9 March 2017

Comparative markets - supermarkets and hypermarkets 

The CJEU recently issued its ruling in case C-562/15 on comparative advertising comparing prizes between shops of different sizes and formats.

The request for a preliminary ruling came after a chain of supermarkets, Carrefour, launched a marketing campaign, where the prices from a certain type of shops (Carrecour's Hypermarkets) were compared with prices from shops of different size and format of the supermarket chain, Intermarché.

One of the questions referred to the CJEU concerned whether directive 2006/114, article 4, should be interpreted as meaning that advertising, which compares the prices of products sold in shops having different sizes or formats is unlawful.

The CJEU reiterated that under Directive 2006/114 comparative advertising must compare prices objectively and must not be misleading. The CJEU also stated that while the provision does not explicitly require the format or size of the shops selling the goods whose prices are being compared to be similar, such advertising cannot be regarded as permitted unless all of the conditions laid down in that article are satisfied, including the criteria of objectivity.

The CJEU concluded that:

"32. […] 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 […]

33. 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.”

On that basis, the CJEU concluded that under these circumstances such advertising is liable to be misleading towards consumers and does not fulfill the objectivity criteria, unless consumers are informed clearly that the comparison is made between the prices shops of different size and format.

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