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According to Article 4 of Directive 2006/114, comparative advertising is permitted when some specific conditions are met. Such advertising cannot be misleading and it must objectively compare one or more material features of the goods at issue, which may include price.

The European Court of Justice was asked whether it was permitted or not a comparative advertising made by a retail chain, which compared the prices of products sold in its own hypermarkets with those charged in the supermarkets of a competitor, without clearly indicating the difference of sizes and formats between the shops.

With Judgment of 8th February 2017, in the case C-562/15, the Court has stated that an advertising, such as that abovementioned, may be unlawful where the shops compared are part of retail chains each of which includes a range of shops having different sizes or formats. Therefore, such advertising is not unlawful provided that the advertiser clearly specifies that the comparison is made between the prices charged in specific shops of its own retail chain (for example, hypermarkets) and a different format of shops of a competing retail chain (for example, supermarkets). 

It is then for the referring court to ascertain whether the advertising at issue satisfies the objective comparison requirement and/or is misleading.