ECJ: Insurers and insurance comparison portals/intermediaries are not competitors

At the beginning of May 2025, the Court of Justice of the European Union (CJEU) ruled (judgment of 8 May 2025; Case C 697-23) that a German insurer and a German online comparison portal for insurance policies, which not only compares but also brokers insurance policies, are not competitors within the meaning of Art. 2 lit. c of Directive 2006/114/EC of the European Parliament and of the Council of December 12, 2006 concerning misleading and comparative advertising (Directive 2006/114).

At first glance, this decision is surprising because the result is – apparently – incompatible with the rather generous practice of a broad definition of competitor under German law. On closer inspection, this decision will correctly only have a narrow impact. This is because the ECJ ruled on a special constellation in the area of comparative advertising and therefore came to a necessary narrow interpretation of the term "competitor" in accordance with EU law.

Initial case

The ECJ's decision was prompted by a question from the Regional Court of Munich I to the ECJ regarding the interpretation of European law in a German legal dispute. In the legal dispute pending before the Regional Court of Munich I, a German insurance company brought an action against an online comparison portal for insurance due to inadmissible comparative advertising. This online comparison portal offers its users the opportunity to compare insurance offers. In addition to other criteria, the online comparison portal highlights a so-called "tariff grade" (1.0 to 4.0), its own assessment of the insurance product, on the results page. At the same time, users are given the opportunity to conclude insurance contracts via the respective products compared by the insurers.

The insurance company is of the opinion that, among other things, the presentation of rate grades in the comparison of products constitutes impermissible comparative advertising. These are purely value judgments. Value judgments should not be the subject of comparative advertising. The insurance company thus accuses the online comparison portal of violating Section 6 (2) No. 2 UWG. According to this provision, anyone who engages in comparative advertising is acting unfairly if the comparison is not objectively based on one or more material, relevant, verifiable and typical characteristics or the price of the goods or services. § Section 6 UWG is based on Directive 2006/114. The Regional Court of Munich I therefore asked the ECJ to interpret this directive. In essence, it asked the ECJ whether permissible comparative advertising can also exist if the comparison takes the form of a grading system (Munich Regional Court I, decision of 7.11.2023, case reference: 1 HK O 5720/21).

Decision of the ECJ

However, the ECJ did not answer this question. Instead, it ruled that there was no "comparative advertising" within the meaning of the Directive in this case because the parties were not competitors – which the Regional Court still had to examine. The online comparison portal was not a competitor of the insurance company. This also applies insofar as it brokers insurance policies. The question posed by the Regional Court therefore no longer arose for the ECJ. Because if the parties are not competitors, there is no comparative advertising within the meaning of the Directive. Comparative advertising within the meaning of Directive 2006/114 is – only – any advertising which directly or indirectly identifies a competitor or the products or services offered by a competitor, Article 2(c) of Directive 2006/114. c Directive 2006/114. According to the ECJ, a prerequisite for the status of a competitor in relation to comparative advertising is the substitutability of the goods or services offered by the undertakings on the market (see ECJ, judgment of April 19, 2007, C-381/05 = GRUR 2007, 511 para. 28 – De Landtsheer Emmanuel). This is the reason why Article 4 of Directive 2006/114 refers to "goods or services meeting the same needs or intended for the same purpose".

Based on this, the services of the insurance company and the online comparison portal are not substitutable for the ECJ. While the insurance undertaking offers insurance policies, the online comparison portal does not offer its own insurance policies, but limits itself to comparing third-party insurance services and, if necessary, facilitating the conclusion of a contract as an intermediary. As an intermediary for insurance services, the online comparison portal neither provides insurance services nor does it dispose of them. The parties are therefore "active in different service markets".

Scope of the concept of competitor

The concept of competitor applied by the ECJ under EU law is therefore narrower than the broader concept of competitor according to the legal definition in German law pursuant to Section 2 (1) No. 4 UWG. According to this definition, a "competitor" is any entrepreneur who is in a specific competitive relationship with one or more entrepreneurs as a supplier or purchaser of goods or services. According to this broader term, insurers and insurance brokers (i.e. also intermediaries) can also be competitors. If this concept of competitor were to be applied, the insurance company and the online comparison portal would be competitors – at least insofar as they broker insurance policies.

Due to the requirements of the Directive, the term "competitor" within the meaning of Section 6 UWG, which is based on the Directive, must be interpreted in accordance with the Directive. This means that only the narrower definition of competitor under EU law is relevant. This does not contradict the case law of the Federal Court of Justice. The Federal Court of Justice assumes a uniform, broad interpretation of the term "competitor" in German law. However, it then recognizes exceptions to this – for example in the context of Section 6 UWG – insofar as an interpretation in line with the directive requires this (BGH, judgment of 5.11.2020, file no: I ZR 234/19 = GRUR 2021, 497 marginal no. 40 – Secondary market for life insurance policies).

Outlook and practical advice

As the ECJ states, the Regional Court of Munich I must now examine more closely whether the respective services – in particular insurance services and the brokerage of insurance services – are substitutable. The ECJ has already made a decision in this regard with regard to the content of the file. It remains to be seen whether the Regional Court of Munich I will follow its reasoning. It will also have to consider whether it actually makes a difference for consumers on the internet to conclude an insurance contract directly via the insurer's website or by following a link from a comparison portal, broker or similar. It is only in this rather formal respect that the online offers and the respective services differ. Whether consumers – like the ECJ – would speak of "different service markets" of an insurance company and an intermediary of insurance services seems very doubtful in any case. If there were no differences for consumers in this respect, the services would probably be substitutable in this respect and the parties would therefore be competitors.

The decision shows that, in practice, it is still necessary to carefully examine which of the competitor terms should be correctly applied in each individual case and with what scope. The facts on which the ECJ's decision is based clearly show how decisive this can be.