CELEX: C2001/118/15
Language: en
Date: 2001-04-21 00:00:00
Title: 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

C 118/10              EN                     Official Journal of the European Communities                                       21.4.2001
If not:                                                                      Is the reference in Article 3a(1)(a) of the directive to
                                                                             Article 7(1) of the directive a lex specialis in relation to
(2) Are the provisions contained in Articles 1 and 4 of                      Article 7(2) of the directive, with the result that a national
     Council Regulation (EEC) No 3950/92 of 28 December                      standard governing misleading statements which is poss-
     1992 and Articles 3 and 4 of Commission Regulation                      ibly more strict may be applied to all elements of the
     (EEC) No 534/93 of 9 March 1993 valid, in the light of                  comparison?
     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                    Is Article 3a(1)(a) of the directive to be interpreted as
     individual reference quantities, for adjustments and levies             meaning that the comparison of the price of a brand-
     in cases of administrative or judicial challenge to those               name product with the price of a no-name product of
     provisions?                                                             equivalent quality is not permitted where the name of the
                                                                             manufacturer is not indicated, or do Article 3a(1)(c) and
(3) If retrospective adjustment is not possible, does the                    Article 3a(1)(g) of the directive preclude indication of the
     Community legislation permit the Member State to                        manufacturer? Is the image of a (brand-name) product a
     assume responsibility for paying the sums owed to the                   feature of the product/service within the meaning of
     Community without incurring liability to penalties?                     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
(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.3.1993, p. 12.
                                                                             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?
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                                If this question is answered in the affirmative:
Handelsgesellschaft mbH and 2. Estate of Franz Josef
                            Hartlauer
                                                                             Is Article 3a of the directive to be interpreted as meaning
                         (Case C-44/01)                                      that a (price) comparison is permitted only if the com-
                                                                             pared goods are procured through the same distribution
                        (2001/C 118/15)                                      channels and are thus offered by the advertiser and his
                                                                             competitor(s) in a comparable selection?
Reference has been made to the Court of Justice of the
European Communities by order of 19 December 2000 by the                3.   Is ‘comparison’ within the meaning of Article 7(2) of the
Oberste Gerichtshof (Supreme Court), Austria, which was                      directive to be construed as including the creation of the
received at the Court Registry on 2 February 2001, for a                     bases for comparison through a test purchase?
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:
                                                                             If this question is answered in the affirmative:
1.   Is Article 7(2) of Directive 97/55/EC (1)   of the European
     Parliament and of the Council of 6 October 1997
     amending Directive 84/450/EEC (2) concerning mislead-                   Is Article 3a of the directive to be interpreted as meaning
     ing advertising so as to include comparative advertising                that the deliberate initiation of a (price) comparison
     (‘the directive’) to be interpreted to the effect that                  which is favourable to the advertiser through a test
     ‘comparative advertising, as far as the comparison is                   purchase which is made before the beginning of the
     concerned’ means the statements regarding the product                   advertiser’s own offer and is arranged accordingly makes
     offered by the advertiser himself, the statements regarding             the comparison unlawful?
     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’              4.   Is a comparison discrediting within the meaning of
     within the meaning of Article 7(2) of the directive only                Article 3a(1)(e) of the directive if the advertiser selects the
     in so far as the statements are made regarding the                      goods purchased from the competitor in such a way that
     result of the comparison, with the consequence that                     a price difference is obtained which is greater than the
     misconceptions regarding other features of the compared                 average price difference and/or if such price comparisons
     goods/services may be assessed on the basis of a national               are repeatedly made with the result that the impression is
     standard governing misleading statements which is poss-                 created that the prices of the competitor(s) are generally
     ibly more strict?                                                       excessive?
 ---pagebreak--- 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           Action brought on 5 February 2001 by Commission of
      meaning that the information on the identification of the           the European Communities against Beta Television SpA
      competitor must be restricted to the extent absolutely                                    (Videomusic/TMC2)
      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?                                                                      (Case C-51/01)
                                                                                                  (2001/C 118/17)
(1) OJ 1997 L 290, p. 18.
(2) OJ 1984 L 250, p. 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
Action brought on 5 February 2001 by Commission of                              382 312, together with interest as from 14 July 1999
the European Communities against the Kingdom of Spain                           until actual payment;
                                                                          —     order the defendant to pay the costs.
                            (Case C-47/01)
                           (2001/C 118/16)                                Pleas in law and main arguments
An action against the Kingdom of Spain was brought before                 The action, brought on the basis of an arbitration clause, seeks
the Court of Justice of the European Communities on 5 Febru-              the repayment of sums of money advanced in the context of
ary 2001 by the Commission of the European Communities,                   Contract No 70320, signed on 13 November 1996, in the
represented by Gregorio Valero Jordana, with an address for               context of the 16:9 Action Plan to promote the broadcast of
service in Luxembourg at the office of Carlos Gómez de la                high-definition television programmes in Europe.
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                          The beneficiary, within the period laid down in the contract,
The applicant claims that the Court should:                               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
—     declare that, by failing to draw up or, in any event,               contract, governed by Belgian law, for breach of contract by
      communicate to the Commission, the plan, outline or                 the defendant.
      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.
                                                                          Action brought on 5 February 2001 by Commission of
                                                                          the European Communities against TV Internazionale
Pleas in law and main arguments                                                                         SpA
The pleas in law and main arguments relied on are set out in                                       (Case C-52/01)
the application.
                                                                                                  (2001/C 118/18)
(1) OJ 1996 L 243, p. 31.                                                 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.