Lidl SNC v Vierzon Distribution SA.
Date: 2010-11-18
16. Article 3a of Directive 84/450, with which the question referred is concerned, lists, in subparagraphs (1)(a) to (h), various cumulative conditions which comparative advertising must satisfy in order to be permitted (see, inter alia, Case C‑487/07 L’Oréal and Others [2009] ECR I‑5185, paragraph 67).
20. However, before so doing, it should be noted that it is apparent from the Court’s case‑law that the purpose of the various conditions listed in Article 3a(1) of Directive 84/450 under which comparative advertising is permitted is to achieve a balance between the different interests which may be affected by allowing comparative advertising. Thus, it is apparent from a reading of recitals 2, 7 and 9 in the preamble to Directive 97/55 that the aim of Article 3a of Directive 84/450 is to stimulate competition between suppliers of goods and services to the consumer’s advantage, by allowing competitors to highlight objectively the merits of various comparable products while, at the same time, prohibiting practices which may distort competition, be detrimental to competitors and have an adverse effect on consumer choice ( L’Oréal and Others , paragraph 68).
21. It follows that the conditions listed in Article 3a(1) of Directive 84/450 must be interpreted in the sense most favourable to permitting advertisements which objectively compare the characteristics of goods or services, while ensuring at the same time that comparative advertising is not used anti-competitively and unfairly or in a manner which affects the interests of consumers ( L’Oréal and Others , paragraph 69 and the case‑law cited).
22. It should also be noted that Directive 84/450 carried out an exhaustive harmonisation of the conditions under which comparative advertising in Member States might be permitted and that such a harmonisation implies by its nature that the lawfulness of comparative advertising throughout the European Union is to be assessed solely in the light of the criteria laid down by the European Union legislature (see Case C‑44/01 Pippig Augenoptik  [2003] ECR I‑3095, paragraph 44).
23. Lastly, with regard to advertising which, as in the main proceedings, compares prices, it should be underlined that the comparing of rival offers, particularly as regards price, is indeed inherent in comparative advertising (Case C‑356/04 Lidl Belgium  [2006] ECR I‑8501, paragraph 57 and the case‑law cited).
25. Article 3a(1)(b) of Directive 84/450 provides that, if comparative advertising is to be permitted, the comparison must relate to goods or services which meet the same needs or are intended for the same purpose. The Court has already held that that condition implies that the goods being compared must display a sufficient degree of interchangeability for consumers ( Lidl Belgium , paragraph 26, and Case C‑381 /05 De Landtsheer Emmanuel  [2007] ECR I‑3115, paragraph 44).
28. Moreover, it should be noted, first, that the judgments in Lidl Belgium  and De Landtsheer Emmanuel , in which the Court pointed out, as stated at paragraph 25 above, that the condition laid down in Article 3a(1)(b) of Directive 84/450 provides that, if comparative advertising is to be permitted, the goods being compared must display a sufficient degree of interchangeability for consumers, were in fact delivered in cases involving advertising relating to food products.
30. The Court stated in particular that the reason for which Article 3a(1)(b) of Directive 84/450 provides, as a condition for permitting comparative advertising, that the goods or services compared must meet the same needs or be intended for the same purpose is to be found, inter alia, in the fact that, under Article 2(2a) of the directive, the key element of comparative advertising is the identification of a ‘competitor’ of the advertiser or of the goods and services which it offers and that whether undertakings are competing undertakings depends, by definition, on the substitutable nature of the goods or services that they offer on the market (see De Landtsheer Emmanuel , paragraphs 27 to 29).
31. As the Court has observed, those two provisions of Directive 84/450 are thus obviously close, so that similar criteria are applicable mutatis mutandis  to both of the provisions for the purpose of determining the degree of substitution (see, to that effect, De Landtsheer Emmanuel , paragraphs 46 and 48).
