Legality of comparative advertising according to the Court of Cassation

This comparative advertisement was published by Carrefour in the newspaper Ouest-France on 30 January 2015.

On 3 April 2015, Caen Distribution then had a report drawn up by a bailiff in order to reconcile, on the one hand, the prices indicated by Carrefour in its communication and, on the other hand, the prices charged by the two Leclerc hypermarkets targeted by the advertisement, both on the prices indicated in the computer management software of the points of sale in question and on the prices indicated on the receipts on the same date.

Caen Distribution, considering that the comparative advertising was based on its prices but that they were inaccurate, assigned Carrefour on the basis of Articles L. 120-I, L. 121-8 and L. 121-12 of the Consumer Code for unfair commercial practices and in particular, the deceptive commercial practices carried out by the violation of the regulations applicable to the comparative advertising

The Court of Appeal of Caen, in finding that comparative advertising was not unlawful, dismissed the appeal filed by Caen Distribution. The latter then filed an appeal in cassation.

The Court of Cassation, confirming the solution rendered by the trial judges, recalls the principle under Article L. 121-8 of the Consumer Code¹ (from its former wording applicable to the case) according to which ” to be lawful, an advertisement that compares goods or services by identifying, implicitly or explicitly, a competitor or goods or services offered by a competitor, must not be misleading or misleading ».

The Court underlines in this respect ” QU misleading any advertising which in any way, including its presentation, misleads or is likely to mislead the persons to whom it is addressed or whom it touches and which, because of its misleading, is likely to affect their economic behaviour or which, for these reasons, is detrimental or is likely to be detrimental to a competitor ».

The Court goes on to also specify that a commercial practice ” is deemed misleading if it contains false information, and is therefore misleading or in any way, including by its general presentation, misleads or is likely to mislead the average consumer, even if the information presented is factually correct ».

In short, the element that leads judges to consider the comparative advertising whether it is lawful or not is not primarily concerned with the veracity of the information compared but mainly with the effects on the recipients of the advertising, by assessing whether said information has altered or has been likely to alter their economic behaviour. In other words, it is whether the recipient of the advertisement made a decision or was likely to make a decision that they would not have made without the comparative advertising.

In this case, Carrefour had presented 227 products in the comparative advertising, of which Leclerc demonstrated that the price of 45 of them was erroneous because they were higher than those actually used.

In addition, Carrefour announced that the average basket of a Leclerc customer was on average 15.9% more expensive than its own, whereas in view of the erroneous prices, the difference in the basket was actually 13%.

Despite these differences, the Commercial Chamber of the Court of Cassation considers that nothing demonstrates how, despite the erroneous indications The pool…comparative ublicity, wherein the load informed that the price of the basket was 13% more expensive and not 15.9% more expensive as indicated in the advertisement, would have changed his behavior ».
It confirms the position adopted by the appellate judges who considered that nothing is likely to demonstrate how “this comparative advertising, even based on false elements within the limit previously indicated, was likely to modify the economic behaviour of the consumer“.

To conclude, in the light of this case law, comparative advertising is not misleading and therefore unlawful only if it is proven that it has altered or has been likely to alter the economic behaviour of its recipient and therefore that Comparative advertising; resulted in the consumer making a decision or could have made a decision that they would not have made without it.

Court of Cassation – Commercial Chamber – March 22, 2023 – No.21-22.925

¹ Former Article L. 121-8 now L. 122-1 of the Consumer Code by Ordinance No.2016-301 of 14 March 2016