chains of stores — Comparison of the prices of a selection of products)
Date: 2006-11-18
Institutions: Court of Justice
Subjects: advertising malpractice, comparative advertising, consumer protection, interpretation of the law, prices policy, publishing of prices, supermarket

18.11.2006

EN

Official Journal of the European Union

C 281/7

Judgment of the Court (First Chamber) of 7 September
2006 (Reference for a preliminary ruling from the Bundes-
finanzhof — Germany) — Nowaco Germany GmbH v
Hauptzollamt Hamburg-Jonas

2.

(Case C-353/04) (1)

(Regulations (EEC) Nos 1538/91 and 3665/87 — Com-
munity Customs Code — Export refunds — Conditions for
granting — Sound and fair marketable quality — Customs
procedure — Export declaration — Physical check — Sample
— Tolerated number of defective units — Uniform quality
— Rights and obligations of the exporter and of the customs
authority — Poultrymeat)

(2006/C 281/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Nowaco Germany GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

(a) In circumstances

such as those of

the main proceedings,
Article 70 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code, as
the European
amended by Regulation (EC) No 82/97 of
the Council of 19 December 1996,
Parliament and of
applies, subject
the examination
to the proper conduct of
referred to therein, where it is necessary to establish whether a
product in respect of which an export refund is sought is of
‘sound and fair marketable quality’.

(b) The legal fiction relating to uniform quality in the first sub-
paragraph of Article 70(1) of Regulation No 2913/92, as
amended by Regulation No 82/97, does not apply if the size
of the sample taken is insufficient having regard to Article 7
of Regulation No 1538/91.

3. In circumstances such as those of the case in the main proceedings,
it is for the national administrative and judicial authorities to
establish the facts by taking into account all of the evidence. Such
evidence may include available samples but also other information,
in particular the examination account produced in accordance with
Community legislation by the customs officer who carried out the
physical checks. In the event that the facts cannot be conclusively
established for the purpose of entitlement to the refund, it is for
the national court to assess the exporter's conduct and that of the
customs authority by establishing the extent to which each has, or
has not, exercised its rights and fulfilled its obligations and to
draw the appropriate conclusions concerning entitlement to the
export refund.

(1) OJ C 262, 23.10.2004.

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of Commission Regulation (EEC) No 1538/91 of 5
June 1991 introducing detailed rules for implementing Regu-
lation (EEC) No 1906/90 on certain marketing standards for
poultry (OJ 1991 L 143, p. 11), and of Article 70(1) of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code (OJ 1992 L 302, p. 1) — Appli-
cation for export refunds for frozen chicken — Conditions as
to merchantable quality of products where examination of
samples has shown that a proportion of the chicken did not
meet the requirements laid down in Article 6 of Regulation
(EEC) No 1538/91

Operative part of the judgment

The Court rules:

1. For the purpose of establishing whether a product in respect of
which an export refund is sought is of ‘sound and fair marketable
quality’, Commission Regulation (EEC) No 1538/91 of 5 June
1991 introducing detailed rules for
implementing Regulation
(EEC) No 1906/90, as amended by Commission Regulation (EC)
No 1000/96 of 4 June 1996, which lays down minimum quality
requirements and tolerance margins, in particular Articles 6 and
7, applies.

Judgment of the Court (Grand Chamber) of 19 September
2006 (reference for a preliminary ruling from the
Rechtbank van Koophandel te Brussel, Belgium) — Lidl
Belgium GmbH & Co KG v Etablissementen Franz Colruyt
NV

(Case C-356/04) (1)

(Directives 84/450/EEC and 97/55/EC — Misleading adver-
tising — Comparative advertising — Conditions under which
comparative advertising is permitted — Comparison of the
general level of the prices charged by chains of stores —
Comparison of the prices of a selection of products)

(2006/C 281/12)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Brussel

C 281/8

EN

Official Journal of the European Union

18.11.2006

Parties to the main proceedings

Applicant: Lidl Belgium GmbH & Co KG

Defendant: Etablissementen Franz Colruyt NV

Re:

for

a preliminary

Reference
ruling — Rechtbank van
Koophandel te Brussel — Interpretation of Article 3a(1)(a), (b)
and (c) of Council Directive 84/450/EEC of 10 September
1984 concerning misleading and comparative advertising (OJ
1984 L 250, p. 17), as inserted by Directive 97/55/EC of the
European Parliament and of the Council of 6 October 1997 (OJ
1997 L 290, p. 18) — Comparative advertising — Comparison
of the general level of prices of an advertiser with that of its
competitors without any indication as to which products have
been compared in regard to their prices.

Operative part of the judgment

is

1. The condition under which comparative advertising is permissible
that
laid down by 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,
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, indivi-
dually satisfy the requirement of comparability laid down by that
provision.

2. Article 3a(1)(c) of Directive 84/450, as amended by Directive
97/55, must be interpreted as meaning that the requirement, laid
down by that provision, that the advertising ‘objectively compares’
the features of the goods at issue does not signify, 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
involved in the comparison, must be
expressly and exhaustively listed in the advertisement.

competitors

— 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.

4. Article 3a(1)(c) of Directive 84/450, 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 adver-
tisement 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.

5. Article 3a(1)(a) of Directive 84/450, as amended by Directive
97/55, must be interpreted as meaning that comparative adver-
tising 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 adver-
tiser rather than from each of the competitors.

(1) OJ C 273, 6.11.2004.

3. Article 3a(1)(c) of Directive 84/450, as amended by Directive
97/55, must be interpreted as meaning that the following consti-
tute,
features of
goods sold by two competing chains of stores:

for the purposes of

that provision,

‘verifiable’

— the prices of those goods;