Judge erroneously interpreted EU consumer regulations in comparative advertising dispute between supermarkets

Advertising – competition law – comparative advertising between supermarket chains – whether comparative advertising carried on by Dunnes Stories was in compliance with the rules contained in the European Communities (Misleading and Comparative Advertising) Regulations (S.I. No. 774 of 2007) – Directive 2006/114/EC – Consumer Protection Act 2007 – High Court found that each of three elements of the in-store advertising campaign was in breach of multiple regulatory provisions – whether the price advertising campaigns employed by Dunnes’ in the summer of 2013 which employed Aldi’s trade marks for identification and comparison purposes complied with these conditions – Aldi was entitled to a restraining injunction – function of the Court of Appeal – High Court’s Interpretation of the 2007 Regulations – trial judge began with an erroneous interpretation of the 2007 Regulations – the test applied by Aldi – regulatory regime for comparative advertising – expert evidence – Dr. Ennis’ evidence was not being expressly referred to and analysed against other experts’ testimony – Article 4(2)(d) of the 2007 Regulations – findings of the High Court regarding a breach of Article 4(2)(d) of the 2007 Regulations cannot be sustained – Article 4(2)(c) of the 2007 Regulations – misleading practice under Sections 43 to 46 of the 2007 Act – trial judge proceeded from an incorrect premise so far as the construction of the 2007 Regulations is concerned and that this error invalidates the conclusions that he reached in regard to these products – appeal allowed.