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3. 'Misleading advertising' is defined in Article 2(2) as 'any advertising which in any way, including its presentation, deceives or is likely to deceive the persons 1 — Original language: Italian. to whom it is addressed or whom it reaches 2 — C o u n c i l Directive 84/450/EEC of 10 September 1984 and which, by reason of its deceptive relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning nature, is likely to affect their economic misleading advertising (OJ 1984 L 250, p. 17). behaviour or which, for those reasons, 3 — Direcrive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC injures or is likely to injure a competitor'; concerning misleading advertising so as to include com- parative advertising (OJ 1997 L 290, p. 18; deadline for in determining whether advertising is mis- implementation: 23 April 2000). leading, Article 3 states that account must

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be taken of all its features. 4 However, (a) it is not misleading according to Article 7(1) provides that the directive Articles 2(2), 3 and 7(1); 'shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection, with regard to misleading advertising, for consumers, persons carrying on a trade, business, craft or profession, and the gen- eral public'. (b) it compares goods or services meeting the same needs or intended for the same purpose;

4. Comparative advertising is defined in Article 2a of the directive as 'any advertis- (c) it objectively compares one or more ing which explicitly or by implication material, relevant, verifiable and rep- identifies a competitor or goods or services resentative features of those goods and offered by a competitor'. In that connec- services, which may include price; tion, Article 3a of the directive provides as follows:

(f) for products with designation of origin, ensured at national level, with regard to it relates in each case to products with misleading advertising, for consumers, per- the same designation; sons carrying on a trade, business, craft or profession, and the general public, Article 7(2) provides that that paragraph, 'shall not apply to comparative advertising as far as the comparison is concerned'. The reason for that provision is given in par- ticular in the 18th recital in the preamble to (g) it does not take unfair advantage of the Directive 97/55, where it is explained that reputation of a trade mark, trade name the provision on the introduction of more or other distinguishing marks of a restrictive national measures 'should not competitor or of the designation of apply to comparative advertising, given origin of competing products; that the objective of amending the said directive is to establish conditions under which comparative advertising is per- mitted'.

(h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name. The relevant national provisions

2. Any comparison referring to a special 6. Directive 97/55 was transposed in Aus- offer shall indicate in a clear and unequivo- tria by means of an amendment to the law cal way the date on which the offer ends or, on unfair competition (Bundesgesetz gegen where appropriate, that the special offer is den unlauteren Wettbewerb, hereinafter subject to the availability of the goods and referred to as the 'UWG') which entered services, and, where the special offer has into force on 1 April 2000. However, the not yet begun, the date of the start of the provisions of the UWG were already being period during which the special price or interpreted in the case-law in the light of other specific conditions shall apply'. the provisions on comparative advertising contained in Directive 84/450.

8. From 1 April 2000, in order to give full effect to the directive, Paragraph 2(2) of the UWG was partly amended, the new version 10. Pippig is a firm of specialist opticians, stating that comparative advertising was with three shops in Linz, selling well- permitted so long as it complied not only known brands of spectacles. It obtains with Paragraphs 1 and 2(1) but also with supplies direct from the manufacturers, Paragraphs 7 and 9(1) and (3) concerning the with whom it has a permanent relationship, prohibition on discrediting competitors, and it has a representative selection of the creating confusion with their distinguishing various brands in each of its shops. marks and taking unfair advantage of their reputation. At the same time a new Para- graph 2(3) was added, providing that in any case comparative advertising must refer only to products with the same designation 11. Hartlauer, on the other hand, is a 5 — The order for reference appears to imply that the provision major distribution chain with large stores in question was interpreted broadly in the Austrian case- throughout Austria, selling products of law, which in practice extended its scope to comparative advertising of any kind. various kinds (electronic goods, computers, I - 3102

