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Case Details

Case Details
National ID C 52/13
Member State European Union
Common Name link
Decision type Court of Justice decision
Decision date 13/03/2014
Court European Court of Justice
Subject
Plaintiff Posteshop SpA – Divisione Franchising Kipoint
Defendant Autorità Garante della Concorrenza e del Mercato, Presidenza del Consiglio dei Ministri,
Keywords comparative advertising, general discussion, misleading advertising, national law

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 3 Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 5, 1.

With regard to the protection afforded to traders, Directive 2006/114 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.
It is apparent from the order for reference that the Autorità, by decision of 30 March 2010, found that the publication by Posteshop of advertising material seeking to promote its franchise network Kipoint constituted misleading advertising within the meaning of Articles 1 and 3 of Legislative Decree No 145/2007. It consequently, by the same decision, prohibited any future publication and imposed a fine of EUR 100 000 on Posteshop.

Posteshop brought an action against that decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio). That court dismissed that action as unfounded, holding, inter alia, that it is clear from Article 1, Article 5(3)(a) and (b) and Article 5(4) of Directive 2006/114 that the system of protection implemented by that directive does not concern only cases in which the advertising material includes both features of misleading advertising and features of unlawful comparative advertising.

Posteshop brought an appeal against that decision before the referring court. Posteshop claims, in particular, before that court that it follows from recital 3 in the preamble to Directive 2006/114 and Article 5 thereof that the purpose of that directive is to impose penalties only in respect of acts constituting both misleading advertising and unlawful comparative advertising and that Legislative Decree No 145/2007 must be interpreted to that effect. Posteshop therefore cannot be alleged to have infringed those rules.

The referring court takes the view that the interpretation adopted by the Tribunale amministrativo regionale per il Lazio is the more persuasive. However, it is of the opinion that the view taken by Posteshop, which, so far as the protection of traders is concerned, claims that the misleading nature of an advertisement is simply one of the conditions for comparative advertising to be held unlawful, is not unfounded, since it is based on recitals 3, 8 and 16 to 18 of Directive 2006/114, which refer to ‘misleading and unlawful comparative advertising’.

It was in those circumstances that the Consiglio di Stato (Council of State) decided to stay the proceedings and 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?
With regard to the protection afforded to traders, is Directive 2006/114 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 penalize misleading advertising, it is not necessary that that latter at the same time should constitute unlawful comparative advertising?
The court based its finding primarily on four considerations:

Firstly, there is the dual objective of Directive 2006/114 pursuant to Article 1. According to the latter, this objective consists in protecting traders against misleading advertising and the unfair consequences thereof, on the one hand, and in laying down the conditions under which comparative advertising is permitted, on the other.

Secondly, the court notes that the terms ‘misleading advertising’ and ‘comparative advertising’ are the subject of two separate definitions, set out in points (b) and (c) of Article 2 of Directive 2006/114 respectively.

Thirdly, from Articles 5(3)(a), 5(3)(b) and 6 of Directive 2006/114 in combination with recitals 16 to 18 in the preamble (save for the Italian version), it is evident from the use of the conjunction 'or' that there is a possibility of adopting measures either against misleading advertising or against unlawful comparative advertising, without requiring, in order for there to be an infringement, those two circumstances to exist cumulatively.

Finally, it is evident from Directive 2006/114 that the provisions concerning misleading advertising and those concerning comparative advertising pursue different aims.
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The court referred the case back to the national court.