Opinion of the Advocate General — ECLI:EU:C:2026:113
Date: 2026-02-26
Language of the case: German

Translation C-120/25 – 1 
Case C-120/25 
Request for a preliminary ruling 
Date lodged: 
5 February 2025 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
23 January 2025 
Applicant and appellant in the appeal on a point of law: 
Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel 
und Industrie e.V. 
Defendant and respondent on a point of law: 
PAYBACK GmbH 
  
BUNDESGERICHTSHOF 
(FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
I ZR 53/24 
of 
23 January 2025 
In the case of 
Verband Wirtschaft im Wettbewerb, Verein für Lauterkeit in Handel und Industrie 
e. V., […] Düsseldorf, Germany 
applicant and appellant in the appeal on a point of law, 
[…] v 
PAYBACK GmbH, […] Munich, Germany 
EN 
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defendant and respondent in the appeal on a point of law, 
[…] At the hearing of 10 October 2024, the First Civil Chamber (Zivilsenat) of the 
Bundesgerichtshof (Federal Court of Justice) […] ordered as follows: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the 
European Union (‘Court of Justice’ or ‘CJEU’) for a preliminary ruling 
on the interpretation of the first paragraph, point (a), of Article 6 and 
Article 2(13) of Regulation (EU) No 2017/1369 of the European 
Parliament and of the Council of 4 July 2017 setting a framework for 
energy labelling and repealing Directive 2010/30/EU (OJ L 198, 
28 July 2017, p. 1), in the version last amended by Regulation (EU) 
No 2020/740 of the European Parliament and of the Council of 25 May 
2020 (OJ L 177, 5 June 2020, p. 1), and of Article 4(d) of Commission 
Delegated Regulation (EU) No 2019/2013 of 11 March 2019 
supplementing Regulation (EU) No 2017/1369 of the European 
Parliament and of the Council with regard to energy labelling of 
electronic displays and repealing Commission Delegated Regulation 
(EU) No 1062/2010 (OJ L 315, 5 December 2019, p. 1), in the version 
last amended by Commission Delegated Regulation (EU) No 2021/340 
of 17 December 2020 (OJ L 68, 26 February 2021, p. 62): 
Is a person who offers a television as a prize in the context of an online 
prize draw to be regarded as a ‘dealer’ within the meaning of 
Article 2(13) of Regulation (EU) No 2017/1369 and therefore under an 
obligation to fulfil the requirements laid down in the first paragraph, 
point (a), of Article 6 of Regulation (EU) No 2017/1369, read in 
conjunction with Article 4(d) of Delegated Regulation (EU) 
No 2019/2013? 
Grounds: 
1 A. The defendant is the operator of the PAYBACK bonus programme, which 
serves to promote customer loyalty and acquisitions and has many corporate 
participants. On 1 February 2022, in its online newsletter entitled ‘Deine neuen 
Coupons sind da’ (‘Your new coupons are available’), it advertised a prize draw 
with the claim ‘Täglich ein neuer Gewinn, z. B. 2 x Samsung QLED 4K TV Q80A, 
75 Zoll’ (‘A new prize to be won every day, such as 2 x Samsung QLED 4K TV 
Q80A, 75 inch’) as shown in the following figure (Exhibit K1, page 1): 
PAYBACK 
 
3 
 
2 The defendant made no reference to the energy efficiency class, or the range of 
energy efficiency classes available on the label, in either the picture of the 
television or in the tabular list of possible prizes shown below (Exhibit K1, page 
2): 
 
3 The applicant – an association for the promotion of competition 
(Wettbewerbsverein) – unsuccessfully warned the defendant about that omission. 
As a result of the action that was consequently brought, the defendant was 
ordered, by way of a judgement by default, to refrain – upon notification of the 
form of order more particularly described in the judgment – from visually 
advertising, and/or commissioning the visual advertisement of, a specific model of 
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electronic display in the course of trade and for the purposes of competition, 
without specifying the energy efficiency class and the corresponding range of 
energy efficiency classes available on the label in the graphic depiction prescribed 
by law – in the form of an arrow – in cases where such advertising occurs, as 
shown in Exhibit K1. In addition, the defendant was ordered to pay the costs for 
issuance of the warning notice, in the amount of EUR 290 plus interest. 
