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Case Details

Case Details
National ID C-562/15
Member State European Union
Common Name link
Decision type Court of Justice decision
Decision date 08/02/2017
Court European Court of Justice
Subject
Plaintiff Carrefour Hypermarchés
Defendant ITM Alimentaire International SASU
Keywords advertising, communication medium, comparative advertising, material information, misleading omissions, price comparison

Misleading and Comparative Advertising Directive, Article 4, (a) Misleading and Comparative Advertising Directive, Article 4, (c) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Consumer Rights Directive, Chapter 3, Article 7, 3.

(1) Article 4(a) and (c) of Directive 2006/114, read in conjunction with Article 7(1) to (3) of Directive 2005/29 must be interpreted as meaning that advertising, such as that at issue in the main proceedings, which compares the prices of products sold in shops having different sizes or formats, where those shops are part of retail chains each of which includes a range of shops having different sizes or formats and where the advertiser compares the prices charged in shops having larger sizes or formats in its retail chain with those displayed in shops having smaller sizes or formats in the retail chains of competitors, is liable to be unlawful, within the meaning of Article 4(a) and (c) of Directive 2006/114, unless consumers are informed clearly and in the advertisement itself that the comparison was made between the prices charged in shops in the advertiser’s retail chain having larger sizes or formats and those indicated in the shops of competing retail chains having smaller sizes or formats.

(2) It is for the referring court, in order to assess the lawfulness of such advertising, to ascertain whether, in the case in the main proceedings, in the light of the circumstances of the present case, the advertising at issue satisfies the objective comparison requirement and/or is misleading, first, by taking into consideration the average consumer of the products in question who is reasonably well informed and reasonably observant and circumspect and, secondly, by taking into account the information contained in that advertising, in particular the information concerning the shops in the advertiser’s retail chain and those in the retail chains of competitors whose prices have been compared and, more generally, all of the elements in that advertising.
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.
(1) Must Article 4(a) and (c) of Directive 2006/114, read in conjunction with Article 7(1) to (3) of Directive 2005/29 be interpreted as meaning that advertising, such as that at issue in the main proceedings, which compares the prices of products sold in shops having different sizes or formats, where those shops are part of retail chains each of which includes a range of shops having different sizes or formats and where the advertiser compares the prices charged in shops having larger sizes or formats in its retail chain with those displayed in shops having smaller sizes or formats in the retail chains of competitors, is liable to be unlawful, within the meaning of Article 4(a) and (c) of Directive 2006/114, unless consumers are informed clearly and in the advertisement itself that the comparison was made between the prices charged in shops in the advertiser’s retail chain having larger sizes or formats and those indicated in the shops of competing retail chains having smaller sizes or formats?

(2) Is it for the referring court, in order to assess the lawfulness of such advertising, to ascertain whether, in the case in the main proceedings, in the light of the circumstances of the present case, the advertising at issue satisfies the objective comparison requirement and/or is misleading, first, by taking into consideration the average consumer of the products in question who is reasonably well informed and reasonably observant and circumspect and, secondly, by taking into account the information contained in that advertising, in particular the information concerning the shops in the advertiser’s retail chain and those in the retail chains of competitors whose prices have been compared and, more generally, all of the elements in that advertising?
The court states that, on the one hand, Article 4 of Directive 2006/114 does not require the format or size of the shops selling the goods whose prices are being compared to be similar and, but, on the other hand, that a comparison of the prices of comparable products sold in shops of different formats and sizes, in itself, is likely to contribute to the achievement of the objectives of comparative advertising which constitute established case law of the Court, and does not undermine fair competition or the interests of consumers. That being said, advertising which compares the price of products sold in shops of different sizes or formats cannot be regarded as permitted, within the meaning of Article 4 of Directive 2006/114, unless all of the conditions laid down in that article are satisfied. In particular, such advertising must compare prices objectively and must not be misleading.

In the present case, advertising in which the advertiser, with a view to comparing the prices of products sold in its shops with those of products sold in competitors’ shops, uses, on the one hand, the prices charged in shops having larger sizes or formats in its retail chain and, on the other hand, the prices charged in shops having smaller sizes or formats in the retail chains of competitors, whereas each of those retail chains contains a range of shops of different sizes and formats, is liable to deceive the average consumer by giving that consumer the impression that all the shops forming part of those retail chains have been taken into consideration in making the comparison and that the price differences indicated are valid for all the shops in each chain irrespective of their size or format, whereas that is not necessarily the case. That advertising is liable to influence the economic behaviour of the consumer by causing him to take a decision in the mistaken belief that he will benefit from the price differences claimed in the advertising when buying the products concerned in all the shops in the advertiser’s retail chain rather than in shops belonging to the competing retail chains. It follows that such advertising is liable to be misleading within the meaning of Article 4(a) of Directive 2006/114.

It is for the referring court to ascertain whether, in the case in the main proceedings, in the light of the circumstances of the case, the advertising at issue fails to meet the objective comparison requirement and is misleading
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The court referred the case back to the national court.