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12. In September 1997, Hartlauer arranged for a leaflet to be distributed throughout Austria, with a print run of almost two million, advertising its own optical prod- ucts as compared with spectacles on sale at specialist opticians. The leaflet claimed in particular that 52 price comparisons with 14. According to the information provided various Austrian opticians showed that by the referring court, the said comparison spectacles sold by Hartlauer cost ATS was carried out by means of a test purchase 204 777 less overall (on average ATS 3 900 made on 8 July 1997 from one of Pippig's less per pair of spectacles). The leaflet also shops by one of Hartlauer's employees, stated that an optician's profit on the sale who asked to have that particular type of of Zeiss lenses amounted to 717% and that rare and very expensive Zeiss lenses set in the low prices charged by Hartlauer were the Eschcnbach frame. The test spectacles the reason for the constant attacks levelled were collected on 1 August and were then against it by the optical industry. photographed for the advertising leaflet, where they appeared twice, representing

6 — The script of the radio commercial ran as follows: "... here is the result of this new price comparison: on 1 August a pair of near-vision spectacles with the same dioptric iniinher and the same Fschenbach frame cost 5 785 Scnillngs at Pippn; of Linz/ and 2 000 Schillings at Hartlauer. The same goes foi- am· other pair of near-vision or distance spectacles, 'the difference, the price difference, is clear. Yours, Franz Joser Hartlauer...'. The content of the television commercial was smular: 'What does this pair of spectacles cost, including the lenses? At this optician's on the Landstraße in Linz, more than 5 700 Schillings. From me, only 2 000 Schillings. The 13. In addition to these general compari- same goes for any other pair of near-vision or distance sons with specialist opticians, the leaflet spectacles. Yours, Vranz Josef Hartlauer...'.

17. As there are now specific Community (i) whether the comparison between spec- rules on comparative advertising, in order tacles with brand-name lenses and no- to resolve those issues, the Oberster Ger- name lenses is lawful; ichtshof therefore considered it necessary to

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refer the following questions to the Court Is Article 3a(1)(a) of the directive to be of Justice for a preliminary ruling: interpreted as meaning that the comparison of the price of a brand- name product with the price of a non-name product of equivalent quality is not permitted where the name of the manufacturer is not indi- cated, or do Article 3a(1)(c) and '1. Is Article 7(2) of Directive 97/55/EC of Article 3a(1)(g) of the directive pre- the European Parliament and of the clude indication of the manufacturer? Council of 6 October 1997 amending Is the image of a (brand-name) product Directive 84/450/EEC concerning mis- a feature of the product/service within leading advertising so as to include the meaning of Article 3a1l)(c) of the comparative advertising ("the direc- directive? Does it follow from a (poss- tive") to be interpreted to the effect ible) negative answer to this question that "comparative advertising, as far as that any (price) comparison of a brand- the comparison is concerned" means name product with a no-name product the statements regarding the product of equivalent quality is not permitted? offered by the advertiser himself, the statements regarding the product offered by the competitor and the statements regarding the relationship between the two products (the result of the comparison)? Or is there a "comparison" within the meaning of 2. Is Article 7(2) of the directive to be Article 7(2) of the directive only in so interpreted as meaning that differences far as the statements are made regard- in the procurement of the product/ ing the result of the comparison, with service whose features are compared the consequence that misconceptions with features of the advertiser's prod- regarding other features of the com- uct/service must also be assessed solely pared goods/services may be assessed on the basis of Article 3a of the on the basis of a national standard directive? governing misleading statements which is possibly more strict?

