Misleading and Comparative Advertising Directive, Article 2, (b) Misleading and Comparative Advertising Directive, Article 3, (b) Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4

ECLI:RO:TBMAR:2019:005

When failing to provide evidence as to the true character of the information advertised alongside the advertising, the trader is exposed to administrative sanctions for misleading advertising.

Following a control action,  company F was fined by the public authorities (DGRFPC) for displaying in the store’s windows some advertising  stating that it has very, very low prices, and that for some products it has the lowest prices in Romania, without presenting evidence to sustain that information; it was ordered to cease these practices. F contested the decision in court, both in first instance and in appeal, trying to prove that the facts criticised were not misleading advertising.

The legal issue regarded what evidence must be presented by a trader in relation to the prices advertised, in order to avoid being sanctioned for misleading advertising.

The Court stated that, regarding the provisions of art. 5(1)(b) of the Law 158/2008, the trader is obliged to provide information relating to the price and the way in which it is calculated along with the advertising . Failing to do this will expose him to administrative sanctions for misleading advertising. The Court refused to take into account the fact that the trader calculated the prices on the basis of the discounts offered by its supplier and applied only low mark-ups (which were displayed in the store).

The Court considered that the evidence to be provided by the trader should be objective. Aspects such as a declaration from the supplier (the sole importer of goods in Romania, who has a clear representation of prices followed by the distributors, including the claimant) or the trader’s own market studies (on prices published on the Internet by similar distributors or retailers) cannot be considered  proper evidence. The Court stated that the proper evidence for the accuracy of the affirmations made in  advertising should be represented by certificates, market studies, or classifications provided /drafted by independent entities.

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The appeal was rejected, and the decision of The Court of First Instance was upheld. The judgement is final. The Court established the standards required as regards  the evidence that a trader should present in order to avoid being sanctioned for misleading advertising.