The CJEU has recently ruled in the case HUK-COBURG Haftpflicht-Unterstützungs-Kasse Case C-697/23 that the rules on comparative advertising in the Misleading and Comparative Advertising Directive (2006/114/EC)
do not encompass an online comparison service that does not sell the goods or services it compares and, therefore, does not compete with them.
The Directive sets out the criteria for lawful comparative advertising and is implemented in the UK through the Business Protection from Misleading Marketing Regulations 2008 (BPRs). The Directive and the BPRs define comparative advertising as advertising that explicitly or implicitly identifies a competitor, or the goods or services offered by a competitor.
The case arose in the context of a dispute about a comparison website, on which a German insurance company’s products were listed. The comparison website listed and ranked various insurance products and allowed consumers to enter into contracts with the various products’ providers, alth9ugh it did not market its own insurance products. The insurance company argued that the ranking was a form of comparative advertising and did not comply with the Directive because it lacked the necessary objectivity.
In its ruling, the CJEU commented that the Directive does not specify who qualifies as a competitor. It considered previous case law, especially the decision in De Landtsheer Emmanuel (Case C-381/05). That decision stated that when deciding if businesses are competitors with regard to comparative advertising, the courts need to consider if their goods or services can be substituted for each other, thus operating in the same market.
The CJEU said that it is for the relevant national court to decide if there is a competitive relationship. However, it still went on to find that an insurance product provider and an online comparison service provider for insurance products do not offer substitutable services and, consequently, operate in different markets. As mentioned above, allthough the insurance platform enabled consumers to conclude contracts with insurance companies, it did not offer insurance services itself.
In conclusion, the CJEU said that the concept of ‘comparative advertising’ in the Directive does not include an online comparison service for goods or services provided by an undertaking which is not a ‘competitor’ within the meaning of that provision, that is to say, which does not itself offer the goods or services which it compares and which therefore operates in a market for separate goods or services. The same applies where that undertaking acts as an intermediary and allows consumers to conclude contracts with undertakings which offer the goods or services concerned, without itself operating in the market for those goods or those services.
This decision does not bind the UK courts, but they may consider it when interpreting the BPRs.