4. Is a comparison discrediting within the The first question meaning of Article 3a(l)(e) of the directive if the advertiser selects the goods purchased from the competitor in such a way that a price difference is 19. The first question raises a number of obtained which is greater than the points designed to ascertain, on the one average price difference and/or if such hand, whether a national standard that is

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stricter than the Community rules may be far as we are given to understand, they applied to comparative advertising and, on found that the advertising material com- the other, whether the name of the manu- paring the price charged by Pippig for the facturers must be indicated when compar- Eschenbach frame with Zeiss bifocal lenses ing the price of a brand-name product with and the price charged by Hartlaucr for the the price of a no-name product of equival- same frame with lenses with equivalent ent quality. It will be best to consider these features made by Optimed (a much less two aspects separately, starting with the well known brand) was not permitted in second, in order to preserve a logical cases where there was no indication of the sequence. brand names of the lenses in the spectacles that were being compared. 8 In this con- nection, the referring court is seeking essentially to ascertain, first, whether such comparative advertising is misleading and therefore not permitted under Article 3a(l)(a) of the directive and, sec- ond, whether in such a situation the (a) As to whether the name of the manu- provisions of Article 3a(l)(c) and (g) pre- facturers must be indicated when compar- clude indication of the brand names of the ing the price of a brand-name product with lenses in the spectacles that are being the price of a no-name product of equival- compared. ent quality

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indication as to the brand names of the a competitor. 10 The Court has therefore lenses, should be held to be misleading. The held that in order to determine whether Austrian Government expressed substan- advertising is misleading it is in principle tially the same sentiments, though not in necessary to take 'into account the pre- such clear terms. sumed expectations of an average con- sumer who is reasonably well-informed and reasonably observant and circum- spect'. 11

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services as imitations or replicas of goods missibility of comparative advertising sub- or services bearing a protected trade mark ject to a number of conditions designed to or trade name (Article 3a(l)(d), (e), (g) and prevent it from giving rise to unfair com- (h)). They also point out that the possibility petition. I also agree that the possibility of of indicating the brand names of competi- indicating the brand names of competing tors' products is expressly recognised in the products is clearly confirmed in the 14th 14th and 15th recitals in the preamble to and 15th recitals in the preamble to the the directive, which state respectively that directive, which are at pains to emphasise that in some cases reference to a trade mark or trade name is actually indispensable in order to make comparative advertising effective and that, so long as such reference complies with the conditions laid down by the directive, it is not contrary to the rules on the protection of exclusive rights. (i) 'it may, however, be indispensable, in order to make comparative advertising effective, to identify the goods or ser- vices of a competitor, making reference to a trade mark or trade name of which the latter is the proprietor'; and

advertising on certain conditions. 15The possibly on their quality, which is assumed Court was also careful to point out that 'it to be equivalent) and that the proposed is apparent from Article 6(1 )(c) of First indication of the brand names of the Council Directive 89/104/EEC of products serves simply to identify them, as 21 December 1988 to approximate the stated in the 14th recital in the preamble to laws of the Member States relating to trade the directive. That being so, I do not think marks (OJ 1989 L 40, p. 1) and the Article 3a(1)(c) of the directive can be held case-law of the Court (Case C-63/97 to preclude indication of the products in BMW [1999] ECR 1-905, paragraphs 58 question in advertising of the kind at issue. to 60) that the use of another person's trade mark may be legitimate where it is necess- ary to inform the public of the nature of the products or the intended purpose of the services offered'. 16 30. Lastly, as to Article 3a(1)(g), which provides that the product that is being advertised must not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor, it seems obvious to me that that provision does not, generally speaking, preclude indication of the brand name of competitors' products (indeed it even impli- citly admits it) but merely seeks to prevent possible abuses. 29. Turning now more specifically to the question whether the brand name of a product may be considered to be a material, relevant, verifiable and represen- tative feature of that product and con- sequently a feature susceptible of compari- 31. I should point out in this connection son within the meaning of Article 3a(1)(c) that the Court stated in its judgment in of the directive, I must point out that the Toshiba, cited above, that it would in any Austrian court appears to be labouring event be necessary, when assessing whether under a misapprehension in this connec- the condition laid down in that provision tion. Its question seems to be based on the had been observed, 'to have regard to the idea that indication of the brand names of 15th recital in the preamble to Directive the products mentioned in advertising of 97/55, which states that the use of a trade the kind at issue may give rise to a mark or distinguishing mark does not comparison between the different brands, breach the right to the mark where it which may then become the actual subject complies with the conditions laid down by of the comparative advertising. It is how- Directive 84/450 as amended, the aim ever clear that, on the contrary, the being solely to distinguish between the comparison in such advertising turns essen- products and services of the advertiser tially on the price of the products (and and those of his competitor and thus to highlight differences objectively'. 17 On

