The court held that Article 49 of the Consumer Affairs Act (which, at the time, implemented Article 2a of Directive 94/450/EEC into Maltese law) affected the rules in the Commercial Code on unfair competition and therefore comparative advertising is today allowed, provided it is in line with Article 50 of the said Act (which at the time implemented Article 3a of Directive 94/450/EEC). In this regard, whether the facts advertised were true or not has relevance, as misrepresentation of facts would amount to misleading advertising.
Although these provisions of the Act were said to prevail of the provisions of the Commercial Code, this did not mean that the provisions of the Code on unfair competition where no longer applicable.
The court made reference to the Commission’s Explanatory Memorandum to the Draft of 1991 (COM (91) 147 final), and noted that there was reference to not discrediting or denigrating the goods of a competitor when undertaking comparative advertising.
The court concluded that the defendant was indeed denigrating the plaintiff’s product and was therefore found to have acted in breach of both the comparative advertising provisions and the unfair competition provisions.