18 November 2010: ECJ case C-159/09 Lidl v Vierzon
Dear reader, if you had previously on this blog read my summary of the Advocate General's opinion in the ECJ case Lidl v Vierzon then you should be warned that the European Court of Justice followed closely on what the AG had said and you should not expect to be surprised by this judgment. Still, certain interesting (and VERY CLEAR) guidelines had been given as to what is allowed in the world of comparative advertising.
Brief reminder of the facts of the case: Lidl accused Vierzon from publishing a misleading advertisement in a French newspaper. It was misleading, according to Lidl, because it compared prices of certain goods (mostly food products) in a few supermarkets without naming the brands of the goods compared nor taking into account that these goods might have differed as to certain characteristics (as well, as that demand for them might have been different, due to the fact that consumers might have used them in various ways during the cooking process).
First decision of the ECJ in this case was that Article 3a(1) of the Directive 84/405 on misleading advertising (as amended by Directive 97/55) regulating requirements for comparative advertising should apply also to food products. ECJ noted that there is nothing in the wording of the provision that suggest an exclusion of these products from being covered by the protection of the Directive. Also, such a prohibition would lead to a considerable restriction on the scope of comparative advertising. (Par. 35-36) The prices of food products could be thus compared in an advertisement provided that these food products fulfill the requirement of a sufficient degree of interchangeability.
"(...) Article 3a(1)(b) of Directive 84/450 is to be interpreted as meaning that the fact alone that food products differ in terms of the extent to which consumers would like to eat them and the pleasure to be derived from consuming them, according to the conditions and place of production, their ingredients and who produced them, cannot preclude the possibility that the comparison of such products may meet the requirement laid down in that provision that the products compared meet the same needs or are intended for the same purpose, that is to say, that they display a sufficient degree of interchangeability." (Par. 39)
ECJ allows for a comparative advertising of food products provided that such an advertising is not misleading. When would it be misleading?
1. If it were misleading for an average consumer. (Par. 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."
2. If the misleading character flows not only from the information contained in the advertisement but from all its features. (Par. 48)
3. Omission may render advertising misleading, as well. (Par. 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."
4. If advertisement convinces consumers that if by regularly buying their everyday consumer goods from the advertiser rather than from the competitor, they will save money or if it makes them believe that all of the advertiser's products are cheaper than those of his competitor. (Par. 50)
5. If food products compared in the advertisement are objectively different and the differences are capable of significantly affecting the buyer's choice. (Par. 51) E.g. in case products of two different brands are compared and one brand is significantly better-known for the consumers. (Par. 53) The same may be true as to other features of the products compared, e.g. composition, method or place of production. (Par. 54)
"The [consumer] may thus be led to believe that he will in fact obtain an economic advantage because of the competitive nature of the advertiser’s offer and not because of objective differences between the products being compared." (Par. 55)
Dear reader, if you had previously on this blog read my summary of the Advocate General's opinion in the ECJ case Lidl v Vierzon then you should be warned that the European Court of Justice followed closely on what the AG had said and you should not expect to be surprised by this judgment. Still, certain interesting (and VERY CLEAR) guidelines had been given as to what is allowed in the world of comparative advertising.
Brief reminder of the facts of the case: Lidl accused Vierzon from publishing a misleading advertisement in a French newspaper. It was misleading, according to Lidl, because it compared prices of certain goods (mostly food products) in a few supermarkets without naming the brands of the goods compared nor taking into account that these goods might have differed as to certain characteristics (as well, as that demand for them might have been different, due to the fact that consumers might have used them in various ways during the cooking process).
First decision of the ECJ in this case was that Article 3a(1) of the Directive 84/405 on misleading advertising (as amended by Directive 97/55) regulating requirements for comparative advertising should apply also to food products. ECJ noted that there is nothing in the wording of the provision that suggest an exclusion of these products from being covered by the protection of the Directive. Also, such a prohibition would lead to a considerable restriction on the scope of comparative advertising. (Par. 35-36) The prices of food products could be thus compared in an advertisement provided that these food products fulfill the requirement of a sufficient degree of interchangeability.
"(...) Article 3a(1)(b) of Directive 84/450 is to be interpreted as meaning that the fact alone that food products differ in terms of the extent to which consumers would like to eat them and the pleasure to be derived from consuming them, according to the conditions and place of production, their ingredients and who produced them, cannot preclude the possibility that the comparison of such products may meet the requirement laid down in that provision that the products compared meet the same needs or are intended for the same purpose, that is to say, that they display a sufficient degree of interchangeability." (Par. 39)
ECJ allows for a comparative advertising of food products provided that such an advertising is not misleading. When would it be misleading?
1. If it were misleading for an average consumer. (Par. 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."
2. If the misleading character flows not only from the information contained in the advertisement but from all its features. (Par. 48)
3. Omission may render advertising misleading, as well. (Par. 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."
4. If advertisement convinces consumers that if by regularly buying their everyday consumer goods from the advertiser rather than from the competitor, they will save money or if it makes them believe that all of the advertiser's products are cheaper than those of his competitor. (Par. 50)
5. If food products compared in the advertisement are objectively different and the differences are capable of significantly affecting the buyer's choice. (Par. 51) E.g. in case products of two different brands are compared and one brand is significantly better-known for the consumers. (Par. 53) The same may be true as to other features of the products compared, e.g. composition, method or place of production. (Par. 54)
"The [consumer] may thus be led to believe that he will in fact obtain an economic advantage because of the competitive nature of the advertiser’s offer and not because of objective differences between the products being compared." (Par. 55)
Finally, the ECJ seems to suggest that the brand names should, after all be mentioned in the advertisement since the consumer should be able to identify the product mentioned in the advertisement when the consumer goes to the supermarket, in order that he can check whether the advertisement was correct. (Par. 62)