De Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne and Veuve Clicquot Ponsardin SA.
Date: 2007-04-19
16. According to settled case‑law, that is a broad definition covering all forms of comparative advertising, so that, in order for there to be comparative advertising, it is sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offers (see Case C‑112/99 Toshiba Europe  [2001] ECR I‑7945, paragraphs 30 and 31, and Case C‑44/01 Pippig Augenoptik  [2003] ECR I-3095, paragraph 35).
17. The test for determining whether an advertisement is comparative in nature is thus whether it identifies, explicitly or by implication, a competitor of the advertiser or goods or services which the competitor offers ( Toshiba Europe , paragraph 29).
23. Those courts, when making that assessment, must take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see Pippig Augenoptik , paragraph 55, and Case C‑356/04 Lidl Belgium  [2006] ECR I‑0000, paragraph 78).
27. 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.
28. Whether undertakings are competing undertakings depends, by definition, on the substitutable nature of the goods or services that they offer on the market.
29. It is precisely for that reason that Article 3a(1)(b) of the directive 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.
30. As the Court has already held, the fact that the 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 (Case 170/78 Commission  v United Kingdom  [1980] ECR 417, paragraph 14, and Case 356/85 Commission  v Belgium  [1987] ECR 3299, paragraph 10).
35. According to settled case‑law, the conditions required of comparative advertising must be interpreted in the sense most favourable to it ( Toshiba Europe , paragraph 37, Pippig Augenoptik , paragraph 42 and Lidl Belgium , paragraph 22).
36. More specifically, with a view to determining whether there is a competitive relationship between products, the Court has held that it is necessary to consider not only the present state of the market but also the possibilities for development within the context of free movement of goods at the Community level and the further potential for the substitution of products for one another which may be revealed by intensification of trade ( Commission  v United Kingdom , paragraph 6).
37. The Court also stated that, for the purpose of measuring the possible degree of substitution, it is impossible to restrict oneself to consumer habits in a Member State or in a given region. Those habits, which are essentially variable in time and space, cannot be considered to be a fixed rule ( Commission  v United Kingdom , paragraph 14).
44. Article 2(2a) lays down the criteria which serve to define the term comparative advertising, thereby delimiting the scope of the directive. Article 3a(1)(b) lays down one of the conditions which comparative advertising must satisfy for it to be permitted, requiring that the competing products being compared meet the same needs or be intended for the same purpose, that is to say that they must display a sufficient degree of interchangeability for consumers ( Lidl Belgium , paragraph 26).
46. It is true that the two provisions of the directive are obviously close.
47. However, whilst the definition of comparative advertising given in Article 2(2a) assumes that there is a competitive relationship between undertakings proving, for that purpose, sufficient to ascertain whether the products they offer generally display a certain degree of substitutability for one another, the condition laid down in Article 3a(1)(b) requires an individual and specific assessment of the products which are specifically the subject of the comparison in the advertisement before it can be concluded that there is a real possibility of substitution.
48. It should be noted that the criteria set out in paragraphs 36 to 41 of this judgment apply mutatis mutandis to Article 3a(1)(b) of the directive.
62. As already pointed out at paragraph 34 of the present judgment, comparative advertising helps to demonstrate objectively the merits of the various comparable products and to stimulate competition between suppliers of goods and of services to the consumer’s advantage. In the wording of recital 5 in the preamble to Directive 97/55, comparative advertising, when it compares material, relevant, verifiable and representative features and is not misleading, may be a legitimate means of informing consumers of their advantage.
63. It is settled case‑law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it (see paragraph 35 of this judgment).
69. In the context of that assessment, it is particularly important to determine whether the aim of that advertising is solely to distinguish between the products of the advertiser and those of his competitor and thus to highlight differences objectively ( Toshiba Europe , paragraph 53, and Case C-59/05 Siemens  [2006] ECR I-2147, paragraph 14).
70. Where all the other conditions governing whether such advertising is permissible are met, protection of designation of origin which would have the effect of prohibiting absolutely comparisons between products without designation of origin and others with designation of origin would be unwarranted and could not be justified under the provisions of Article 3a(1)(f) of the directive.
71. Moreover, since such a prohibition does not follow expressly from the wording of Article 3a(1)(f) of the directive, to find that prohibition as a matter of principle by means of a broad interpretation of that condition governing whether comparative advertising is permitted would constitute a restriction on the scope of comparative advertising. That result would run counter to the settled case‑law of the Court (see paragraph 63 of this judgment).