Can the energy label of vacuum cleaners be misleading?

vacuum-cleaner-268179_960_720The European Court ruled in the case C‑632/16 Dyson Ltd, Dyson BV v BSH Home Appliances NV. The case concerns the following:

Both Dyson and BSH place on the market vacuum cleaners which, in accordance with Delegated Regulation No 665/2013, 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, inter alia, BSH for misleading consumers and claims that it is guilty of unfair commercial practices. It is in that context that Dyson brought an action before the referring court, the Voorzitter van de rechtbank van koophandel te Antwerpen (President of the Commercial Court, Antwerp, Belgium).

As a first step, the referring court rejects Dyson’s claim that BSH carried out an unfair commercial practice by listing energy class A on the energy labels of the vacuum cleaners its markets. Such a classification is indeed the result of tests carried out with an empty dust bag, the referring court considering that test to be the only one enabling the annual energy consumption of vacuum cleaners to be assessed.

As a second step, however, the referring court notes that Dyson is correct to note that the tests carried out with an empty dust bag are not in accordance with normal use of a vacuum cleaner and that they do not allow devices to be compared where they operate on different principles, namely (i) vacuum cleaners which, like those marketed by BSH, are equipped with a dust bag whose pores gradually obstruct its use, thereby requiring the motor to generate more power and, (ii) vacuum cleaners of the Dyson brand, which are not equipped with such a bag and whose use has no impact on the power the motor must generate. Therefore, it considers the question to be whether, by neglecting to specify the test method used, BSH has misled consumers.

The referring court notes, in that regard, that BSH is merely complying with Delegated Regulation No 665/2013. That regulation governs in a very precise manner the appearance of the energy label and the references that must appear there, such that, in determining what information to disclose to the consumer, BSH is bound by the limitations of that medium. In the light of Article 7(1) and (3) of Directive 2005/29, that court is of the view that it should examine whether BSH had some freedom in relation to the information it decides to feature on the devices it markets in terms of their energy consumption.

The referring court further notes that, in addition to the energy label, required by Delegated Regulation No 665/2013, BSH adds other symbols to its vacuum cleaners, including a green label stating ‘Energy A’, indicating that the vacuum cleaner has attained class A in energy efficiency overall, an orange label stating ‘AAAA Best rated: A in all classes’, indicating that the vacuum cleaner has attained class A in cleaning performance in respect of both carpets and hard floors, in energy efficiency and in dust re-emissions, as well as a black label with the image of a carpet and stating ‘class A Performance’, indicating that the vacuum cleaner has attained class A with regard to dust pick-up on carpet.

That court notes that BSH is hereby producing information that has already been fully communicated by the energy label and questions whether Delegated Regulation No 665/2013 authorises such a practice.

In those circumstances, the Voorzitter van de rechtbank van koophandel te Antwerpen (President of the Commercial Court, Antwerp) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Can strict compliance with [Delegated Regulation No 665/2013] (without supplementing the label as defined in Annex II thereto with information about the test conditions which lead to the classification in an energy efficiency class in accordance with Annex I) be regarded as a misleading omission within the meaning of Article 7 of [Directive 2005/29]?

(2)  Does [Delegated Regulation No 665/2013] preclude supplementing the label with other symbols which communicate the same information?’

The Court’s decision:

1. Article 7 of Directive 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 and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council must be interpreted as meaning that the act of not providing consumers with information on the testing conditions that resulted in the energy classification indicated on the label relating to the energy class of vacuum cleaners, the model of which is shown in Annex II to Commission 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 does not constitute a ‘misleading omission’ within the meaning of that provision.

2. Delegated Regulation No 665/2013, read in the light of Article 3(1)(b) of Directive 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, must be interpreted as meaning that it prohibits the display, in a place other than the label relating to the energy class of vacuum cleaners, the model of which is shown in Annex II to Delegated Regulation No 665/2013, of labels or symbols recalling the information contained on that energy label, if such display is likely to mislead or confuse end-users with respect to the consumption of energy of the vacuum cleaner marketed at retail at issue during its use, which is for the referring court to verify, in view of all the relevant factors and having regard to the perception of the average end-user, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors.

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