4 In response to the objection to the default judgment that was lodged by the 
defendant, the Landgericht (Regional Court) upheld its judgement by default. On 
an appeal on the merits (Berufung) brought by the defendant, the appellate court 
adjudicating on that appeal (‘the court of appeal’) set aside the default judgment 
and dismissed the action. By its appeal on a point of law (Revision), which was 
allowed by the court of appeal, and which the defendant is seeking to have 
dismissed, the applicant is seeking the reinstatement of the judgment by default. 
5 B. The outcome of the appeal on a point of law depends on the interpretation 
of the first paragraph, point (a), of Article 6, read in conjunction with 
Article 2(13) of Regulation (EU) No 2017/1369 and Article 4(d) of Delegated 
Regulation (EU) No 2019/2013. For that reason, prior to a decision on the appeal 
on a point of law, the proceedings must be stayed and a preliminary ruling 
obtained from the Court of Justice of the European Union pursuant to the first 
paragraph, point (b), and the third paragraph of Article 267 TFEU. 
6 I. The court of appeal found the action to be admissible but unfounded. It 
held that the applicant could not claim the injunctive relief sought under 
competition law because the defendant was not a ‘dealer’ as defined in 
Article 2(13) of Regulation (EU) No. 2017/1369, and was therefore not subject to 
the requirements laid down in the first paragraph, point (a), of Article 6 of 
Regulation (EU) No 2017/1369, read in conjunction with Article 4(d) of 
Delegated Regulation (EU) No 2019/2013. Furthermore, the other conditions for 
injunctive relief had not been met. The court of appeal further stated that the 
consumer did not need the information prescribed under Regulation (EU) 
No 2017/1369 in order to take an informed transactional decision, nor would 
failing to provide that information be likely to cause the consumer to take a 
transactional decision that he or she would not have taken otherwise. 
7 II. The appeal on a point of law will be successful if the court of appeal 
wrongly refused the injunctive relief sought on the basis of the first sentence of 
Paragraph 8(1), Paragraph 8(3)(2), Paragraph 3(1), the first sentence of 
Paragraph 5a(2), and Paragraph 5a(4) of the Gesetz gegen den unlauteren 
Wettbewerb (German Law against Unfair Competition, ‘the UWG’) in the version 
applicable until 27 May 2022 (old version) or, respectively, Paragraph 5a(1), 
Paragraph 5b(4) of the UWG in the version applicable as of 28 May 2022 (new 
version), read in conjunction with the first paragraph, point (a), of Article 6 of 
Regulation (EU) No 2017/1369 and Article 4(d) of Delegated Regulation (EU) 
No 2019/2013. 
PAYBACK 
 
5 
8 1. The court of appeal correctly held that the action was admissible. In 
particular, it rightly held that the applicant was entitled to assert the claims at issue 
on the basis of Paragraph 8(3)(2) of the UWG. 
9 2. It is questionable, however, whether the court of appeal was also correct in 
holding that the applicant was not entitled to claim the injunctive relief sought 
under competition law on the ground that the defendant was not obliged to fulfil 
the requirements laid down in the first paragraph, point (a), of Article 6 of 
Regulation (EU) No 2017/1369, read in conjunction with Article 4(d) of 
Delegated Regulation (EU) No 2019/2013. 
10 (a) In cases involving a breach of an obligation to provide information in 
relation to commercial communications, the unfairness of a commercial act is to 
be assessed solely in accordance with Paragraph 5a(2), first sentence, and 
Paragraph 5a(4) of the UWG, old version / Paragraph 5a(1) and Paragraph 5b(4) 
of the UWG, new version (see BGH (Federal Court of Justice), judgment of 
7 April 2022 – case ref. I ZR 143/19, BGHZ (Entscheidungen des 
Bundesgerichtshofs in Zivilsachen (Decisions of the Federal Court of Justice in 
civil cases) 233, 193 [juris, paragraphs 16 and 23] – Knuspermüsli II (Crispy 
Muesli II); judgment of 11 July 2024 – case ref. 1 ZR 164/23, GRUR 
(Gewerblicher Rechtsschutz und Urheberrecht (German Association for the 
Protection of Intellectual Property) 2024, 1449 [juris, paragraph 21] = WRP 
(Wettbewerb in Recht und Praxis (Competition in Law and Practice)) 2024, 
1345 – nikotinhaltige Liquids (nicotine containing liquids), with further 
references). 
