1 This request for a preliminary ruling concerns the interpretation of Article 4(c) of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21).
2 The request has been made in proceedings between HUK-COBURG Haftplicht-Unterstützungs-Kasse kraftfahrender Beamter Deutschlands a.G. in Coburg (‘HUK-Coburg’) and Check24 Vergleichsportal GmbH and Others (together, ‘Check 24’) concerning an application for an injunction prohibiting an online grades-based comparison system on the website operated by Check24.
3 Under Article 1 of Directive 2006/114/EC: ‘The purpose of this Directive is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted.’
4 Article 2(c) of that directive provides: ‘For the purposes of this Directive: …
5 Article 4 of that directive provides: ‘Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met: … (b) it compares goods or services meeting the same needs or intended for the same purpose; (c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price; (d) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor; … (h) it does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor.’
6 The first subparagraph of Article 5(1) of that directive states: ‘Member States shall ensure that adequate and effective means exist to combat misleading advertising and enforce compliance with the provisions on comparative advertising in the interests of traders and competitors.’
7 Under Paragraph 6 of the Gesetz gegen den unlauteren Wettbewerb (Law on unfair competition) of 3 July 2004 (BGBl. 2004 I, p. 1414), in the version applicable to the dispute in the main proceedings (‘the UWG’): ‘(1) Comparative advertising means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor. (2) Anyone who engages in comparative advertising acts unlawfully if the comparison: … …’
8 HUK-COBURG is the parent company of a large German insurance group whose subsidiaries offer insurance in various fields, including motor insurance.
9 Check24, on the other hand, is a group of companies governed by German law which operates an online comparison website offering users of that website the possibility of comparing various products, including insurance packages, free of charge. That comparison is made on the basis of a series of criteria, including price, by means of scores awarded to the various insurance packages (‘the grades’). That website also offers the possibility of entering into contracts with the suppliers of those products.
10 Those comparison systems are generally designed according to the same model for the different classes of insurance concerned. A results page is displayed after the user enters certain reference data, some of which are mandatory and some optional, concerning the policyholder and the desired product. That results page contains a list of insurance packages from various insurers and a brief overview of the information relating to those packages which is considered essential, that is to say the name of the insurer, the price of the package concerned and also, in the form of key words, details relating to that package. In addition, a grade expressly designated as such is displayed in a rectangular field surrounded by blue under the name of the insurer being compared. That grade indicates a numerical value from 1.0 to 4.0 and is accompanied, as appropriate, by the terms ‘very good’, ‘good’, ‘satisfactory’ or ‘sufficient’, attributed to each insurer. At the top of that list is a first offer, referred to, in most cases, as ‘value for money recommendation’, followed by a second offer, referred to as ‘performance recommendation’.
11 The following offers are generally ranked in ascending order of price, but the customer also has the option, by clicking on the corresponding buttons, to obtain a different ranking order, that is to say, by names of the insurers concerned, listed in alphabetical order, by grades, classified in descending order, and by customer ratings, listed from highest to lowest. In addition, if the user hovers the mouse cursor on the field containing a grade, a pop-up window displays basic information about that grade.
12 That grade is based on a points system using various ‘scoring parameters’ consisting of points awarded up to a certain ceiling, which, when added together, give a total score. Those grading parameters and the total score vary according to the relevant class of insurance. Those grading parameters are grouped into subsets or categories, which differ according to the class of insurance in question, and are accompanied by a green or yellow tick or a red cross. At the bottom of this pop-up window, it is stated that those symbols mean ‘very good’, ‘average’ and ‘below average/risk not insured’, respectively.
13 It was against that background that, in 2020, HUK-Coburg brought proceedings before the Landgericht Köln (Regional Court, Cologne, Germany) against Check24, claiming, inter alia, that, as regards motor insurance, the comparisons offered on the website in question by means of the grades were contrary to Paragraph 6(2)(2) of the UWG. That court upheld that reasoning in a judgment of 22 April 2020, as a result of which Check24 made changes to that website as regards motor insurance products and made additional information on the grades available to the consumers concerned. Subsequently, Check24 also made similar changes in respect of other insurance products.
