Clarification of the concept of "comparative advertising"

In a judgment of 8 May 2025, the CJEU states that a service for online comparison of products or services provided by a company that is not a “competitor” does not fall within the concept of “comparative advertising”.

As part of this case, a company under German law operates an online comparison website offering users of this site the possibility of comparing different products, including insurance formulas, free of charge. Such a comparison is made on the basis of a series of criteria, in particular the price, by means of ratings assigned to the different insurance packages.  

An insurance company, particularly in the motor insurance sector,  initiated proceedings before the German regional court alleging that the comparisons offered on the website were contrary to German law. More specifically, the question is whether Article 4 (c) of Directive 2006/114 should be interpreted as meaning that the conditions for lawful comparative advertising under this provision can be fulfilled when the comparison is carried out by means of a scoring or point allocation system. 
 

As a reminder, Article 4 (c) provides that “with regard to comparison, comparative advertising is lawful as long as the following conditions are met: […] (c) it objectively compares one or more essential, relevant, verifiable and representative characteristics of these goods and services, including possibly the price”.  

Thus, in view of the elements that emerge from the request for a preliminary ruling, it is necessary to examine whether an online comparison service for insurance products provided by an undertaking can be considered as constituting “comparative advertising”, within the meaning of Article 2 (c) of Directive 2006/114, and, if so, whether such a form of advertising meets the lawfulness criteria established by that Directive. 

In order to answer this question, the Court of Justice of the European Union recalls first of all that it has already been specified that the specific element of the concept of comparative advertising consists of the identification of a competitor of the advertiser or of the goods and services it offers (judgments of 19 April 2007, De Landtsheer Emmanuel. C-381/05, EU:C:2007:230, paragraph 27). Therefore, it is decisive to determine whether the two companies can be qualified as “competitors”, it being specified that the notion of competitor is based on the substitutability of the goods or services that these companies offer on the market. Thus, the lawfulness of comparative advertising is subject to the condition that it compares goods or services that meet the same needs or have the same purpose.  

However, in this case, the two companies do not operate in the same market. One intervenes in the insurance sector, while the other does not offer such services, but merely compares online different formulas of insurance services offered by insurance companies and, where appropriate, offers, as an intermediary, the possibility of concluding contracts with the insurance companies that provide the compared services. 

Thus, the CJEU deduces, while recalling that it is for the referring court to verify it more fully, that the offers of these companies are not substitutable and therefore operate on different service markets. 

In the end, the Court of Justice concludes that Article 2 (c) of Directive 2006/114 must be interpreted as meaning that the concept of “comparative advertising“, referred to in that provision, does not include a service for the online comparison of products 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 products or services it compares and which therefore operates on a market of distinct products or services.