11 (b) A claim for injunctive relief based on a risk of repetition is well-founded 
only if the conduct complained of was anti-competitive under both the law 
applicable at the time of commission of that conduct and under the law applicable 
at the time of the decision on the appeal on a point of law (settled case-law; see 
only BGH, judgment of 25 July 2024 – case ref. 1 ZR 143/23, GRUR 2024, 1345 
[juris, paragraph 7] = WRP 2024, 1056 – durchschnittliche Sternebewertung 
(average star rating), with further references). Following the publication of the 
newsletter at issue on 1 February 2022, Paragraph 5a of the UWG was amended 
by the Gesetz zur Stärkung des Verbraucherschutzes im Wettbewerbs- und 
Gewerberecht (German Law on the strengthening of consumer protection in 
competition and trade law) of 10 August 2021 (BGBl. I p. 3504), which entered 
into force on 28 May 2022. The amendment did not result in a change to the legal 
situation that is relevant to the dispute. 
12 (c) Under the first sentence of Paragraph 5a(2) of the UWG, old version, a 
person is deemed to have acted unfairly in a particular case, on the basis of all the 
circumstances, where he or she omits material information (no. 1) which the 
consumer needs, depending on the context, in order to take an informed 
transactional decision; and (no. 2) where his or her omission is likely to induce the 
consumer into taking a transactional decision which he or she would not have 
taken otherwise. Under Paragraph 5a(1) of the UWG, new version, unfairness is 
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deemed to have occurred where a person misleads a consumer or other market 
participant by omitting material information (no. 1) which the consumer or other 
market participant needs, depending on the relevant context, in order to take an 
informed transactional decision; and (no. 2) where that omission is likely to 
induce the consumer or the other market participant into taking a transactional 
decision which he or she would not have taken otherwise. Under Paragraph 5a(4) 
of the UWG, old version, and Paragraph 5b(4) of the UWG, new version, 
‘material’ within the meaning of Paragraph 5a(2) of the UWG, old version, and 
Paragraph 5a(1) of the UWG, new version, is also deemed to include that 
information which may not be withheld from consumers on the basis of EU 
regulations or under legal provisions implementing EU directives for the purposes 
of commercial communications, including advertising and marketing. 
13 The provision set down in the first sentence of Paragraph 5a(2) of the UWG, old 
version (Paragraph 5a(1) of the UWG, new version) serves to implement 
Article 7(1) of Directive 2005/29/EC concerning unfair business-to-consumer 
commercial practices in the internal market. According to that provision, 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, according to 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 or she would not have taken otherwise. Article 7(5) of Directive 
2005/29/EC, on the basis of which Paragraph 5a(4) of the UWG, old version / 
Paragraph 5b(4) of the UWG, new version, was adopted (see BGH, GRUR 2024, 
1449 [juris, paragraph 23] – nikotinhaltige Liquids, with further references), 
provides that the information requirements established by Community law in 
relation to commercial communication including advertising or marketing, a non-
exhaustive list of which is contained in Annex II to that directive, is to be regarded 
as material. 
14 (d) According to the first paragraph, point (a), of Article 6 of Regulation (EU) 
No 2017/1369, the supplier and the dealer are to make reference to the energy 
efficiency class of the product and the range of the efficiency classes available on 
the label in visual advertisements or technical promotional material for a specific 
model in accordance with the relevant delegated act; According to Article 4(d) of 
Delegated Regulation (EU) No 2019/2013, dealers are to ensure that any visual 
advertisement for a specific model of electronic display, including on the internet, 
contains the energy efficiency class and the range of efficiency classes available 
on the label, in accordance with Annex VII [to the delegated regulation]. 
15 (e) The court of appeal rightly took the view that the requirements relevant to 
the asserted claim for injunctive relief concern information obligations in relation 
to commercial communications for the purposes of the first sentence of 
Paragraph 5a(2) and Paragraph 5a(4) of the UWG, old version, and 
Paragraph 5a(1) and Paragraph 5b(4) of the UWG, new version (on the concept of 
commercial communication, see BGH, judgment of 26 October 2023 – case ref. 1 
PAYBACK 
 
7 
ZR 176/19, GRUR 2023, 1704 [juris, paragraphs 22 to 24] = WRP 2024, 65 – 
Zigarettenausgabeautomat III (Cigarette Vending Machines III), with further 
references). 