32. In the light of that judgment also, I therefore take the view that indication of the brand name of a competitor's products 33. To conclude my observations on this is not contrary to Article 3a(1)(g) where point, I consider that advertising material such indication is justified by the objective of the kind at issue in the present case, requirement to identify the competitor's comparing the retail price charged by two products and highlight the qualities of the traders for a pair of spectacles and stating products that are being advertised (if that the frames are the same and that the necessary by a direct comparison between lenses have the same features but not that them) 20 and that its sole aim is not there- the lenses have different brand names, one very familiar to the public and the other not, is misleading and therefore not per- 18 — Paragraph 5 4 . mitted under Article 3a(1)(a). In such cases, 19 — Paragraph 6 0 . 20 — I should point out in this connection that the Court stated in the judgment in Toshiba that 'in order for there to be c o m p a r a t i v e a d v e r t i s i n g w i t h i n t h e meaning o f Article 2(2a) of Directive 84/450 as amended, it is... 21 — In that case, indication of the competitor's brand name sufficient for a representation to be made in any form could also be contrary to Article 3a(1)(d), which provides which refers, even by implication, to a competitor or to the that comparative advertising must not create confusion in goods or services which he offers. It does not matter t h a t the market place between the advertiser and a competitor there is a comparison between the goods and services or between the advertiser's trade marks, trade names, offered by the advertiser and those of a competitor' other distinguishing marks, goods or services and those of (paragraph 31). a competitor.

35. In that connection, it should be noted first that, in listing the conditions under which comparative advertising is per- mitted, Article 3a(1) of the directive states 36. Pippig and the Austrian Government under (a) that such advertising must not be consider that stricter national standards misleading according to Articles 2(2), 3 and may apply to comparative advertising and 7(1), that is to say with reference either to they naturally cite Article 7(1), invoked in the concept of 'misleading advertising' Article 3a(1)(a), in support of their view. In defined in Articles 2(2) and 3 of the an attempt to resolve the apparent contra- directive or to any national provisions diction between those provisions and

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38. For my own part, I feel I must draw attention first to the shortcomings in the order for reference, which does not fully explain the respects in which the national standard contains a stricter concept of what constitutes misleading advertising than that 37. The Commission and Hartlauer take contained in the Community rules. The the opposite view in their observations, ambiguity of the order for reference in this citing in particular the 18th recital in the connection is also clearly apparent in the preamble to Directive 97/55. This states following passage: 'In the present case the that 'Article 7 of Directive 84/450/EEC question of the scope of Article 7(2) is of allowing Member States to retain or adopt importance. The answer to that question provisions with a view to ensuring more extensive protection for consumers, per- sons carrying on a trade, business, craft or 22 — Emphasis added. profession, and the general public, should 23 — On the meaning of that expression, Hartlauer has not apply to comparative advertising, given explained that in its view it covers assertions regarding the product offered by the advertiser, the product offered that the objective of amending the said by the competitor and the relationship between the two.

