In December 2012, the plaintiff launched a major television advertising campaign, entitled ‘garantie prix le plus bas Carrefour’ (Carrefour lowest price guarantee), which compared the prices of 500 leading brand products charged in its shops and in shops of competitors, including defendant, and offered to reimburse consumers twice the price difference if they found cheaper prices elsewhere.
The television advertisements broadcast showed price differences favourable to the plaintiff and, in particular, products sold in the defendant's shops were shown as being consistently more expensive than those sold by the plaintiff. From the second televised advertisement onwards, all of the defendant's shops selected for comparison were supermarkets and all of the plaintiff's shops were hypermarkets. That information appeared only on the home page of the plaintiff's website, where it was stated in small print that the guarantee ‘applied only in Carrefour and Carrefour Planet shops’ and that it therefore did ‘not apply in Carrefour Market, Carrefour Contact or Carrefour City shops’. In the television advertisements, the word ‘Super’ appeared in smaller letters beneath the name Intermarché.
On 2 October 2013, after having given the plaintiff notice to stop disseminating that advertisement, the defendant brought proceedings against the plaintiff before the tribunal de commerce de Paris (Commercial Court, Paris, France).
By judgment of 31 December 2014, the tribunal de commerce de Paris (Commercial Court, Paris) ordered the plaintiff to pay to the defendant EUR 800,000 as compensation for the harm sustained, upheld the applications for the prohibition of the dissemination of the advertising and ordered the publication of that judgment.
That court held, inter alia, that, by adopting a misleading method of selecting sales outlets and distorting the representativeness of the price comparisons, the plaintiff had failed to comply with the objectivity requirements under Article L. 121-8 of the Consumer Code, and that those breaches of the requirement of objectivity in a comparative advertising campaign constituted acts of unfair competition. It also pointed out that the information featuring on the plaintiff's website did not make it clear to consumers that the comparison was being made between shops of different sizes.
The plaintiff appealed against that judgment to the cour d’appel de Paris (Court of Appeal, Paris, France) and, in the context of the preparation of the case for final decision, requested that the matter be referred to the Court of Justice.
Before that court, the plaintiff argued that the interpretation of Directive 2006/114, which Article L. 121-8 of the Consumer Code seeks to transpose, was necessary in order to resolve the dispute in the main proceedings with regard to the question whether a comparison of the prices of selected goods was permitted only if the goods were sold in shops which had the same size or format.
The defendant opposed the request for a preliminary ruling, arguing that the proposed question was not necessary for the purpose of resolving the dispute in the main proceedings since what was in issue in those proceedings was not a prohibition of comparing the prices of products sold in shops of different sizes but rather the assessment of the misleading nature of the advertising to the extent that consumers were not clearly and objectively informed of the difference in the format or size of the shops being compared.
The judge responsible for preparing the case for final decision noted that it was indeed the very principle of comparative price advertising between shops with different formats that had formed the basis of the decision of the court of first instance and noted that the cour d’appel de Paris (Court of Appeal, Paris), which is required to examine the dispute in its entirety, must address that point. Furthermore, the judge pointed out that, if the principle of comparative advertising of prices between shops having different formats were to be considered to be consistent with Directive 2006/114, the cour d’appel (Court of Appeal) would also have to consider whether the fact that the shops whose prices were being compared were of different sizes and formats constituted material information, within the meaning of Directive 2005/29, that must necessarily be brought to the attention of the consumer and, if so, to what degree and/or via what medium that information must be communicated to consumers.
In those circumstances, the cour d’appel de Paris (Court of Appeal, Paris) decided to stay the proceedings and to refer three questions to the Court for a preliminary ruling.