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Case Details

Case Details
National ID Court decision number 613/2009 (A2, Civil Cases)
Κράτος μέλος Ελλάδα
Common Name link
Decision type Supreme court decision
Decision date 16/03/2009
Δικαστήριο Άρειος Πάγος
Θέμα
Ενάγων Unknown
Εναγόμενος "ΑΛΦΑ-ΒΗΤΑ ΒΑΣΙΛΟΠΟΥΛΟΣ ΑΕ" (Alpha – Beta Vasilopoulos S.A.)
Λέξεις-κλειδιά advertising, comparative advertising, misleading advertising, trader

Misleading and Comparative Advertising Directive, Article 1 Misleading and Comparative Advertising Directive, Article 2 Misleading and Comparative Advertising Directive, Article 2, (a) Misleading and Comparative Advertising Directive, Article 2, (b) Misleading and Comparative Advertising Directive, Article 2, (c) Misleading and Comparative Advertising Directive, Article 2, (d) Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3, (a) Misleading and Comparative Advertising Directive, Article 3, (b) Misleading and Comparative Advertising Directive, Article 3, (c) Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4, (a) Misleading and Comparative Advertising Directive, Article 4, (b) Misleading and Comparative Advertising Directive, Article 4, (c)

(1) The purpose of Directive 2006/114/EC is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted.

(2) For the purposes of Directive 2006/114/EC, ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations. Furthermore, ‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor, while ‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.

(3) Under Directive 2006/114/EC, a ‘trader’ means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and anyone acting in the name of or on behalf of a trader.

(4) In order to determine whether advertising is misleading, account should be taken of all its features, and in particular of any information it contains concerning:
(a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;
(b) the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided;
(c) the nature, attributes and rights of the advertiser, such as his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions.

(5) Comparative advertising is permitted, as far as the comparison is concerned, when the following conditions are met:
(a) it is not misleading,
(b) it compares goods or services meeting the same needs or intended for the same purpose and
(c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price.
The plaintiff who was an importer of frozen fish sold to retailers, published an advertisement in a newspaper, claiming that the package of frozen fish he sold contained just fish, while the correspondent package of frozen fish sold by the defendant contained partially glazing ice. Thus, the selling price of the frozen fish per kilo of the defendant was calculated based on fish and water, whereas the price of the product sold by the plaintiff was calculated based only on fish. Following that advertisement, the defendant filed a claim against the plaintiff at the court of first instance of Athens. The latter issued decision no. 482/2006, which was followed by decision no. 1354/2007 of the court of appeal of Athens, that had held the plaintiff liable for unfair competition due to misleading advertising arguing that the comparison of the two similar products had not been objective with respect to their material properties (e.g. fishing area, packaging and processing area, etc.). The plaintiff filed an appeal against this decision before the supreme court.
(1) What is the purpose of Directive 2006/114/EC?

(2) How is advertising defined according to Directive 2006/114/EC? What is the definition of misleading and comparative advertising?

(3) How is a trader defined in relation to Directive 2006/114/EC?

(4) What should be taken into account in order to determine whether advertising is misleading?

(5) Under what conditions is comparative advertising permitted?
Based on the provisions set by Directive 2006/114/EC (art. 4), the court held that a comparative advertising, which determines directly or indirectly the identity of a specific competitor or similar goods or services that this competitor offers and which makes a comparison of similar goods or services of the advertiser and those of his competitor, is allowed and does not constitute an act of unfair competition, but it rather contributes to shaping healthy competition, if it is not misleading; i.e. if the comparison of the characteristics of goods and services, including the price, is made in an objective and verifiable way, and the goods or services being compared meet the same needs or are intended for the same purpose. In this context the supreme court held that the decision of the court of appeal that recognized that the plaintiff’s statements are false and misleading lacked of lawful grounds due to insufficient and unclear reasoning regarding the application of the relevant legal provisions; in specific the court of appeal had held that the advertisement was misleading and that it contained untrue allegations, although by the context of the advertisement it is clear that it compared the two similar products that are intended for the same purpose (same nutritional needs of the consumers) in terms of their pricing (without containing any untrue allegations regarding their quality, as it was falsely perceived by the court of appeal).

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The court set aside decision no. 1354/2007 of the court of appeal and referred the case for further proceedings in the same court of appeal on another composition of judges.