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39. However, overlooking the shortcom­ ings of the order for reference and turning in a spirit of cooperation to the observa­ tions of the parties to shed light on the reasons for the reference, it may be sup­ posed that the referring court agreed with 40. In this connection, I recognise that the lower courts' view that comparing there appears to be a contradiction between spectacles with brand-name lenses with Article 3a(l)(a) of the directive, which spectacles with no-name lenses is inherently refers to Article 7(1) in defining the con­ misleading and therefore considered that ditions under which comparative advertis­ those assessments were based on a stricter ing may be permitted, and Article 7(2), understanding of the term 'misleading' than which on the contrary precludes the appli­ that contained in the Community rules. cation of Article 7(1) 'to comparative However, even if that were so, in view of advertising as far as the comparison is my earlier remarks it would in any case be concerned'. I do not think it is possible to get round that problem, as Haitianer and the Commission attempt to do, by ignoring 24 — Emphasis added. one of the two provisions (Article 3a(l)(a)) 25 — In that connection, see, among many others, the |tidgments in Case C-343/90 Lourenço Dias [1992] ECR I-4673, on the ground that it is simply the result of paragraphs 17 and 18; Case C-83/91 Medicke | 1 9 9 2 | ECR 1-4871, paragraph 25; Case C-415/93 Bosman (1995) ECR an error or oversight on the part of the 1-4921, paragraph 6 1 ; Case C-437/97 EK W and Wem & legislature. On the contrary, I think it is Co. [2000] ECR I-1157, paragraph 52; and Case C-36/99 Idéal tourisme |2000] ECR I-6049, paragrapll 20. essential to seek an interpretation of the

41. To that end, I note first that the primary purpose of Directive 84/450 is 'to protect consumers, persons carrying on a trade or business or practising a craft or profession and the interests of the public in general against misleading advertising and 43. However, as Hartlauer and the Com- the unfair consequences thereof' (Article 1). mission rightly point out, following the That is why Article 7(1) provides that the amendments introduced by Directive directive 'shall not preclude Member States 97/55, Directive 84/450 also seeks to har- from retaining or adopting provisions with monise the laws, regulations and adminis- a view to ensuring more extensive protec- trative provisions of the Member States tion, with regard to misleading advertising, concerning comparative advertising in for consumers, persons carrying on a trade, order to remove the obstacles to the free business, craft or profession, and the gen- movement of goods arising from differ- eral public', such as for example national ences between the national laws on the provisions which contain a concept of subject and to assure the freedom to pro- misleading advertising that is stricter and vide services in that field (third recital in the more restrictive than the definition con- preamble to Directive 97/55). To that end, tained in Articles 2(2) and 3 of the direc- the new Article 3a was added to Directive tive. 84/450, providing that comparative adver- tising is, 'as far as the comparison is concerned', to be permitted in all the Member States when the conditions spec- ified in that article are met. 26 And since the amendments introduced by Directive 97/55 are intended to lay down conditions under which comparative advertising is per- 4 2 . In keeping with that purpose, mitted, as the 18th recital confirms, Article 3a(1) laying down the conditions Article 7(2) of Directive 84/450 provides under which comparative advertising may that paragraph (1) 'shall not apply to be permitted provides in subparagraph (a) comparative advertising as far as the that such advertising must not be mislead- comparison is concerned'. ing according to the relevant provisions of the directive or to any stricter national provisions that may be adopted pursuant to 26 — Following the amendments introduced by Directive 97/55, Article 7(1). In that way, the Community Article 1 expressly states that the purpose of the directive is to lay down conditions under which comparative advertis- legislature sought to prevent consumers, ing is permitted.

44. Unlike Hartlauer and the Commission, argued that Article 7(2) of the directive however, I do not think Article 7(2) of the provides that Article 7(1) is not to apply to directive precludes the application to com- comparative advertising 'as far as the parative advertising of a national standard comparison is concerned' precisely because that is stricter than the Community rules in Article 3a lays down the conditions under respect of the definition of comparative which such advertising is permitted only 'as advertising. In my view, the sole purpose of far as the comparison is concerned' and that article is to prevent the permissibility does not require those conditions to be met of comparative advertising 'as far as the in the case of comparative advertising comparison is concerned' from being sub- which refers to a competitor or to goods ject to conditions over and above those laid or services offered by a competitor but does down in Article 3a. In other words, what it not make a real and specific comparison means is that the conditions under which between those goods/services and those of comparative advertising is permitted are the advertiser. 27 exhaustive, precisely because the purpose of the directive is to ensure that, under the conditions specified, such comparisons may be made and released in all the Member States. But, as the conditions expressly laid down in Article 3a(1) include the condition that comparative advertising must not be misleading according to the definition of 'misleading' contained in Articles 2(2) and 3 or to any stricter national provisions that 46. But, above all, this solution is prefer- may be adopted pursuant to Article 7(1), I able because it resolves the apparent conclude that Article 7(2) does not preclude contradiction between the various provi- the application of such national provisions sions of the directive and also effectively to comparative advertising. reconciles the two purposes of the directive, namely, on the one hand, to protect con- sumers, traders and the general public from the dangers of misleading advertising (jus- tifying the application of even stricter national measures against anything 'mis- leading' in advertising material) and, on the other, to lay down an exhaustive list of conditions under which comparative adver- tising is permitted so as to ensure that such comparisons can be made and publicised in all the Member States. The problem with the opposite view, held by Hartlauer and

