The judgment in case C-52/13
Posteshop seems to have nothing in common with consumers. Until you notice that
it supplies the old discussion on the distinction between B2B and B2C
regulations with new arguments.
This request for a
preliminary ruling concerned the interpretation of a B2B directive - Directive
2006/114/EC on misleading and comparative advertising. Posteshop advertised its
franchise network, which B2B advertisement was assessed misleading. Posteshop
brought an appeal against that decision.
The national court decided to refer
the following question to the Court of Justice for a preliminary ruling:
‘With regard to the protection to be afforded
to traders, is Directive [2006/114] to be interpreted as referring to
advertising that is misleading and at the same time based on unlawful
comparison, or to two separate offences, each of which may be relevant in its
own right, namely, misleading advertising and unlawful comparative advertising?’.
(Paragraph 18)
The referred question is extremely simple and so is the answer. The CJEU
decided that Directive 2006/114/EC:
‘is to be interpreted as referring to
misleading advertising and unlawful comparative advertising as two independent
infringements and to the effect that, in order to prohibit and penalise
misleading advertising, it is not necessary that that latter at the same time
should constitute unlawful comparative advertising’. (Paragraph 28)
The question of the national court may have resulted not only from some
linguistic inaccuracies in the Italian version of the Directive, but also from the
lack of transparency in the division between a B2C and a B2B directive. The
CJEU had to explain the fundamental rules of the prohibitions of unfair
practices under EU law:
‘Directive
84/450, in its original version, concerned only misleading advertising.
Regulation of comparative advertising was inserted into that latter directive
by Directive 97/55/EC (…) amending Directive 84/450 concerning misleading
advertising so as to include comparative advertising (…). The objective of
Directive 97/55, pursuant to recital 18 in the preamble thereto, was to
establish the conditions under which comparative advertising is permitted. On
the other hand, that directive did not in any way amend the provisions of
Directive 84/450 on misleading advertising. Next, (…) Unfair Commercial
Practices Directive (…) limited the scope of Directive 84/450 to the protection
of traders. Lastly, codified that latter directive. It follows that the
European Union legislature did not intend, in adopting Directives 97/55 and
2006/114, to amend the rules relating to misleading advertising as provided for
in Directive 84/450, except by restricting their scope.’ (Paragraph 27)
So, 9 years after the adoption of the UCP Directive even the most basic
rules remain enigmatic for the national courts. Therefore, one may ask again if
the distinction between B2C and B2B unfairness was necessary taking into
account that the unfair B2C and B2B practices are closely linked (see my paper in Journal of Consumer Law, volume 36,
issue 3, September 2013, pp. 329-342).
Leaving aside the answer to this question, the impact of the Directive on misleading and comparative
advertising on the UCP Directive is evident (e.g. with regards to the average
consumer test). It is likely that in the coming years we will find out if the solutions
of the UCP Directive have an inverse impact on the B2B acts: the revised
Directive 2006/114/EC [see Communication from the Commission ‘Protecting
businesses against misleading marketing practices and ensuring effective
enforcement. Review of Directive 2006/114/EC concerning misleading and
comparative advertising’, COM (2012) 702 final]
and on a directive (regulation?) on unfair trading practices in the B2B supply
chain [see Green Paper on B2B Unfair Trading Practices in the Business-to-Business Food and
Non-Food Supply Chain in Europe, COM (2013) 37 final].