14 On 26 November 2020, HUK-Coburg brought an action before that court against Check24 Vergleichsportal, the company responsible for making that website available to consumers. At the request of HUK-Coburg, the same court, by order of 22 March 2021, referred the case to the Landgericht München I (Regional Court, Munich I, Germany), which is the referring court. HUK-COBURG submitted an application for an injunction and for damages, concerning specific forms of infringement, in particular, the display of the grades on the results pages as such, but also in association with the corresponding information displayed in pop-up windows. In that regard, the applicant argued that such grades constitute a form of comparative advertising which is not permitted under national law, on the ground that they must be regarded as value judgments that cannot be the subject of comparative advertising, given that they reflect a false objectivity and may be highly misleading for the consumer.
15 On 20 September 2021, HUK-Coburg extended that action to Check24. In particular, HUK-Coburg requested Check24 Vergleichsportal für Sachversicherungen GmbH to cease presenting personal property insurance and legal expenses insurance packages ranked according to price and customer ratings.
16 The referring court considers that the question whether Paragraph 6(2)(2) of the UWG generally prohibits a comparison by means of grades, such as that at issue in the dispute before it, depends on the interpretation of Article 4(c) of Directive 2006/114.
17 That court takes the view, first of all, that a grade is a figure which, by itself, does not provide the consumer with information about the product being compared which is sufficiently important to lead to a decision to purchase, with the result that that grade does not constitute a feature of a product within the meaning of Article 4(c) of Directive 2006/114.
18 Next, the referring court notes that the award of points or grades is a subjective act, whereas that provision expressly requires an objective comparison. In its view, such objectivity is required alongside verifiability and must therefore have an autonomous meaning, independent of verifiability.
19 Furthermore, the referring court notes that Directive 2006/114 generally takes a positive view of comparative advertising from the point of view of competition and consumer protection policy, and that it is intended solely to protect consumers and competitors from any disadvantages arising from such advertising. In those circumstances, the conditions laid down in Article 4(c) of Directive 2006/114 must, according to that court, be interpreted broadly.
20 Lastly, the referring court considers that a grading or points system allows a synthetic comparison of a large number of criteria and may therefore be of assistance to consumers in the context of complex purchasing transactions.
21 In those circumstances, the Landgericht München I (Regional Court, Munich I) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 4(c) of Directive [2006/114] to be interpreted as meaning that the conditions of permitted comparative advertising under that provision may also be satisfied where the comparison is performed by means of a grading or points system?’
22 As a preliminary point, it should be noted that, under the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (judgment of 7 November 2019, K.H.K. (Account preservation), C‑555/18, EU:C:2019:937, paragraph 28 and the case-law cited).
23 Consequently, even if, formally, the question referred concerns the interpretation of Article 4(c) of Directive 2006/114, in particular whether the conditions constituting permitted comparative advertising may also be satisfied where a comparison is made by means of a grading or points system, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case in the main proceedings. It is, in that regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the main dispute (see, by analogy, judgment of 7 November 2019, K.H.K. (Account preservation), C‑555/18, EU:C:2019:937, paragraph 29 and the case-law cited).
24 In the present case, in the light of the information set out in the request for a preliminary ruling, it is necessary to examine whether an online comparison service for insurance products provided by an undertaking may be regarded as ‘comparative advertising’ within the meaning of Article 2(c) of Directive 2006/114 and, if so, whether such a form of advertising satisfies the criteria of lawfulness established by that directive.
25 Article 2(c) defines the concept of ‘comparative advertising’ as ‘any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor’.
26 In that regard, the Court has previously stated that the key element of the concept of comparative advertising is the identification of a competitor of the advertiser or of the goods and services which it offers (judgments of 19 April 2007, De Landtsheer Emmanuel, C‑381/05, EU:C:2007:230, paragraph 27, and of 18 November 2010, Lidl, C‑159/09, EU:C:2010:696, paragraph 30).