48. The second question arises from the fact that Pippig has a direct relationship with Eschenbach, from which it obtains regular supplies of the advertised frames, in various colours and sizes, whereas Hart- lauer obtains a small selection of the frames in question, through parallel imports. In that connection, so far as we are given to understand, the Austrian court is in fact seeking to ascertain w h e t h e r , on the strength of Article 7(1) of the directive, Member States may establish indepen- 47. In the light of the foregoing consider- dently that a price comparison is permitted ations, I therefore take the view that the only if the trader making the comparison national authorities may apply to com- and his competitors obtain the goods that parative advertising a national standard are being compared through the same which contains a stricter concept of what distribution channels and thus offer a constitutes misleading advertising than that similar selection of those goods or whether, contained in the Community rules. On the under Article 7(2), such a condition for basis of those considerations, it is also comparative advertising to be permitted possible to suggest a satisfactory solution to may lawfully be imposed only in so far as it the other problem raised by the Austrian is among those laid down in Article 3a of court as to the elements of comparative the directive. If that is the case, the national advertising to which such a stricter national court wants to know whether the condition standard may apply. If it is in fact the case in question is in fact covered by Article 3a. that Article 7(2) is merely intended to prevent Member States from adding to the conditions under which comparative adver- tising is permitted, then it is clear that that provision does not preclude the application of a stricter national standard to all the elements of the comparison, nor is it 49. Neither of the intervening parties con- necessary in this connection to distinguish siders that, generally speaking, Article 3 a of

the directive allows price comparisons directive, it seems obvious to me that between given products only if they are Member States cannot indiscriminately procured through the same distribution prohibit any advertising that compares the channels, nor do they think such a con- price charged for certain products by com- dition can be independently imposed by peting traders who obtain their supplies M e m b e r States on the s t r e n g t h of through different distribution channels. 28 Article 7(1). However, the Austrian Gov- ernment and the Commission, although they consider that this was not so in the present case, observe that the failure to indicate the difference in distribution chan- nel could theoretically give rise to mislead- ing advertising, with the result that under 51. However, as the Austrian Government Article 3a(l)(a) comparative advertising and the Commission have rightly pointed would not be permitted in certain cases out, that does not rule out the possibility where it is important to consumers that that in certain cases such a comparison there be a direct relationship between the could be misleading and therefore not retailer and the manufacturer. Pippig permitted under Article 3a(l)(a) unless it argues, somewhat confusedly, that when was accompanied by some indication of the different distribution channels or a differ- different distribution channels. That might ent selection of products have a material be so, for example, in cases where it was effect on the price, when advertising refers important for consumers to be able to get to those elements, or when the consumer is spare parts or original accessories from led to believe that the distribution channels their own retailer at any time or avail are the same, comparative advertising must themselves of special after-sales services be considered to be permitted only if it does that require a direct relationship with the not mislead consumers with regard to those manufacturer. I agree that such special elements. circumstances do not appear to obtain in cases such as the present one since, accord- ing to the order for reference, 'it makes no difference... to the purchaser... whether the seller has purchased the spectacles on the basis of a permanent supplier relationship with the manufacturer or by some other method'.