32. The fact that products are, to a certain extent, capable of meeting identical needs leads to the conclusion that there is a certain degree of substitution for one another ( De Landtsheer Emmanuel , paragraph 30 and the case‑law cited).
33. Before it can be concluded that there is a real possibility of substitution, in accordance with Article 3a(1)(b) of Directive 84/450, an individual and specific assessment of the products which are specifically the subject of the comparison in the advertisement is necessary ( De Landtsheer Emmanuel , paragraph 47). Such a specific assessment of the degree of substitution falls within the jurisdiction of the national courts.
36. Secondly, such a prohibition would, by means of a broad interpretation of that condition governing whether comparative advertising is permitted, lead to a considerable restriction on the scope of comparative advertising (see, by analogy, De Landtsheer Emmanuel , paragraphs 70 and 71).
38. The outcome of such a prohibition would therefore run counter to the Court’s settled case‑law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it ( De Landtsheer Emmanuel , paragraph 63).
46. It is for the referring court to ascertain in the circumstances of each particular case, and bearing in mind the consumers to which such advertising is addressed, whether the latter may be misleading (see Lidl Belgium , paragraph 77 and the case‑law cited).
47. That court must, first, take into account the perception of an average consumer of the products or services being advertised who is reasonably well informed and reasonably observant and circumspect. As regards an advertisement such as that at issue, it is not disputed that it is addressed not to a specialist public but to end consumers who purchase their basic consumables in a chain of stores (see Lidl Belgium , paragraph 78 and the case‑law cited).
48. In carrying out the requisite assessment, the national court must also take account of all the relevant factors in the case, having regard, as follows from Article 3 of Directive 84/450, to the information contained in the advertisement at issue and, more generally, to all its features (see Lidl Belgium , paragraph 79 and the case‑law cited).
49. The Court has also held that an omission may render advertising misleading, in particular where, bearing in mind the consumers to whom it is addressed, the advertising seeks to conceal a fact which, had it been known, would have deterred a significant number of consumers from making a purchase ( Lidl Belgium , paragraph 80 and the case‑law cited).
50. In those various respects, advertising such as the advertisement at issue could, first, be misleading, as is apparent from case‑law, if the referring court were to find that, in the light of all the relevant circumstances of the particular case, in particular the information contained in or omitted from the advertisement, the decision to buy on the part of a significant number of consumers to whom the advertising 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 from the competitor, or in the mistaken belief that all of the advertiser’s products are cheaper than those of his competitor (see, to that effect, Lidl Belgium , paragraphs 83 and 84).
53. The Court has already held, inter alia, with regard to a comparison based on the prices charged by two competing stores, that, in cases where the brand name of the products may significantly affect the buyer’s choice and the comparison concerns rival products whose respective brand names differ considerably in the extent to which they are known, omission of the better-known brand name goes against Article 3a(1)(a) of Directive 84/450 ( Pippig Augenoptik , paragraph 53).
58. Recital 5 in the preamble to Directive 97/55 states that, when comparative advertising compares material, relevant, verifiable and representative features and is not misleading, it may be a legitimate means of informing consumers of their advantage ( De Landtsheer Emmanuel , paragraph 62).
60. It should be noted that, in Lidl Belgium , which concerned comparative advertising in which the comparison was based on price, the Court held that, in order for the prices of the goods comprising two selections of products to be verifiable, it is a necessary precondition that the goods whose prices have been thus compared must be capable of being individually and specifically identified on the basis of the information contained in the advertisement. The prices of goods can indeed necessarily only ever be verified if it is possible to identify those goods (see, to that effect, Lidl Belgium , paragraph 61).
61. Such identification makes it possible, in accordance with the objective of consumer protection pursued by Directive 84/450, for the persons to whom an advertisement of that kind is addressed to be in a position to satisfy themselves that they have been correctly informed with regard to the purchases of basic consumables which they are prompted to make ( Lidl Belgium , paragraph 72).