16 The prohibition on omitting material information laid down in Paragraph 5a(2), 
first sentence, and Paragraph 5a(4) of the UWG, old version, and Paragraph 5a(1) 
and Paragraph 5b(4) of the UWG, new version, as well as under Article 7(1) of 
Directive 2005/29/EC, covers all information that, as in the case of energy 
consumption labelling, serves the purpose of enabling the consumer to take an 
informed transactional decision. It can also cover information that could deter 
consumers from entering into a contract (BGH, GRUR2023, 1704 [juris, 
paragraph 27] – Zigarettenausgabeautomat III; GRUR 2024, 1449 [juris, 
paragraph 29] – nikotinhaltige Liquids, in each case with further references). 
17 (f) It is questionable whether the court of appeal was also correct in holding 
that the defendant, as the organiser of the prize draw at issue, was not, as regards 
the products offered as prizes, a ‘dealer’ for the purposes of the first paragraph, 
point (a), of Article 6 and Article 2(13) of Regulation (EU) No 2017/1369, as well 
as Article 4(d) of Delegated Regulation (EU) No 2019/2013, and was therefore 
not obliged to comply with the requirements laid down in those provisions. The 
purpose of the question referred is to clarify that issue. 
18 aa) According to Article 2(13) of Regulation (EU) No 2017/1369, the term 
‘dealer’ means a retailer or other natural or legal person who offers for sale, hire, 
or hire purchase, or displays products to customers or installers in the course of a 
commercial activity, whether or not in return for payment. 
19 (bb) The court of appeal held that the defendant was not to be regarded as a 
‘dealer’ within the meaning of that definition. The organisation of a prize draw did 
not serve the purpose of offering or displaying the products offered as prizes. In 
the opinion of the court of appeal, the potential absence of consideration given 
expression in the definition was not intended to expand the class of dealers 
beyond persons who offer products for sale, hire, or hire purchase, or who display 
products. According to the court of appeal, that view was also supported by the 
purpose of the regulation, which is to enable customers to choose more efficient 
products in order to reduce their energy consumption. By participating in the prize 
draw, customers were not choosing a product but merely deciding to take part in 
the prize draw itself. 
20 (cc) The appeal on a point of law is challenging that view on the basis of the 
argument that the terms ‘sale’, ‘hire’ or ‘hire purchase’ contained in Article 2(13) 
of Regulation (EU) No 2017/1369 must be understood broadly in accordance with 
the required autonomous interpretation of EU law, and that recourse is not to be 
made to the definitions laid down in national law. According to the appeal on a 
point of law, an economic action of any kind would be sufficient. According to the 
clear wording, contracts not entered into in return for payment would also be 
covered. The fact that the term ‘unentgeltlich’ [German version, corresponding to 
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‘not in return for payment’ in the English version] relates not only to the variant of 
displaying products but also to all activity variants, and thus also to sales, is – 
according to the appeal on a point of law – made clear, inter alia, by the English 
version, in which the additional wording that refers to a possible absence of 
consideration (‘whether or not in return for payment’) appears at the end of the 
definition, separated by a comma. According to the autonomous interpretation 
required under EU law, an ‘unentgeltlicher Kauf’ (‘sale not in return for 
payment’) is also to be understood as a gift, such as that at issue in the present 
case. 
21 (dd) It is necessary to clarify whether the organiser of a prize draw is to be 
regarded as a ‘dealer’, within the meaning of Article 2(13) of Regulation (EU) 
No 2017/1369, in respect of products offered as prizes. 
22 (1) As the appeal on a point of law correctly emphasises, it follows from the need 
for a uniform application of EU law and from the principle of equality, that the 
terms of a provision of EU law which makes no express reference to the law of the 
Member States for the purpose of determining its meaning and scope must 
normally be given an autonomous and uniform interpretation throughout the 
European Union; that interpretation must take into account the context of the 
provision and the purpose of the relevant regulations (settled case-law; see CJEU, 
judgment of 4 October 2024 – C-228/23, […] paragraph 38 et seq. – AFAÏA, with 
further references). 
23 (2) However, it is questionable whether the view asserted in the appeal on a point 
of law – according to which the definition of the term ‘dealer’ laid down in 
Article 2(13) of Regulation (EU) No. 2017/1369 covers, simply by virtue of its 
very wording, the offering or displaying of products to or for customers for an 
‘unentgeltlicher Kauf’ (‘sale not in return for payment’), which would therefore 
also include, by way of example, by means of an offer of prizes – is correct (see 
Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), 
GRUR-RS 2021, 61093 [juris, paragraph 7]; Landgericht Stuttgart (Regional 
Court, Stuttgart, Germany), WRP2018, 1023 [juris, paragraph 42]). Such an 
interpretation would be possible if the addition of ‘unentgeltlich’ (‘not in return 
for payment’) refers also to the sale transaction variant mentioned in the 
definition. 
