De Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne and Veuve Cliquot Ponsardin SA (A.G. Mengozzi for the ECJ; C-381/05; 30.11.06) The Brussels Court of Appeal (the “BCA”) referred a number of questions to the ECJ for a preliminary ruling on the interpretation of Article 2(2a) of Directive 84/450 EEC on misleading and comparative advertising.

In May 2002, Comité Interprofessionnel du Vin de Champagne (“CIVC”) and Veuve Cliquot Ponsardin SA (“Veuve Clicquot”) brought an action for unlawful comparative advertising against De Landtsheer Emmanuel SA (“De Landtsheer”), a Belgian marketer and producer of beer. De Landtsheer had the preceding year launched a beer called “Malheur Brut Réservé” which allegedly had been brewed using a process based on the production method of sparkling wines. In its advertisements, De Landtsheer had referred to the new product as (i) the first BRUT beer in the world, (ii) “Champagnebeer”, (iii) having the characteristics of sparkling wine and Champagne and (iv) a light beer produced according to the traditional method. With the exception of (i), judgment was given in favour of the claimants and the defendant was consequently barred from using these and/or similar references in its marketing of the product. The defendant appealed to the BCA and the claimants cross-appealed, arguing that De Landtsheer was in breach of unlawful comparative advertising as outlined in Article 2(2a) of the Directive.

The BCA asked the ECJ whether the definition of comparative advertising covers advertisements in which the advertiser refers only to a type of product, so that in those circumstances such advertisements must be regarded as referring to all undertakings which offer that type of product, and each of them can claim to have been identified. Article 2(2a) defines “comparative advertising” as “…any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.” The A.G. stated that the reference does not have to identify each undertaking which offers that type of product or related goods to fall within the scope of Article 2(2a). However, a reference may have the effect of implicitly identifying a competitor or the goods offered by that competitor within the meaning of Article 2(2a) only if, in the light of all of the facts of the specific case, it enables an average consumer who is reasonably well informed and reasonably observant and circumspect to conjure up the image of one or more specific undertakings which offer that type of product or related goods.

The BCA asked the ECJ whether the definition of comparative advertising covers advertisements in which the advertiser refers only to a type of product, so that in those circumstances such advertisements must be regarded as referring to all undertakings which offer that type of product, and each of them can claim to have been identified. Article 2(2a) defines “comparative advertising” as “…any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.” The A.G. stated that the reference does not have to identify each undertaking which offers that type of product or related goods to fall within the scope of Article 2(2a). However, a reference may have the effect of implicitly identifying a competitor or the goods offered by that competitor within the meaning of Article 2(2a) only if, in the light of all of the facts of the specific case, it enables an average consumer who is reasonably well informed and reasonably observant and circumspect to conjure up the image of one or more specific undertakings which offer that type of product or related goods.

The BCA also requested information in relation to what factors should be taken into consideration when establishing whether a competitive relationship exists between the advertiser and the undertaking to which the advertisement refers, to which the A.G. noted that in order to establish whether such a relationship is present, the goods or services which that undertaking offers must be taken into consideration. It must be established that the advertiser and that undertaking are actually or potentially in competition in relation to some part of the range of products or services each offers. It would be sufficient if there is a degree of demand substitutability, albeit limited, between a product or service of the advertiser and a product or service of the other undertaking.

The A.G. further clarified that advertising which, although containing a comparison, does not fall within the scope of Article 2(2a) must, therefore, be assessed by reference to the applicable national legislation. This excludes the transposition of the abovementioned provisions, and the other provisions of Community law which may be relevant.

Finally, the BCA queried whether Article 3a(1)(f) meant that any comparison between products that do not have designation of origin and products with designation of origin is lawful. The A.G. opined that comparative advertising is only lawful if it refers to another product with the same designation of origin.