27 Accordingly, as the European Commission has rightly pointed out, it is therefore decisive, in the present case, to know whether a group of companies offering online comparison services for insurance products may be classified as a ‘competitor’, within the meaning of Article 2(c) of Directive 2006/114, of an insurance group.
28 It follows that the advertiser, namely Check24, must be a competitor of HUK-Coburg in order for the contested practice to be regarded as comparative advertising within the meaning of Article 2(c) and therefore for that practice to fall within the scope of that directive, which it is for the referring court to examine.
29 In that regard, it should be noted that neither that provision nor any other provision of that directive contains a definition of the concept of ‘competitor’.
30 As regards that concept of ‘competitor’, it should be recalled that the Court has previously stated that whether undertakings are competing undertakings covered by the concept of comparative advertising depends, by definition, on the substitutability of the goods or services which those undertakings offer on the market (judgments of 19 April 2007, De Landtsheer Emmanuel, C‑381/05, EU:C:2007:230, paragraph 28, and of 18 November 2010, Lidl, C‑159/09, EU:C:2010:696, paragraph 30).
31 It is for that reason that Article 4(b) of Directive 2006/114 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 (see, to that effect, judgment of 19 April 2007, De Landtsheer Emmanuel, C‑381/05, EU:C:2007:230, paragraph 29).
32 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 (judgment of 19 April 2007, De Landtsheer Emmanuel, C‑381/05, EU:C:2007:230, paragraph 30, and of 18 November 2010, Lidl, C‑159/09, EU:C:2010:696, paragraph 32).
33 Lastly, the specific assessment of that degree of substitution, which is for the national courts to carry out in the light of the aims of Directive 2006/114 and the principles identified by the Court in its case-law, requires the examination of criteria from which it can ascertained whether there is a competitive relationship between at least a part of the range of products offered by the undertakings concerned (see, to that effect, judgment of 19 April 2007, De Landtsheer Emmanuel, C‑381/05, EU:C:2007:230, paragraph 33).
34 In the present case, in the light of the foregoing considerations, the examination of the existence of a competitive relationship between Check24 and HUK-Coburg, which it is for the referring court to carry out, will have to be based on an analysis of the possible substitutability of the services offered by the parties to the main proceedings, respectively, in order to determine whether they operate in the same market.
35 In that regard, it is apparent from the documents before the Court that, while HUK-Coburg provides its customers with insurance services in various fields, Check24 does not itself offer such services, but merely compares online various insurance services packages offered by insurance companies by means of a grading or points system and, as the case may be, offers, as an intermediary, the possibility of concluding contracts with the insurance companies providing the services being compared.
36 Thus, in so far as it is apparent from those documents that Check24 operates an insurance services comparison website and is not itself an insurance company, it can neither provide nor have at its disposal such services, including where it enables, as a mere intermediary, the conclusion of contracts between customers and insurance providers.
37 Accordingly, it appears, subject to further verification by the referring court, that an insurance group, such as HUK-Coburg, and a group of companies providing online comparison services for insurance products, such as Check24, offer services which are not substitutable and therefore operate in different services markets.
38 It follows that the concept of ‘comparative advertising’, within the meaning of Article 2(c) of Directive 2006/114, does not include online comparison services for insurance products provided by an undertaking which identify neither a competitor of that undertaking nor goods or services offered by such a competitor.
39 In the light of all the foregoing considerations, the answer to the referring court’s question is that Article 2(c) of Directive 2006/114 must be interpreted as meaning that the concept of ‘comparative advertising’, referred to in that provision, does not include an online comparison service for goods or services provided by an undertaking which is not a ‘competitor’ within the meaning of that provision, that is to say, which does not itself offer the goods or services which it compares and which therefore operates in a market for separate goods or services. The same applies where that undertaking acts as an intermediary and allows consumers to conclude contracts with undertakings which offer the goods or services concerned, without itself operating in the market for those goods or those services.
40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.