The ruling handed down by the CJEU (case C-697/23) on May 8, 2025 clarifies the application of the specific rules on comparative advertising: online comparators – which do not themselves sell the products or services being compared within the meaning of Directive 2006/114/EC – are not subject to the legislation.
A strictly defined concept
Directive 2006/114/EC (article 2) defines comparative advertising as « any advertising which identifies, explicitly or implicitly, a competitor or goods or services offered by a competitor« .
Two elements referring to the notion of competition are therefore essential:
- the existence of an identification of a competitor, even if implicit,
- and the comparison of substitutable products or services, i.e. those meeting the same needs.
In addition, the directive stipulates (article 4) that comparative advertising must comply with a series of conditions in order to be declared lawful, in particular verifying whether :
- it compares goods or services meeting the same needs or serving the same purpose ;
- it objectively compares one or more essential, relevant, verifiable and representative characteristics of these goods and services, including price;
- it does not discredit or denigrate the trademarks, trade names, other distinctive signs, goods, services, activities or situation of a competitor;
- it does not cause confusion among professionals, between the advertiser and a competitor, or between the advertiser’s trademarks, trade names, other distinctive signs, goods or services and those of a competitor.
It should be noted that each Member State ensures in its domestic legislation that there are adequate and effective means of combating misleading advertising and enforcing the provisions on comparative advertising in the interests of professionals and competitors.
Online comparators and the notion of competition
In this case, the Court of Justice of the European Union (CJEU) was asked to give a preliminary ruling on a website offering an online insurance comparison service that gave users the chance to compare various products, including insurance, free of charge.
The site thus positioned itself as a comparator, providing consumers with information on offers from several operators, classified and evaluated according to various criteria, including price, without itself selling the products or services, but acting at most as an intermediary.
An insurer in the motor insurance sector decided to bring proceedings before the German courts, claiming that the comparison system was illegal under German comparative advertising law.
In this context, the German courts referred a question to the CJEU for a preliminary ruling on whether the Directive’s requirement of an objective comparison covering one or more essential, relevant, verifiable and representative characteristics of the goods or services being compared could be achieved by means of a rating or points system.
The CJEU did not need to answer this question directly.
For the CJEU, the notion of comparative advertising presupposes that the author of a comparison is itself a competitor of the operators being compared, i.e. that it offers substitutable goods or services.
In the case of an independent comparator, however, this competitive link does not exist. The same applies when the company acts as an intermediary, enabling consumers to conclude contracts with companies offering the products or services in question, without itself operating on the market for these products or services.
Consequently, comparison sites do not fall under the specific regime of comparative advertising.
The scope of this clarification is significant, as it affirms that comparison site publishers are not subject to the same constraints as advertisers in direct competition