Order;Summary — ECLI:EU:C:2023:756
Date: 2023-10-05
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Energy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-761/22 – 1 
Case C-761/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 December 2022 
Referring court: 
Landgericht Bochum (Germany) 
Date of the decision to refer: 
23 November 2022 
Applicant: 
Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel 
und Industrie e.V. 
Defendant: 
Roller GmbH & Co. KG 
  
Subject matter of the main proceedings 
Regulation (EU) 2017/1369 setting a framework for energy labelling – Obligation 
for suppliers or dealers of energy-related products to indicate the energy 
efficiency class and the range of energy efficiency classes in their advertising – 
Obligation deriving directly from the regulation or from a delegated act – Leeway 
in the design of the required indications – Possible suspension of the obligation 
until the entry into force of the new delegated acts 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU. 
Questions referred for a preliminary ruling 
1.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-761/22 
 
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Does Article 6(1)(a) of Regulation (EU) 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 directly impose an obligation on suppliers or 
dealers of products relevant to energy labelling to indicate the energy efficiency 
class and the range of energy efficiency classes in their advertising, without 
specific expression being given to that standard by means of a delegated act? 
2.  
In the event that the answer to question 1 is in the affirmative: 
(a) 
Does an obligation, already to be assumed directly from Article 6(1)(a) of 
Regulation (EU) 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, for suppliers or dealers of products relevant to energy labelling to 
indicate the energy efficiency class and the range of energy efficiency classes in 
their advertising result in suppliers or dealers being entitled to a certain amount of 
leeway regarding how that information is presented until the new delegated acts 
enter into force? 
In the event that the answer to question 1(a) is in the affirmative: 
(b) 
Which possibility or possibilities of presenting the required information on energy 
efficiency class and range of energy efficiency classes in compliance with EU law 
are open to suppliers and dealers until the new delegated acts enter into force? Is 
the combination of energy efficiency class and colour design chosen by the 
defendant according to Annex K 1 to the statement of claim sufficient, if 
applicable? 
3. 
In the event that the answer to question 1 is in the negative: 
Is the obligation for suppliers or dealers of products relevant to energy labelling to 
indicate the energy efficiency class and the range of energy efficiency classes in 
their advertising completely suspended until the new delegated acts enter into 
force? 
Provisions of European Union law relied on 
Regulation (EU) 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 2017 L 198, p. 1): Article 6(1)(a) 
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Provisions of national law relied on 
The Gesetz gegen den unlauteren Wettbewerb (Law on unfair competition) in the 
version published on 3 March 2010 (BGBl. I p. 254), most recently amended by 
Article 20 of the Law of 24 June 2022 (BGBl. I p. 959) (‘the UWG’). 
The relevant provisions here are Paragraphs 3 and 5a UWG: 
Paragraph 3 Prohibition of unfair commercial practices 
(1) Unfair commercial practices shall be prohibited. 
Paragraph 5a of the UWG in the version of 10 August 2021, in force since 
28 May 2022 
Paragraph 5a Misleading by omission 
(1) Unfairness is deemed to have occurred where a person, misleads a 
consumer or economic operator by omitting material information 
1. that the consumer or economic operator needs, according to the context, to take 
an informed transactional decision and 
2. whose omission is likely to cause the consumer to take a transactional decision 
that he or she would not have taken otherwise. 
(2) ‘Omission’ also means: 
1. the hiding of material information, 
2. the provision of material information in an unclear, unintelligible or ambiguous 
manner,  
3. the provision of material information in an untimely manner. 
(3) … 
(4) 1Unfairness is also deemed to have occurred where the commercial intent of 
a commercial practice is not identified, unless it is directly apparent from the 
context, and where such failure to identify the commercial intent is likely to cause 
the consumer or market operator to take a transactional decision which he or she 
would not have taken otherwise. … 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-761/22 
 
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Paragraph 5a of the UWG in the version in force from 1 December 2021 to 
27 May 2022 
Paragraph 5a Misleading by omission 
(1) In assessing whether concealment of a fact is misleading, consideration is to 
be given, in particular, to its significance for the transactional decision according 
to prevailing public opinion, and to whether the concealment is likely to influence 
the decision. 
… 
Further relevant provisions can be found in Paragraph 8 of the UWG (orders to 
cease and desist; injunctive relief), which also regulates the right of action 
resulting for certain associations from their inclusion in the list set out in 
Paragraph 8b, and in Paragraph 13 of the UWG (written warning notice; 
obligation to cease and desist; liability).  
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a registered association with legal personality that, according to 
its articles of association, has, for more than 40 years, pursued, inter alia, the 
purpose of promoting the commercial interests of its members and of combating 
unfair competition and promoting fair competition by participating in legal 
research, awareness-raising and instruction in cooperation with the competent 
bodies of the administration of justice. It has around 25 000 members throughout 
Germany from a wide range of sectors. The applicant is registered as a qualified 
trade association, pursuant to Paragraph 8b(3) of the UWG, with the Federal 
Office of Justice. 