24 However, the concept of an ‘unentgeltlicher Kauf’ (‘sale not in return for 
payment’) is not only alien to German civil law, it is also unknown to EU law. For 
example, according to the definition set down in Article 2(1) of Directive (EU) 
2019/771 on certain aspects concerning contracts for the sale of goods, a ‘sales 
contract’ means any contract under which the seller transfers or undertakes to 
transfer ownership of goods to a consumer, and the consumer pays or undertakes 
to pay the price thereof. Under that provision too, the obligation to pay a sale price 
is inherent in a contract of sale. In the view of the Chamber (Senat), that fact 
militates against an interpretation to the effect that an offer of a prize (as an 
‘unentgeltlicher Kauf’ (‘sale not in return for payment’) [German version]) is also 
PAYBACK 
 
9 
intended to fall within the scope of the transaction variants listed in Article 2(13) 
of Regulation (EU) 2017/1369. 
25 In opposition to the assertion made in the appeal on a point of law, nothing to the 
contrary can be inferred from the fact that Article 2(16) of Regulation (EU) 
No 2017/1369 defines a ‘customer’ as a ‘natural or legal person who buys, hires 
or receives a product for own use […]’ (see, in that regard, Landgericht Duisburg 
(Regional Court, Duisburg, Germany), judgment of 29 January 2020 – case ref. 22 
O 53/19, juris, paragraph 44). It is true that the ‘receiving’ alternative does not 
presuppose a requirement for payment. However, that does not mean, in and of 
itself, that the EU legislature considers that the absence of consideration is also 
conceivable in the case of the sale transaction variant. 
26 (3) However, the question discussed above is irrelevant if the argument asserted in 
the appeal on a point of law is correct, that is to say that the transaction variants 
listed in Article 2(13) of Regulation (EU) No 2017/1369 (sale, hire and hire 
purchase) do not establish a limitation to certain contractual relationships 
conceivable between a dealer and a customer and that the addition of ‘entgeltlich 
oder unentgeltlich’ (‘whether or not in return for payment’) is intended to clarify 
that a commercial activity of any kind is sufficient in order for a person to be 
considered a ‘dealer’. 
27 (a) It is true that the fact that Article 2(13) of Regulation (EU) No 2017/1369 
lists three different transaction variants does not directly indicate that the term 
should be accorded such an understanding, which is not expressive of any 
restrictions. If the intention had been for all commercial activities to be included 
within the scope of the definition, it would have been more appropriate to omit the 
terms ‘purchase, hire and hire-purchase’. 
28 (b) The interpretation advocated in the appeal on a point of law could, 
however, be supported by the objectives pursued by Regulation (EU) 2017/1369, 
namely to inform the consumer on the energy efficiency of products during use 
and on the energy consumption of energy-related products and enabling that 
consumer to make informed choices (see the first sentence of recital 2 and the first 
sentence of recital 10 of Regulation (EU) 2017/1369 as well as CJEU, order of 
5 October 2023 – C-761/22, […] paragraph 45] – Verband Wirtschaft im 
Wettbewerb; BGH, judgment of 7 March 2019 – case ref. IZR 184/17, 
GRUR2019, 746 [juris, paragraph 22] = WRP 2019, 874 – Energieeffizienzklasse 
III (Energy Efficiency Class III), with further references). Information on efficient 
and sustainable products makes a significant contribution to energy savings and to 
reducing energy bills, while at the same time promoting innovation and 
investments into the production of more energy efficient products (second 
sentence of recital 2). The possibility does not therefore appear to be excluded that 
the consumer is to be enabled to make informed choices even if a model is not 
offered to that consumer as a sale in return for payment but instead, by way of 
example, as a prize in a prize draw organised without direct consideration. Even in 
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that situation, the consumer could have a recognisable interest in knowing whether 
the product is energy-efficient or not. 
29 (4) In the view of the Chamber, it also appears possible to adopt an interpretation 
whereby the addition ‘entgeltlich oder unentgeltlich’ (‘whether or not in return for 
payment’) refers not to the transaction variants of sale, hire or hire purchase 
contained in the definition, but rather to the two alternative activity variants 
mentioned therein of ‘offering’ or ‘displaying’. According to that understanding, 
the question of whether or not a person is a ‘dealer’ could depend solely on 
whether there is an offer or display of products for sale, hire or hire purchase, 
whether or not in return for payment; in the dispute at issue that was not the case, 
since the products were not, in any event, offered for sale, hire or hire purchase. 
