The Supreme Administrative Court, panel of 5 judges, did not share the conclusions of the lower court that the advertising claim was not misleading. Firstly, the court found that indeed “the lowest prices” claim could be interpreted in two different ways- on the one hand that all competitors offer higher prices (the interpretation applied by the plaintiff) and on the other hand that no other competitor offers lower prices (the interpretation applied by the first instance court). Accordingly, the court held that the mere fact that there are two possible ways for interpretation of a single claim and one of these interpretations could be deceptive to the average consumer is sufficient to support the conclusion that the claim is misleading. The court further stated that it is sufficient to have an objective possibility of confusion, without such a misleading to actually occur, therefore, it does not matter which version of interpretation or what possible conclusions the consumers would make when interpreting the advertising claim. The message misleads the consumer in both variants of its interpretation, because even when the trader offers a price equal to the price of other competitors, that offered price is not the lowest price available on the market, but is equal to the price offered by other competitors.
The court also rejected the conclusion of the lower court that the monitoring process carried out by the defendant as "preliminary, ongoing and follow-up control" ensures the claim for lowest price. It was found that the trader assigned to customers themselves to perform the task of a daily market research if they want to secure their so-called "lowest price guarantee" and the lack of any client’s alerts did not result in reduction in the price of a product advertised as a product having the lowest price, even when it was sold by the defendant at a price higher than the price of a competitor.
Based on the above reasoning the court took the position that the advertising campaign at issue was in violation of the ban on misleading advertising.