Opinion of Advocate General Darmon delivered on 15 September 1992

1 Original language: French.

2 See Annex 5 to the observations of Yves Rocher.

3 A consequence of the action for an injunction could be a complete judicial prohibition against the advertising in question.

4 Reference for a preliminary ruling, p. 3 of the English translation.

5 It should be pointed out that the national court is referring to the legislation prohibiting that type of advertising by price comparison and not to the legislation which permits an action for an injunction to be brought against such advertising, which could result in its prohibition by the court.

6 Comparative advertising is generally understood as meaning advertising in which the prices of one product are compared with those of competitors.

7 Paragraph 6e(2)(1) of the UWG.

8 See the observations of the defendant company, p. 11 of the French translation.

9 Paragraph 6e(2)(2) of the UWG. If the advertising of the French company Yves Rocher had not been designed to catch the eye, the price comparison which it contained would have been lawful.

10 OJ 1984 L 250, p. 17.

11 (COMÍ91) 147 Final), OJ 1991 C 180, p. 14.

12 Ibid., Article 1.

13 Judgment in Case 788/79 Cilli and Andres [1980] ECR 2071, paragraph 5.

14 Judgment in Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, paragraph 8.

15 Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837.

16 Ibid., paragraph 5, emphasis added.

17 See the judgments in Case 12/74 Commission v Germany [1975] ECR 181, paragraph 14, and Case 16/83 Prantl [1984] ECR 1299, paragraph 20.

18 Judgment in Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR 4575.

19 Paragraph 9.

20 Paragraph 15; see also the judgments in Case 152/78 Commission v France [1980] ECR 2299, paragraph 11, Case C-362/88 GBINNOBM [1990] ECR I-667, paragraph 7, Case C-241/89 SARPP [1990] ECR I-4695, paragraph 29, and Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad [1991] ECR I-4151, paragraphs 10 and 11.

21 Judgment in Case C-362/88, cited above, paragraph 8.

22 Observations of the Commission, p. 10 of the French translation.

23 Judgment in Case 120/78, cited above, paragraph 8, and subsequent case-law; see, in particular, the judgment in Case C-362/88, cited above, paragraph 10.

24 Observations of the applicant in the main proceedings, p. 9 of the French translation.

25 See the observations of Yves Rocher, p. 12 of the French translation.

26 Observations of the German Government, p. 7 of the French translation.

27 for eye-catching publicity constitutes an abridgement, and whoever abridges frequently does not tell the whole truth, A. Reuter, Neues zu Euro-Marketing und §§ 6e, 7 UWG, Betriebsberater, 1990, p. 1652.

28 See paragraphs 13 and 14 of the judgment in Case C-362/88, cited above.

29 Paragraph 18.

30 Paragraph 21.

31 Judgment in Case C-362/88, cited above.

32 See the judgment in Case 382/87 Buet and Another v Ministère Public [1989] ECR 1235, in particular paragraph 13, where it was held that the application to imported products of a prohibition on canvassing in relation to the sale of educational material laid down by a national law on the protection of consumers is not incompatible with Article 30 of the Treaty.

33 Judgment in Case 94/82 De Kikvorsch [1983] ECR 947, paragraphs 11 and 12.

34 Ibid., paragraph 13. See also Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1).

35 See the observations of the German Government, p. 6 of the French translation.

36 See, in that regard, p. 7 of the observations of the French Government.

37 See, in that regard, Reuter, op. cit., p. 1652.

38 Statutory Instrument 1988, No 2078.

39 See Article 43 of the abovementioned Law, Moniteur Belge of 29 August 1991.

40 Diãrio da República No 194 of 25 August 1986.

41 See Article 3 of Decree No 77-105 P of 2 September 1977, BOSP of 3 December 1977.

42 This observation also tallies with the suggestion of the German Government (p. 5 of the French translation) that the Court should apply Article 36 of the Treaty on the ground that, according to the Paris Convention, protection against unfair competition constitutes one of the aims of industrial property.

43 Ibid., p. 10 of the French translation.

44 See, in that regard, the Opinion of Advocate General Lenz in Case C-362/88, cited above, point 39.

45 Observations of the German Government, p. 11 of the French translation.

46 Mattera, Le Marché Unique Européen, Jupiter 1990, p. 235; see the judgments in Cases 16/83, cited above, paragraph 20, and Joined Cases 177 and 178/82 Van de Haar and Kaveka de Meern [1984] ECR 1797, paragraph 13.