The Regulatory Framework for Comparative Advertising in Europe - Time for a New Round of Harmonization

Abstract

More than 25 years ago the European legislator identified the rules of comparative advertising as a prime target of market integration . In 1997 the Directive on Comparative Advertising was enacted, aiming at a full harmonisation. And yet, a comparative survey recently carried out under the auspices of the International League of Competition Law has revealed a discomforting extent of uncertainty and – even worse – straightforward dissent on some fundamental questions relating both to the scope of application and the conditions of lawfulness of comparative advertising. On the other hand a respectable body of case law has evolved since the enactment of the Directive on Comparative Advertising. Moreover, it was only in the years to follow that some large jurisdictions, in which comparative advertising used to be outlawed until then, became familiar with this commercial practice. At the same time it has become clear that some of the perceived safeguards against anti-competitive comparative advertising are overly restrictive. At the bottom line, these facts seem to advocate a careful modernisation of the European rules governing comparative advertising.This article will first explore the empirical grounds of the legal framework of comparative advertising and address some of the structural shortcomings of the present regulatory framework (I.), then report the basic results of the comparative analysis (II.) and draw some conclusions with regard to a possible modernisation (III.) that are finally summarized (IV.)