enees in the selection of products offered to not yet begun, the date of the start of the the public, a price comparison could also period during which the special price or be misleading if the advertising material other specific conditions shall apply'. indicates (or suggests) that the retailers are offering a similar selection of the products in question. In that case, the material could mislead consumers about the selection offered by the competing traders and thus 54. For present purposes it must however about an element that could affect their be noted that, in the three cases mentioned choice between two or more traders selling earlier, the permissibility of comparative the same product. However, I do not think advertising will not be determined by advertising material of the kind at issue, whether there is a comparison of the price which compares the price of a specific type charged for products obtained through of frame without giving any indication, different distribution channels but rather directly or by implication, as to the selec- by whether the information contained in tion offered by the traders concerned, is in the advertising material is inadequate or itself such as to mislead consumers on that misleading. I therefore consider that the aspect of the matter. answer to this question should be that there is no provision in Article 3 a of the directive to the effect that comparative advertising relating to the price charged for certain products by competing traders is permitted only if they procure their supplies through the same distribution channels. In view of the fact that the conditions under which comparative advertising is permitted, as laid down in that article, are exhaustive, such a condition cannot be imposed inde- pendently by the national authorities.

(ii) to that end, spectacles (frames and permissibility of such comparative advertis- lenses) were carefully selected so as to ing should be assessed solely in relation to obtain the greatest possible or at least a the conditions laid down in Article 3a of greater than average price difference. the directive but adds that it is for the In that connection, the Austrian court national court to determine whether the is seeking, first, to ascertain whether, deliberate initiation of a price comparison with reference to the method used for which is favourable to the advertiser, the purpose of comparative advertis- through a test purchase made before the ing, Article 7(2) of the directive may start of the advertising campaign, may give nevertheless allow Member States to rise to misleading advertising. Pippig takes impose conditions as to permissibility essentially the same view in its observa- over and above those laid down in tions, in that it recognises that Article 7(2) Article 3a; if that is the case, it wants to of the directive also covers the means used know whether a comparison made by for the purpose of comparative advertising means of a test purchase of the kind at but claims that that is not the real issue in issue is to be regarded as unlawful the present case and that the Court should within the meaning of that article of rule that the question whether comparative the directive. advertising is misleading should also be assessed in relation to such means.

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imposed independently by the national if the comparison is not based on a test authorities. purchase made before the products con- cerned were offered for sale by the orig- inator of the comparison and if it does not concern products carefully selected so as to obtain a very substantial price difference. As the conditions under which comparative advertising is permitted, as laid down in that article of the directive, are exhaustive, such a condition cannot be imposed inde- 58. As to whether advertising material may pendently by the national authorities. be misleading, I consider that a price comparison of the kind at issue may be misleading and consequently unlawful within the meaning of Article 3a(1)(a) of the directive in cases where the advertising material is released before the products in question are offered at the price quoted or where the comparison is presented in such The fourth question a way as to give the false impression that the price difference indicated also applies to other products. However, I do not think a comparison can be regarded as misleading merely because it was based on a test purchase made before the products con- 60. By the fourth question, the Austrian cerned were offered for sale by the orig- court seeks to ascertain, lastly, whether inator of the comparison or because the price comparisons discredit competitors products selected were being sold at very and are therefore unlawful within the different prices by competitors. On the meaning of Article 3a(1)(e) of the directive: second point, it seems to me to be both (i) where products showing a greater than logical and natural for retailers to compare average price difference are selected for the only the price of products which they sell purposes of the comparison and/or on much more favourable terms than their comparisons are repeatedly made so as to competitors. create the impression that the prices charged by competitors are generally excessive, and (ii) where the information on the identity of competitors is not restricted to the extent absolutely necessary and, in particular, where, in addition to their names, their company logos (if they exist) and their shops are shown.

