General Court annuls Delegated Regulation 665/2013 on energy labelling of vacuum cleaners

The IPKat is happy to host the following contribution by Mina Kianfar (Unverzagt von Have, Hamburg) on an issue that, despite having to do with vacuum cleaners, is often perceived as dusty: energy labelling obligations.

Here’s what Mina writes:

Vacuum cleaner producer Dyson has successfully challenged an EU non-legislative act: in its judgment of 8.11.2018, T-544/13, the General Court (GC) has annulled Commission Delegated Regulation (EU) No 665/2013 on the energy labelling of vacuum cleaners.

Background

Vacuum cleaners must, in accordance with Directive 2010/30/EU on energy labelling (replaced by Regulation (EU) 2017/1369), carry an energy label when sold. The Commission has laid down details on the content and design of the label in Delegated Regulation (EU) No 665/2013, specifying that the calculation of the energy performance of vacuum cleaners should be based on values obtained when the receptacle is empty.

Dyson took the view that this requirement places bagless vacuum cleaners, which provide constant cleaning performance irrespective of the contents of the receptacle, at a disadvantage. It posited that the use of empty receptacles conceals the decline in the energy performance of bagged vacuum cleaners, which only occurs during use, due to dust clogging the pores.

The GC initially dismissed Dyson's application for annulment of the Delegated Regulation by judgment of 11 November 2015. Following the annulment of the judgment by the Ninth Chamber of the CJEU (judgment of 11.5.2017, C-44/16), the GC has now annulled the Delegated Regulation.

Dyson also brought an action against its competitor BSH Home Appliances (BSH) before the Antwerp Commercial Court in national, parallel proceedings for misleading omission claiming that BSH should inform consumers about the use of empty receptacles in measuring energy performance.

The national court then referred to the CJEU the question, inter alia, whether a misleading omission within the meaning of Art. 7 of the Unfair Commercial Practices Directive (UCPD) could be assumed even if BSH complied with all the requirements of Delegated Regulation No 665/2013. This question was answered in the negative by the Fourth Chamber of the CJEU in its judgment of 25 July 2018, C-632/16. It stated that duties to provide information to consumers are fulfilled by compliance with the exhaustive provisions of the Delegated Regulation; additional information about the test conditions is not required.

Or does he/she like it instead?

The GC judgment

The GC annulled the Delegated Regulation. The Court found that the Commission had overturned the EU legislature's policy decision according to which consumers are to be informed about the energy performance of appliances during their use (para. 63). The measurement conditions should be as close as possible to actual conditions of use, which requires that the vacuum cleaner receptacle be filled to a certain level (para. 69 et seq. with reference to the judgment on appeal of the CJEU). This requirement of Directive 2010/30/EU on energy labelling was disregarded by the Commission, an act that went beyond its competence.

According to the GC, the Delegated Regulation is void in its entirety. The Court did not accept a partial annulment. It found that the calculation method chosen by the Commission cannot be severed from the remainder of the act, since the entirety of the information on the energy label is to be collected on the basis of such an unlawful calculation method (para. 80 et seqq.).

Comment

The Ninth Chamber of the CJEU had already made it clear in the judgment on appeal that the method of measuring based on tests with empty receptacles cannot be accepted. The annulment of the Delegated Regulation by the GC therefore constitutes a consistent implementation of the requirements resulting from the judgment on appeal.

Surprisingly, however, the Fourth Chamber of the CJEU in the order for reference rendered a few months ago in the parallel proceedings "Dyson / BSH" did not assess the findings of the Ninth Chamber from the previous year. The two CJEU judgments are inconsistent and raise considerable practical issues.

The Fourth Chamber stated that there was no obligation to provide information on the test conditions with reference to the provisions of the Delegated Regulation. This Regulation has now been annulled by the General Court.

However, in view of the very specific requirements laid down by the Ninth Chamber of the CJEU from the previous year, the annulment was foreseeable. It is therefore surprising that the Fourth Chamber had not stayed the parallel proceedings "Dyson/BSH" to await the judgment of the General Court. Its findings on the interplay between the duties to provide information under the Delegated Regulation on the one hand and information obligations under the UCPD on the other may now have become obsolete after just a few months.

For the time being, it will no longer be possible to invoke the (void) Delegated Regulation in order to oppose an obligation under Article 7 UCPD to inform consumers about the use of empty receptacles in measuring energy performance. Pending the adoption of new rules by the European Commission, it may be advisable to use existing energy labels together with a clarifying statement on the test conditions.