Lidl Belgium GmbH & Co. KG v Etablissementen Franz Colruyt NV.
Date: 2006-09-19
22. The second preliminary point to note is that, given the objectives of the Directive and in particular the fact that, as the second recital in the preamble to Directive 97/55 points out, comparative advertising helps to demonstrate objectively the merits of the various comparable products and thus stimulate competition between suppliers of goods and services to the consumer’s advantage, it is settled case-law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it (Case C-112/99 Toshiba Europe  [2001] ECR I‑7945, paragraphs 36 and 37, and Case C-44/01 Pippig Augenoptik  [2003] ECR I‑3095, paragraph 42; see also Case C-59/05 Siemens  [2006] ECR I-0000, paragraphs 22 to 24).
Order in which the questions are to be examined
25. As is apparent from the second recital in the preamble to Directive 97/55, the harmonisation by the directive of the conditions governing the use of comparative advertising is to help to demonstrate objectively the merits of the ‘various comparable products’. As stated in the ninth recital in its preamble, this requirement that the products be comparable is intended in particular to prevent comparative advertising from being used in an anti-competitive and unfair manner.
26. Article 3a(1)(b) of the Directive sets out that requirement, laying down that, if comparative advertising is to be permitted, the competing goods being compared must meet the same needs or be intended for the same purpose, that is to say they must display a sufficient degree of interchangeability for consumers.
29. The Court has previously pointed out that the choice as to the number of comparisons which the advertiser wishes to make between the products which he is offering and those offered by his competitors falls within the exercise of his economic freedom ( Pippig Augenoptik , paragraph 81).
33. Having regard, in particular, to the fact that comparative advertising helps to stimulate competition between suppliers of goods and services to the consumer’s advantage, the benefit of such advertising to consumers must thus necessarily be taken into account in assessing the requirement of comparability laid down by Article 3a(1)(b) of the Directive (see, to similar effect in relation to Article 3a(1)(g) of the Directive, Siemens , paragraphs 23 and 24).
45. Second, Article 3a(1)(c) of the Directive, echoing the second recital in the preamble to Directive 97/55, expressly states that features which meet the four criteria referred to above must in addition be compared objectively.
50. Lidl nevertheless relied on the fact that the Court has previously held that any obligation to restrict each price comparison to the average prices of the products offered by the advertiser and those of rival products would be contrary to the objectives of the Community legislature, the Court observing in this regard that comparative advertising must help to demonstrate objectively the merits of the various comparable products and that such objectivity implies that the persons to whom the advertising is addressed are capable of knowing the actual price differences between the products compared and not merely the average difference between the advertiser’s prices and those of his competitors ( Pippig Augenoptik , paragraphs 81 and 82).
57. As the Court has previously pointed out, the comparing of rival offers, particularly as regards price, is indeed inherent in comparative advertising ( Pippig Augenoptik , paragraph 80).
61. It must be pointed out, however, that in order for the prices of the goods comprising a selection of products or the general level of the prices charged by a chain of stores in respect of its selection of comparable goods to be verifiable, it is a necessary precondition that, even though, as is apparent from paragraph 54 of the present judgment, the goods whose prices have been thus compared are not required to be expressly and exhaustively listed in the advertisement addressed to the consumer, they must nevertheless be capable of being individually and specifically identified on the basis of the information contained in that advertisement. The prices of goods can necessarily only ever be verified if it is possible to identify the goods.
72. Such an obligation makes it possible, in accordance with the objective of consumer protection pursued by the Directive, 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.
77. It is for national courts to ascertain in the circumstances of each particular case, and bearing in mind the consumers to which the advertising is addressed, whether the latter may be misleading (see, in particular, Case C-373/90 X  [1992] ECR I‑131, paragraphs 15 and 16).
78. Those courts must 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 (see X , paragraphs 15 and 16; Case C‑210/96 Gut Springenheide and Tusky  [1998] ECR I‑4657, paragraph 31; Case C-220/98 Estée Lauder  [2000] ECR I-117, paragraph 27; Case C-99/01 Linhart and Biffl  [2002] ECR I‑9375, paragraph 31; and Pippig Augenoptik , paragraph 55). In the present instance, both the advertising methods at issue are addressed not to a specialist public but to end consumers who purchase their basic consumables in a chain of stores.
79. In carrying out the requisite assessment, national courts must also take account of all the relevant factors in the case ( Estée Lauder , paragraphs 27 and 30), having regard, as follows from Article 3 of the Directive, to the information contained in the advertising and, more generally, to all its features.
80. The Court has thus held that an omission may render advertising misleading, in particular where, bearing in mind the consumers to which 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 ( X , paragraph 15).
83. Analogously, comparative advertising relating to the general level of the prices charged by competing chains of stores in respect of their comparable ranges of products and to the amount that can be saved by consumers purchasing their basic consumables from one of those chains rather than the other should, for example, be considered to be misleading if it is established, in the light of all the relevant circumstances of the particular case, that the decision to buy on the part of a significant number of consumers to whom that advertising is addressed is made in the mistaken belief that all the advertiser’s products have been taken into account in calculating the general price level, and the amount of savings, that are claimed by the advertising. The same must be true if it is established that such a decision is made in the mistaken belief that that amount will be saved by consumers irrespective of the nature and quantity of the products which they acquire from the advertiser or, for example, in the mistaken belief that all the advertiser’s products without exception are cheaper than those of his competitors.
84. Such advertising will also be misleading if it is established that the collective reference which it contains to a range of amounts that may be saved by consumers who purchase their basic consumables from the advertiser rather than from competing chains of stores and the failure to specify individually the general level of the prices charged by each of those chains in competition with the advertiser and the amount that can be saved in relation to each of them are such as to deceive a significant number of persons to whom the advertising is addressed as to the amount that they are actually liable to save by purchasing their basic consumables from the advertiser rather than from some particular competitor or other, and to affect their economic behaviour to that extent.