Therefore it does not meet the requirements of article l

May 22, 2006, cooperative society groupings of purchases of Centres Leclerc (Galec) put online a site at the address , event which could remain unnoticed if this site did not object to designate the cheapest retail signs. Enrolling in a bold and innovative communication policy, this site was based on a strategy of comparison between the players in the competition, which everyone agrees to say that it is particularly risky to implement. The editor of this site to provide consumers a tool enabling them to compare the different signs of the retail price level in the stated objective of boosting competition in this area. Unlike the real price comparers, engaged in a comparison of traditional price for each product, to indicate the price charged by several points of sale, the site proposed by geographic scale a difference as a percentage of a panel or basket type.

Since its launch, the site has attracted critical and polemical in the middle of the distribution, but also among the panelists and consumer associations, some seeing more a strategy of communication than a real tool to compare prices between distributors of objective and fair manner. Specifically, he alleged to the editor of the site a lack of transparency, objectivity and representativeness of the index.

In this context, the company Carrefour hypermarkets, believing that the existence of this site was clearly illegal, assigned, on 1 June, the editor of the site so that it is an injunction to stop the operation and publishing, but also its image hosting, to order him to make it inaccessible because contrary to article l. 121 - 8 of the Code of consumption, relating to comparative advertising.

By order of 7 June 2006 (1), of the referee allowed the claims that the site was "manifestly contrary to the requirements of article l. 121 - 8 of the Code of consumption and is patently illegal disorder which should put an end without further delay." The Galec and the host of the site respectively was ordered to cease any edition and exploitation of the disputed site, under penalty of 30,000 euros per day of delay, and to make the site inaccessible.

A misleading slogan

This decision confirms the fact that comparative advertising is a difficult practice art. This explains the little attraction have advertisers in its regard, even if the order of August 23, 2001 (2) has eased his regime by removing prior disclosure to the competitors covered by comparison.

Advertisers who opt for this type of communication in effect take a risk, to the extent where the criteria for assessment of this type of advertising are arduous, and particularly tenuous border between lawful and unlawful advertising. In this case, the discussions focused more on the terms and conditions selected for comparison on the index method in itself. Indeed, it was mainly criticized the editor of the site have neither informed nor on the methods, parameters, products or services selected to perform a comparison found to be limited to the total supply. These deficiencies have made impossible audits, while comparative advertising must be verifiable by any one for him to exercise his own judgment. This is the reason why advertisers opting for this policy must clearly provide the terms of the comparison.

In this case, the judge considered that the comparison "cannot be presented as objective and relevant", in the absence of these elements. Therefore, it does not meet the requirements of article l. 121 - 8 of the Code of consumption, which makes these two features essential and critical comparative advertising criteria lawful, to protect consumers and preserve a healthy competition. The lack of information, and therefore of any possibility of check gaps advanced, allowed the judge to consider "the slogan of a very large generality is misleading". Comparative advertising is lawful only if "it is not misleading or likely to mislead (3)", however, clearly illegal disorder is characterized, thus justifying the closure of the site.

Galec, by a press release of June 7, said that if he took note of the order of the same day, he would appeal this and expect a judgment on the merits. Furthermore, he confirmed his intention to publish compared prices and to pursue his "comparator initiative". In this displayed commitment, there is no doubt that the decision is the first episode of a series which might well shake the great distribution throughout the summer and feed the judicial Chronicle. Case to follow...