30 (5) However, it is also conceivable that the variant of ‘displaying’, as referred to 
in the definition set down in Article 2(13) of Regulation (EU) No 2017/1369, is to 
be regarded as independent of that of offering for sale, hire or hire purchase, and 
is therefore not subject to any further limitations. That interpretation is supported 
by the fact that the addition ‘or displays’ is placed, for example, at the end of the 
definition in the German version (and, analogously, also in the Dutch version) and 
that it can also be read in isolation in other language versions (such as in the 
English, French and Italian versions). 
31 If that understanding is correct, it must be clarified whether the defendant 
‘displayed’ the television, as contemplated in the definition set down in 
Article 2(13) of Regulation (EU) No 2017/1369, by including a picture of it in the 
advertising at issue (see Exhibit K1) and/or by describing it in the list of possible 
prizes (see Exhibit K2). The court of appeal ruled that that was not the case, 
holding that ‘displaying’ was to be understood as meaning only a physical 
presentation of products, which had not taken place in the dispute at issue. 
32 A definition of the term ‘displaying’ is not included in Regulation (EU) 
No 2017/1369. Moreover, it cannot be deduced from the context of the provisions 
set out therein whether ‘displaying’ is to be understood as meaning any type of 
presentation of a product (and thus also a pictorial representation and literal 
description of a television as part of the advertising for a prize draw, as at issue in 
the present case), or whether the term is limited solely to the specific offering or 
advertising of products, such as at trade fairs or sales stands. 
33 3. The question referred for a preliminary ruling is relevant to the resolution of the 
dispute. 
34 (a) In the appeal on a point of law, it was unsuccessfully argued – on the first 
occasion, at the hearing – that the questions of interpretation discussed earlier in 
this reference for a preliminary ruling are not relevant because the defendant’s 
customers had paid to participate in the prize draw by making their data available, 
and hence the defendant’s actions had been carried out in return for payment. 
PAYBACK 
 
11 
35 The court of appeal did not make any findings to that effect. Nor, contrary to the 
argument asserted in the appeal on a point of law, does the QR code that can be 
seen on the image in Exhibit K1 automatically constitute a ‘payment with data’. 
Neither the title shown above the QR code (‘der grandiose Paypack Coupon-
Kalender’ (‘the great paypack coupon calendar’)) nor the annotation ‘QR-Code 
scannen & Kalender in der App checken’ (‘scan the QR code and check the 
calendar in the App’) linked to that QR code by means of an arrow indicate that 
personal data are to be transmitted in the context of scanning the QR code. 
36 (b) If the defendant is to be regarded as a ‘dealer’ within the meaning of 
Article 2(13) of Regulation (EU) No 2017/1369, it has violated the information 
obligations arising out of the first paragraph, point (a), of Article 6 of Regulation 
(EU) No 2017/1369 and Article 4(d) of Delegated Regulation (EU) 
No 2019/2013. In the advertising at issue concerning the television offered as the 
main prize, the defendant failed to make any reference, in either its pictorial 
representation or as part of its literal description, to the energy efficiency class or 
the range of energy efficiency classes available on the label. However, 
Article 4(d) of Delegated Regulation (EU) No 2019/2013 strictly requires such a 
reference for ‘any visual advertisement’ for a specific model of electronic display 
(which includes televisions; see Article 1(1) of Delegated Regulation (EU) 
No 2019/2013), including on the internet. 
37 (c) The other conditions set down in the first sentence of Paragraph 5a(2) and 
Paragraph 5a(4) of the UWG, old version / Paragraph 5a(1) and Paragraph 5b(4) 
of the UWG, new version, are also fulfilled. In particular, and contrary to the 
opinion adopted by the court of appeal, the consumer needs the information 
prescribed in Regulation (EU) No 2017/1369 in order to take an informed 
transactional decision and its omission is also likely to cause the consumer to take 
a transactional decision that he or she would not have taken otherwise. 
[…] Proceedings before the lower courts: 
Landgericht München I (Regional Court I, Munich, Germany), decision of 
23 January 2023– case ref. 4 HK O 2759/22 – 
Oberlandesgericht München (Higher Regional Court, Munich, Germany), decision 
of 14 March 2024– case ref. 6 U 681/23e 
[…]