Comparative advertising and price: Implementation of Directive 97/55/EC in Germany and England compared

Dissertation / Doktorarbeit von Leonie Marder

Abstract:

With the coming into force of Directive 97/55/EC, one of the issues that arose was as to how EU Member States will choose to implement the provisions concerning admissibility of comparative advertising.

This dissertation will focus on the Directive’s transposition into English and German law with special regard to price comparisons, each model of implementation being situated at the extreme end of the scale.

English law, having traditionally supported comparative advertising now has had to face a much stricter approach put forward by the Directive. We shall enquire into the extent to which, in absence of an English law of unfair competition, s.10(6) of the 1994 Trade Marks Act, the torts of passing off and injurious falsehood, and the British Code of Advertising provide for compliance in that sphere.

German law, on the other hand, having long opposed comparative advertising, has readily incorporated Directive 97/55 into §§2 and 3 of its 1909 Act Against Unfair Competition (UWG). German literature on the Act’s compliance with the Directive has been widespread and the respective analysis will thus be limited to assessing opinions of academics, lawyers, judges, and members of the German government.

I then compared those two models of implementation from the wider angle of the civil law/common law divide and general principles underlying Community law, before finally making proposals for amendments and assessing the impact the Directive had on each national law system.

Effectively, German law has thus, in my view, provided for implementation to a fuller extent, as well as being the Member State which has felt the Directive’s impact much more strongly than England.

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