§1.2.6 Interplay with the Misleading and Comparative Advertising Directive

The Misleading and Comparative Advertising Directive (72) (MCAD) covers business-to-business (B2B) relations. However, its rules on comparative advertising continue to provide a general test, based on fully harmonised criteria, for assessing whether comparative advertising is lawful also in business-to-consumer (B2C) transactions (73). Article 6(2)(a) of the UCPD qualifies as misleading a practice which, including through comparative advertising, creates confusion with any products, trademarks, trade names or other distinguishing marks of a competitor. At the same time, under Article 4(a) of the MCAD, comparative advertising is not permitted if it is misleading under Articles 6 and 7 of the UCPD. Hence, these two Directives cross-reference each other. Being relevant for both B2C and B2B transactions, the conditions for assessing the lawfulness of comparative advertising laid down by Article 4 of the MCAD are rather broad and include also some aspects of unfair competition (e.g. denigration of trade marks). Therefore, the MCAD will either provide conditions for such assessment under the UCPD for B2C transactions or impose additional requirements which are relevant for traders, mainly competitors, in B2B transactions. For those Member States which have extended all or part of the provisions contained in the UCPD to B2B transactions, the UCPD provisions as transposed into national laws will in practice replace the relevant MCAD provisions in B2B relations. It should be noted that some countries have also adopted specific rules for B2B. The Court examined the interplay between the MCAD and the UCPD in the Carrefour case (74), which concerned comparative advertising that may be misleading under Article 7 of the UCPD. The practice involved advertising comparing the prices of products sold in shops having different sizes or formats, where those shops are part of retail chains each of which includes a range of shops having different sizes or formats (e.g. hypermarkets and supermarkets) and where the advertiser compares the prices charged in shops having larger sizes or formats in its retail chain with those displayed in shops having smaller sizes or formats in the retail chains of competitors. The Court considered that this type of advertising practice could be unlawful within the meaning of Article 4(a) and (c) of the MCAD, read in conjunction with Article 7(1) to (3) of the UCPD, unless consumers are informed clearly and in the advertisement itself that the comparison was made between the prices charged in shops in the advertiser’s retail chain having larger sizes or formats and those indicated in the shops of competing retail chains having smaller sizes or format (75).

← 1.2.5 · All articles · 1.2.7 →

Source: EUR-Lex (Cellar) · retrieved 2026-09-07