Opinion of the Advocate General — ECLI:EU:C:2018:95
Date: 2018-02-22
Language of the case: Dutch
Subject matter: Energy;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 25 July 2018 1. Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Misleading omission — Meaning — Absence of information on the testing conditions that led to the energy classification indicated on the energy class label — Precluded (Commission Regulation No 665/2013, Annex II; European Parliament and Council Directives 2005/29, Arts 3(4) and 7 and 2010/30) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court –Need to reformulate the questions (Art. 267 TFEU) 3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Competence of the Court to provide the national court with guidance based on the documents in the case file (Art. 267 TFEU) 4. Energy — Indication of the energy consumption of energy-related products — Energy labelling of vacuum cleaners — Regulation No 665/2013 — Use of other labels or symbols recalling the information contained on the energy label — Not permissible — Condition — Likelihood of misleading end-users (Commission Regulation No 665/2013, Annex II; European Parliament and Council Directive 2010/30, Art. 3(1)(b)) 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. In that regard, it must be stated that Directive 2010/30 and Delegated Regulation No 665/2013 are to be interpreted as meaning that no information relating to the conditions under which the energy efficiency of vacuum cleaners was measured may be added to the energy label. It is stipulated, in recital 8 of Directive 2010/30, that it is necessary to introduce a uniform label for all products of the same type. It follows that Delegated Regulation No 665/2013, read in the light of Directive 2010/30, prohibits references other than, where appropriate,the reproduction of the EU Ecolabel from being added to the energy label. It follows from that prohibition that, pursuant to Article 3(4) of Directive 2005/29, Article 7 of that directive cannot apply to the absence, from the energy label, of information on vacuum cleaner energy efficiency testing conditions. So far as concerns, in the second place, the absence, from places other than the energy label, of information concerning testing conditions, it should be noted that, according to Article 7(1) of Directive 2005/29, 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. In the case at hand, the conditions under which the energy efficiency of the model of vacuum cleaner concerned was measured cannot be deemed to constitute material information for the average consumer. (see paras 35, 36, 40-43, 46, operative part 1) 2. See the text of the decision. (see para. 47) 3. See the text of the decision. (see para. 54) 4. 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. (see para. 58, operative part 2)