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 comparisonwebsite

offering users of this site the opportunity to compare 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 lawful comparative advertising according to this provision may be fulfilled when the comparison is carried out by means of a system of scoring or awarding points.

For the record, Article 4 (c) provides that “ as far as the comparison is concerned, Comparative advertising; ( c ) it objectively compares one or more material , relevant , verifiable and representative features of those goods and services , which may include price ; ».

Thus, having regard to 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 a company can be considered as constituting a ” comparative advertising “, within the meaning of Article 2 (c) of Directive 2006/114, and, where applicable, whether such 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 first recalls that it has already been specified that the specific element of the notion of comparative advertising is constituted by the identification of a competitor of the advertiser or 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, legality of comparative advertising is subject to the condition that it compares goods or services meeting the same needs or having the same objective.

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 concluded that Article 2 (c) of Directive 2006/114 must be interpreted as meaning that the concept of “comparative advertising ”, referred to in this provision, a service for online comparison of products or services provided by a company which is not a” competitor ”within the meaning of the said provision, that is to say which does not itself offer the products or services it compares and which therefore operates in a market of distinct products or services.