On 8 February 2017, the European Court of Justice (ECJ) handed down a judgment on a reference for a preliminary ruling stating that comparative advertising can be misleading if consumers are not provided with information on the different format or size of shops where the products are sold. In particular, according to the ECJ, consumers shall be informed of all the relevant elements regarding the comparison, including whether it is:

“made between prices charged in shops having larger sizes or formats in the advertiser’s retail chain and those displayed in shops having smaller sizes or formats in competitors’ retail chains”.

On 2 October 2013, ITM Alimentaire International SASU (ITM) sued Carrefour for damages alleging that the television advertising campaign launched by the company, consisting in a comparison between products charged in its shops and in competitors’ shops, was misleading. On 31 December 2014, the Commercial Court of Paris awarded damages to ITM and granted an injunction prohibiting the dissemination of the advertising. Carrefour appealed the judgment to the Court of Appeal of Paris, which made a reference for a preliminary ruling to the ECJ, asking whether:

• a comparison of the price of goods sold by retail outlets is permitted only if the goods are sold in shops having the same format or of the same size;

• the fact that the shops whose prices are compared are of different sizes and formats can be considered as a material information that must be brought to the knowledge of the consumer; and

• If so, to what degree and/or via what medium that information must be disseminated to the consumer.

The ECJ found that in price comparative advertisements consumers shall be:

“informed clearly and in the advertisement itself that the comparison was made between the prices charged in shops in the advertiser’s retail chain having larger sizes or formats and those indicated in the shops of competing retail chains having smaller sizes or formats”.

Gabriele Giunta contributed to this article.