The matter at hand

The parties in this matter, Dyson and BSH, are competitors in the field of vacuum cleaners. Vacuum cleaners must be labelled with an energy label when sold. That label reflects the results of tests which are carried out with an empty dust bag. Dyson criticises BSH for misleading consumers by listing energy class A on the energy labels of the vacuum cleaners, while neglecting to specify the test method used.

According to Dyson, the tests carried out with an empty dust bag are not in accordance with normal use of a vacuum cleaner and they do not allow devices to be compared where they operate on different principles, namely, on the one hand, the vacuum cleaners marketed by BSH equipped with a dust bag whose pores gradually obstruct its use, thereby requiring the motor to generate more power, and, on the other hand, the vacuum cleaners marketed by Dyson which are not equipped with such a bag and whose use has no impact on the power the motor must generate.

Dyson brought an action before the referring court, the President of the Commercial Court in Antwerp in Belgium. The referring court noted that BSH is bound by the limitations of Directive 2010/30Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products and the Delegated Regulation No 665/2013Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners, which governs in a very precise manner the appearance of the energy label and the references that must appear. The referring court wondered whether BSH had some freedom in relation to the (energy) information featured on the vacuum cleaner and whether the act of not providing consumers with information on the specific testing conditions that resulted in the energy classification A constitutes a ‘misleading omission’ within the meaning of Article 7 of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.

The judgment of the ECJ

The ECJ establish that the (non)-communication of information relating to the energy efficiency of a product displayed for retail, where it originates from a trader, constitutes a commercial practice directly connected with the sale of that product to consumers. In that regard, it is irrelevant that the information in question be unfavourable to the trader’s interests or that he may have communicated that information in order to comply with the provisions of Directive 2010/30Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products and Delegated Regulation No 665/2013Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (paragraph 31).

First, the ECJ assess the absence of information on the testing conditions from the energy label itself. The ECJ notes that Article 3(4) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market provides that, in the case of conflict between the provisions of that directive and other EU law rules regulating specific aspects of unfair commercial practices, the latter are to prevail and apply to those specific aspects (paragraph 32). The Directive 2010/30Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products and Delegated Regulation No 665/2013Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners constitute EU law rules governing specific aspects of unfair commercial practices within the meaning of Article 3 (4) (paragraph 33), so these rules prevail (paragraph 34).

The ECJ determines in paragraphs 35 – 40 of the judgment that pursuant to the Directive 2010/30Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products and Delegated Regulation No 665/2013Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners no information relating to the conditions under which the energy efficiency of vacuum cleaners was measured may be added to the energy label. According to the ECJ, “It follows from that prohibition that, pursuant to Article 3(4), Article 7 of the directive cannot apply to the absence, from the energy label, of information on vacuum cleaner energy efficiency testing conditions”  (paragraph 41).

Second, the ECJ assess the absence, from places other than the energy label, of information concerning testing conditions. In this regard the ECJ recalls that according to Article 7(1) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market “a commercial practice is to be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, in view of the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is further apparent from paragraph 5 of the same article that information requirements established by EU law in relation to commercial communications including advertising and marketing are to be regarded as material” (paragraph 42).

The ECJ rules that the testing conditions of the energy efficiency tests cannot be deemed to constitute material information for the average consumer (paragraph 43) since Directive 2010/30Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products and Delegated Regulation No 665/2013Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners do not require that the testing conditions are mentioned (paragraph 44).  Accordingly, the lack of reference to a vacuum cleaner’s energy efficiency testing conditions is not capable of constituting a misleading omission within the meaning of Article 7 of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (paragraph 45).