2 The defendant operates approximately 150 furniture shops throughout Germany 
and describes itself as Germany’s largest discount furniture retailer. 
3 The defendant advertised a kitchen unit at a price of EUR 1 699.00 on its website 
under the heading ‘Angebotsküchen’ [‘Kitchens on offer’]. In addition to 
information on the kitchen furniture, it listed the electrical appliances included and 
provided, inter alia, the following information: ‘…electrical appliances as shown 
are included, dishwasher available at extra cost. 4* freezer compartment.’ The 
defendant indicated that the energy efficiency class of the built-in oven was ‘A’ 
and that of the extractor hood was ‘C’, with the information in each case in a 
coloured graphic arrow (built-in oven: yellow and extractor hood: orange). 
However, the efficiency class ranges present on the label were missing. 
4 On 10 February 2022, the applicant warned the defendant, inter alia, of an 
infringement of Regulation 2017/1369 for failing to mention the range of energy 
efficiency classes available on the label when advertising the oven and the 
extractor hood. It unsuccessfully sought a cease-and-desist undertaking, coupled 
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with a penalty clause, from the defendant in accordance with the (new) Hamburg 
custom and claimed payment of a lump sum as reimbursement of expenses for the 
warning issued, submitting a corresponding breakdown. 
5 The parties dispute, inter alia, whether the applicant can require the defendant 
pursuant to Paragraphs 3(1), 5a(2) and (4) old version, Paragraph 5a(1) new 
version, the first sentence of Paragraph 8(1) and (3) No 2 of the UWG in 
conjunction with Article 6(1)(a) of Regulation 2017/1369, to cease and desist 
from advertising the kitchen appliances mentioned in detail, which does not refer 
to the range of efficiency classes available on the label. Furthermore, they dispute 
whether the warning under competition law is justified and whether the 
corresponding reimbursement of expenses may be claimed under Paragraph 13(3) 
of the UWG. 
The essential arguments of the parties in the main proceedings 
6 The applicant is of the opinion, inter alia, that the injunctive relief in question is 
justified under Paragraphs 3 and 3a of the UWG in conjunction with 
Article 6(1)(a) of Regulation 2017/1369 and under Paragraph 3 and 
Paragraph 5a(2) in conjunction with Paragraph 5a(4) UWG. 
7 According to Article 6(1)(a) of the regulation, dealers are under an obligation to 
indicate the energy efficiency class of the product and the range of efficiency 
classes available on the label in visually perceptible advertising for a particular 
model. According to Article 20(4) of the regulation, the delegated acts adopted so 
far are to remain in force. The range for the advertised oven and the extractor 
hood can therefore be inferred from Annex I to Regulation No 1062/2010. It is 
between A+++ and D. 
8 The applicant claims that the defendant did not meet these requirements in its 
advertising. According to Paragraph 5a(2) of the UWG, anyone who withholds 
material information from the consumer is acting unfairly. According to 
subparagraph 4, material information is information that the operator must provide 
in accordance with EU regulations. The duty under EU law to provide information 
on the range of existing energy efficiency classes follows, in turn, from 
Article 6(1)(a) of EU Framework Regulation 2017/1369. 
9 In the present case, the defendant impaired the consumer’s ability to make a 
decision by withholding material information on energy consumption, which is 
unlawful. 
10 The withholding of information is also likely to induce the consumer to take a 
transactional decision that he or she would not otherwise have taken. It cannot be 
ruled out that the consumer would have refrained from purchasing the advertised 
built-in appliances in favour of more energy-efficient models if he or she had been 
informed by the disclosure of the available range that the advertised product was 
in a comparatively poor energy efficiency class. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-761/22 
 
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11 By contrast, the defendant contends that, in the present situation, there is no 
obligation to indicate the range of available efficiency classes until specific 
expression is given to the obligation in a delegated act. In particular, such an 
obligation does not arise directly from Article 6 of Regulation 2017/1369. There 
is, as yet, no delegated act on the basis of that regulation, which is in principle still 
applicable to the electrical goods at issue in the present case in respect of the 
articles concerned here. There was therefore no regulation governing the details or 
even the requirement to indicate the range of available efficiency classes. The 
obligation inferred by the applicant solely from Article 6(1)(a) of Regulation 
2017/1369, without the necessary specific expression given by means of a 
delegated act, does not exist, according to the case-law of the Oberlandesgericht 
Hamm (Higher Regional Court, Hamm, Germany). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 No clear answer to the questions referred has yet been provided in case-law or 
legal literature. 
