Misleading and Comparative Advertising Directive, link Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4

The “significant”, “determining”, “typical” and “verifiable” characteristics, determined in Article 10(b) of the Law on the prohibition of unfair market practices and restriction of competition, are not synonyms but unique characteristics of the facts with different contents. In comparative advertisements, the comparison of significant, determining, typical and verifiable characteristics must be factual.

The plaintiff was fined by the respondent (the Competition Authority of Hungary), after the respondent determined that the plaintiff did not factually compare the size of its 4G network with its competitors’, and that the plaintiff used certain statements related to the speed of its network in a way that could mislead consumers in two of its advertising campaigns. This resulted in the plaintiff seeking judicial review.

Whether coverage in the case of mobile networks is a determining and typical characteristic, and whether direct verification by consumers is a necessary legal requirement.

The Supreme Court determined that the characteristics defined in the law are not synonyms and have to be interpreted separately. It also noted that if it accepted the respondent’s reasoning, then in dynamic markets, the market leader would not be able not advertise its superior performance compared to its competitors.

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The Supreme Court upheld the decision of the lower court and its judicial review of the Hungarian Competition Authority’s decision. It noted that in dynamic markets such as mobile networks, market leaders should be able to advertise  their superior performance, and that an overly narrow reading of relevant national law would have prevented that.

Through this judgement, the Supreme Court established a new interpretation regarding the national transposition of the 2006/114/EC Directive.