62. Hartlauer takes the opposite view in its observations. On the first point, it observes in particular that a reasonably well-in- formed and shrewd consumer would not 64. Lastly, the Commission considers that be likely to think that the difference advertising material is unlikely to discredit indicated in the advertising material in the c o m p e t i t o r s w i t h i n the m e a n i n g of price charged for some products repre- Article 3a(1)(e) of the directive merely by sented the average difference in the price comparing the price of products that arc charged for all the products sold by the not comparable or by making a comparison competitors. It adds that it would be that is unobjective or downright misleading contrary to Article 3a to allow the prices and that, in such cases, the question charged for certain products to be com- whether the comparative advertising is pared only if the difference between them permissible should on the contrary be represented the average or to introduce determined by reference to the provisions special restrictions as to the number and contained in Article 3a(1)(a) and (c). It adds frequency of comparisons. On the second that, in principle, competitors' shops and point, Hartlauer observes that showing a logos may be shown (without any distor- competitor's shop with the company logo is tions) in price comparisons but such not in itself likely to discredit or denigrate comparisons may be unlawful within the that competitor unduly but is, on the meaning of Article 3a(1)(e) if they indicate contrary, an effective way of identifying one or more competitors at random to him. draw attention to the high prices normally charged in a particular profession.

may be misleading if the comparison is also by pictures of his shop (with his presented in such a way as to give the false company logo) is not in itself sufficient to impression that the price difference indi- discredit him within the meaning of cated also applies to other products. How- Article 3a(1)(e) of the directive. Any dis- ever, in that case, any discredit to com- credit that might theoretically arise from petitors will be directly attributable to the comparative advertising of the kind at issue fact that the comparative advertising is is attributable not to the fact that com- misleading and must therefore be declared petitors are identified by pictures of their unlawful on the basis of Article 3a(1)(a) of shop as well as by their name and address, the directive. but rather to the content and presentation of the comparison. There are in fact only two possibilities: either the comparisons are such as to discredit competitors, in which case they are unlawful within the meaning of Article 3a(1)(e) even if the competitors are identified only by their name and address; or the comparisons do not dis- credit competitors, in which case they are certainly not unlawful within the meaning 66. However, as I have already observed, I of that provision merely because they do not think that simply comparing prod- additionally identify the competitors by ucts sold by different traders at very pictures of their shop. different prices is in itself likely to create the impression that the same difference applies to other products, nor do I think the frequency with which the advertising material is released is in itself likely to create that impression. So, if the advertising material does not suggest that the same price difference applies to other products and does not therefore give the false impression that the prices charged by com- petitors are generally excessive, there can clearly be no presumption of discredit to competitors, as any discredit, in the cases mentioned in the question, would arise precisely from that impression. 68. I therefore consider that the answer to the fourth question should be that price comparisons of the kind at issue do not discredit competitors and are consequently not unlawful within the meaning of Article 3a(1)(e) of the directive merely on the grounds that (i) products showing a greater than average price difference are selected and/or comparisons are repeatedly made, and (ii) the competitors concerned 67. Turning now to the second aspect of are identified, not only by their name and the question, I agree with Hartlauer and the address but also by pictures of their shop Commission that identifying a competitor with their company logo.

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as laid down in that article, are exhaustive, such a condition cannot be imposed independently by the national authorities.

(3) There is no provision in Article 3a of Directive 84/450/EEC as amended by Directive 97/55/EC to the effect that comparative advertising concerning the price charged for certain products by competing traders is permitted only if the comparison is not based on a test purchase made before the products concerned were offered for sale by the originator of the comparison and if it does not concern products carefully selected so as to obtain a very substantial price difference. As the conditions under which comparative advertising is permitted, as laid down in that article of the directive, are exhaustive, such a condition cannot be imposed independently by the national authorities.

(4) Price comparisons of the kind at issue do not discredit competitors and are consequently not unlawful within the meaning of Article 3a(l)(e) of Directive 84/450/EEC as amended by Directive 97/55/EC, merely on the grounds that:

(i) products showing a greater than average price difference are selected and/or comparisons are repeatedly made, and