13 On the one hand, the Oberlandesgericht Hamm (Higher Regional Court, Hamm) 
(decision of 5 September 2022, ref. I-4 U 71/21, and judgment of 3 February 2022 
referred to therein, ref. I-4 U 89/20) states, inter alia: 
14 7 (1) Article 6(1)(a) of Regulation 2017/1369 does not directly require 
suppliers or dealers to refer to the energy efficiency class or the range of energy 
efficiency classes in their advertising. The Senate has already stated the following 
in that regard in an earlier decision (judgment of 3 February 2022 – 4 U 89/20 –): 
15 8 ‘… From a linguistic point of view, for the interpretation of Article 6(1)(a) 
of Regulation 2017/1369, it must first be clarified whether the phrase “in 
accordance with the relevant delegated act” refers to the noun “efficiency 
classes” immediately preceding this phrase, or to the verb “make reference to”. 
The answer to this question can be found in Article 16(3)(j) of Regulation 
2017/1369: According to that regulation, the delegated acts adopted on the basis 
of Regulation 2017/1369 must, in particular, specify requirements for “how 
(emphasis by the Senate) the energy class and the range of the efficiency classes 
available on the label shall be included in visual advertisements and technical 
promotional material, including legibility and visibility”. Specific expression is 
therefore given to Article 6(1)(a) of Regulation 2017/1369 by the relevant 
delegated acts alone; it must therefore be concluded that the phrase “in 
accordance with the relevant delegated act” refers to the verb “make reference 
to”; Article 6(1)(a) of Regulation 2017/1369 must therefore be read as meaning 
that the range of energy efficiency classes must be referred to “in accordance 
with the relevant delegated act”. 
16 9 … Since specific expression must still be given to the obligation of 
suppliers and dealers to indicate the range of energy efficiency classes referred to 
in Article 6(1)(a) of Regulation (EU) 2017/1369 by means of a delegated act, a 
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reading of Article 6(1)(a) of Regulation (EU) 2017/1369 directly and solely 
cannot be said persuasively to reflect an obligation to indicate the range of energy 
efficiency classes. Such a “direct” obligation would also contradict the regulatory 
practice of the Union legislature, which favours a particularly high degree of 
detail in its normative requirements, especially in energy labelling law. In 
addition, the adoption of an obligation following directly and solely from 
Article 6(1)(a) of Regulation (EU) 2017/1369 would result, as long as there is no 
delegated act or if a delegated act proves to be ineffective, in suppliers and 
dealers having a certain amount of leeway as to where and how they refer to the 
range of energy efficiency classes. Such leeway for suppliers and dealers would, 
however, run counter to the declared objective of Regulation 2017/1369 of 
providing the customer with comparable information (see recital 10 of Regulation 
2017/1369). 
17 10 … The second sentence of recital 38 of Regulation 2017/1369 does not 
indicate otherwise: although it can certainly be inferred from this recital that 
Regulation (EU) 2017/1369 may also contain direct obligations for the parties 
subject to the law, nothing can be inferred from this recital for the specific 
interpretation of Article 6(1)(a) of Regulation (EU) 2017/1369 … Rather, 
according to its own express wording, the obligation referred to in Article 6(1)(a) 
of Regulation (EU) 2017/1369 is subject to specific expression being given to the 
obligation by means of a delegated act. 
18 … 
19 12 The Senate maintains these statements. A comparison to the English and 
French versions of Article 6(1)(a) of Regulation 2017/1369 in particular also 
supports the correctness of that view. 
20 Other higher regional courts have taken a different position. 
21 For example, Oberlandesgericht Braunschweig (Higher Regional Court, 
Braunschweig, Germany) (decision of 20 July 2022, ref. 2 U 9/22) states, inter 
alia: 
22 7 … Contrary to the view of the defendant, said obligation to indicate the 
range of available efficiency classes derives directly from Article 6(1)(a) of 
Regulation (EU) 2017/1369, not from the relevant delegated act. 
23 8 It is true that regulations on range are only to be found in the new 
delegated regulations …. These regulations … are … not yet applicable at the 
time of the infringement relevant to the case …. The delegated regulations 
relevant at that time, that is to say Regulation No 1059/2010 for household 
dishwashers … and Regulation No 65/2014 for household ovens and extractor 
hoods, do not contain any specifications on the range of available energy 
efficiency classes. It does not follow, however, that, as the defendant contends, 
there is no obligation to refer to the range of energy efficiency classes in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-761/22 
 
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advertising. That is because, correctly, that obligation already flows directly from 
Article 6(1)(a) of Regulation (EU) 2017/1369 … 
24 9 It is correct that Article 6(1)(a) of Regulation 2017/1369 refers to the 
relevant delegated act with regard to the dealer’s obligation to indicate the range 
of available efficiency classes. In accordance with Article 16(3)(j) of Regulation 
2017/1369, that act must specify how the energy efficiency class and the range of 
efficiency classes available on the label are to be indicated in advertising, 
including with regard to legibility and visibility. Ultimately, however, as is 
apparent from Article 16(1) of Regulation 2017/1369, the delegated act has only 
the task of supplementing the regulation by laying down detailed requirements. By 
contrast, Article 20(4) of the regulation provides that delegated acts adopted 
pursuant to Article 10 of Directive 2010/30/EU and pursuant to Directive 
96/60/EC are to remain in force until they are repealed by a delegated act adopted 
pursuant to Article 16 of the regulation for the product group concerned. 
