European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Comparative advertising, introduced under European law by Directive No 97/55 , is now governed by Directive No 2006/114 , which has codified the provisions relating to misleading advertising for traders and the conditions of lawfulness of comparative advertising contained in the 1984 directive, after adoption of Directive No 2005/29. The directive, which carries out minimum harmonization for provi …

Scope of application

Comparative advertising, introduced under European law by Directive No 97/55 , is now governed by Directive No 2006/114 , which has codified the provisions relating to misleading advertising for traders and the conditions of lawfulness of comparative advertising contained in the 1984 directive, after adoption of Directive No 2005/29. The directive, which carries out minimum harmonization for provisions on misleading advertising (Article 8(1), paragraph 1), prevents Member States from retaining or adopting stricter national provisions regarding comparative advertising (Article 8(1), paragraph 2).

The concept of comparative advertising is defined as “any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor” (Article 2) . It requires the existence of a competitive relationship, which implies the offer on the market of substitutable goods or services, i.e. meeting the same needs or intended for the same purpose . When assessing the existence of a competitive relationship between the advertiser and the undertaking identified, the court must take account of the current state of the market and consumer habits, as well as how those habits might evolve, the part of the European territory in which the advertisement is disseminated, the particular characteristics of the product which the advertiser intends to promote and the image he wishes to impart to it .

When the competitor is not explicitly designated , the mere reference to a type of products can be considered to be comparative advertising where it is possible to identify one or several undertakings or the goods that they offer as being actually referred to by the advertisement . Thus the following are implicit references, likely to confer a comparative character to an advertisement: the use of a sign similar to the mark of a competitor of the advertiser, where it may be perceived by the average consumer as a reference to that competitor or to the goods and services which he offers , or the indication, in the catalogue of a supplier of spare parts and consumable items suitable for the products of an equipment manufacturer, of product numbers which he himself sells, where such an indication constitutes a positive statement that the technical features of the two products are equivalent .

Directive No 97/55/EC of 6 October 1997 amending Directive No 84/450/EEC concerning misleading advertising so as to include comparative advertising, OJ L 290 of 23 October 1997, 18.

Directive No 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising, OJ L 376 of 27 December 2006, 21. 

According to the Court of Justice, this concept also covers the use of a domain name and the use of metatags in a website's metadata whose purpose is to promote the supply of specific goods or services and to suggest to potential consumers that they will find, under that name, a website relating to those goods or services but does not cover registration of a domain name, which is a purely formal act: Case C-657/11 Belgian Electronic Sporting Technology NV, Judgment of 11 July 2013, LawLex201300001131JBJ.

Case C-381/05 De Landtsheer Emmanuel [2007] ECR I-3115, LawLex200900000596JBJ.

Comp. Case C-487/07 L'Oréal and others [2009] ECR I-5185, LawLex201100000386JBJ: use of comparison lists explicitly designating the competing products.

Case C-533/06 O2 Holdings ET O2 (UK) [2008] ECR I-4231, LawLex200900001037JBJ: the use, in an advertisement, of a sign similar to the mark of a competitor of the advertiser where it is perceived by the average consumer as a reference to that competitor or to the goods and services which he offers, is comparative advertising.

Case C-112/99 Toshiba Europe [2001] ECR I-7945, LawLex200900000387JBJ.

European Business Law

212. Scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

212. Scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise