Brussels, 18/11/2010 (Agence Europe) - On 18 November, the Court of Justice delivered a mixed ruling, one much less categorical than the opinion by Advocate General Paolo Mengozzi in Case C-159/09 (see EUROPE 10210) on the legality of advertising comparing food products on price alone.
The Court had to respond to the Bourges trade court (France) in a case between two companies, Lidl SNC and Vierzon Distribution SA (trading under the name Leclerc). Vierzon published advertising comparing receipts for the purchase of a group of similar products - mainly foodstuffs - carried out in four supermarkets trading under four different names. The makes of the goods did not appear on the receipts and the comparison of the baskets of goods suggested that the supermarket Leclerc (Vierzon) was the cheapest. The French court asked the Court if, under the terms of the directive on comparative advertising (84/450/EEC), an advert comparing the prices of goods which responded to the same needs and which could be interchanged, was illegal solely on the grounds that, as it related to food products, taste and the pleasure experienced in eating it could be completely different depending on how and where the goods were produced, ingredients used and the expertise of the maker.
In response, the Court said, in line with the Advocate General's opinion, that, in itself, this would not prevent the comparison of such products from satisfying the requirements set out by the said provision. However, it went on, the products should be identifiable and the advert in question may be deemed to be misleading: - if it causes consumers mistakenly to believe that the selection of products made by the advertiser is representative of the general level of his prices as compared with those charged by competitors, and that they will make savings of the order claimed in the advert by regularly buying their everyday consumer goods from the advertiser rather than the competitors; - or if, for the purposes of a comparison conducted exclusively on prices, food products were selected which have different features capable of significantly affecting the average consumer's choice, without such differences being apparent from the advertising concerned. (F.G./transl.rt)