However, the continuing validity of those existing requirements does not affect 
the validity of the obligations under the regulation (second sentence of 
recital 38 …). 
25 10 If the delegated act lacks relevant provisions with regard to the range of 
available efficiency classes, this only concerns ‘how’ the range is to be indicated 
in the advertising material (see Article 16(3)(j) of Regulation 2017/1369), not 
‘whether’ such an indication has to be made at all. Rather, the latter follows 
directly from Article 6(1)(a) of Regulation (EU) 2017/1369. If the delegated acts 
therefore do not contain the necessary information for the presentation of the 
range, that only leads to ambiguity in so far as there are then no detailed 
instructions on how the information is to be provided. The consequence of that is 
that until the new delegated acts enter into force, dealers have a certain amount of 
leeway regarding the type of presentation and the answer to the question of how 
the information on the range of available energy efficiency classes is to be 
provided must be provided for directly by Regulation (EU) 2017/1369. In that 
respect, in view of recital 14, an indication in text form should be sufficient. 
26 11 The view of the Oberlandesgericht Hamm (Higher Regional Court, Hamm) 
that such leeway for dealers runs counter to the objective of the regulation, as set 
out in recital 10, to provide customers with comparable information, fails to take 
into account that a suspension of the obligation to indicate the range of available 
energy efficiency classes until new delegated acts governing more detailed 
requirements enter into force does not take sufficient account of the overriding 
consideration of contributing, by way of the regulation, to energy efficiency. 
27 The Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) 
states, inter alia: 
28 In addition, the defendant’s internet offer also had to meet the requirements of the 
basic standard of Article 6(a) of Regulation (EU) 2017/1369 for energy labelling 
in advertising. Its application is not precluded by the continued validity of the 
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previous delegated regulation as the more specific provision. On the contrary, the 
second sentence of recital 38 of Regulation 2017/1369 states expressly that the 
validity of the previous delegated acts does not affect the validity of the 
obligations under that regulation. Accordingly, the second sentence of 
Article 20(4) of Regulation 2017/1369 provides that the obligations under the 
regulation apply to all product groups covered by the previous delegated acts. 
Furthermore, the application of Article 6(a) of Regulation 2017/1369 is not 
suspended until the delegated acts adopted on the basis of the regulation enter into 
force. Although the delegated acts are to specify for specific product groups … 
inter alia, the manner in which the energy efficiency class and the available range 
are to be indicated in visually perceptible advertising, Article 16(3)(j) of 
Regulation 2017/1369. Article 16(1) of Regulation 2017/1369 states expressly that 
the delegated acts are intended only to supplement the regulation. This precludes 
suspending the application of Article 6(a) of Regulation 2017/1369 until the entry 
into force of the delegated regulation … Ultimately, the provision has sufficient 
meaning even without further detailing of the requirements for energy 
consumption labelling in visually perceptible advertising. It specifies what 
information must be provided in advertising, but leaves how the information 
should be provided to the discretion of the obligated party. 
29 According to Article 6(a) of Regulation (EU) 2017/1369, an indication of the 
energy efficiency class and the available range is required. … 
30 The referring court sees that, with regard to products relevant to energy labelling 
for which no delegated acts have yet been adopted, suppliers and dealers do in 
practice take different approaches to the design of indications relating to energy 
efficiency class and range, in some cases omitting the indications altogether. The 
referring court notes that the new designations and existing designations are 
observed to co-exist for the most part, depending on whether delegated acts 
already exist or are not yet in place. In that context, the previous labels 
undoubtedly continue to be informative in a domestic comparison, whereby the 
classification of new and previous labels in the context of the overall situation, 
taking into account the different types of products relevant to energy labelling, 
and knowledge of the reasons why delegated acts are still pending in some cases, 
could create (even) more transparency for consumers. 
31 According to the referring court, the answer to the questions referred will make it 
possible, beyond the resolution of the dispute in the present case, to determine the 
scope of the guidance to be provided to consumers under EU law during the 
transition period pending creation of all the necessary delegated acts in a situation 
of divergent decisions by higher courts.