Labelling electronic goods

EU law determines the requirements for energy labelling. Photo:

EU law determines the requirements for energy labelling. Photo:

Suppliers of electronic products are not obliged to provide consumers with information relating to the tests conducted in order to arrive at the energy grade given to such products, the Court of Justice of the European Union (CJEU) has recently affirmed. Neither can they affix informative labels not specifically provided for by law and which are liable to mislead consumers.

EU law makes provision for a general obligation on behalf of all suppliers of energy-related products to label such products. The aim behind such labelling is to provide standard information about energy efficiency as well as information relating to the consumption of energy and other resources to consumers. In this way, consumers can take energy efficient decisions when purchasing such products.

Each specific product group is then further regulated by various legislative measures adopted by the European Commission. Since 2014, all vacuum cleaners sold in the EU have been subject to energy labelling requirements, the detailed rules of which have been set by the Commission in a regulation supplementing the general rules on energy labelling.

The facts of this case which came before the CJEU were briefly as follows. The company Dyson markets vacuum cleaners which operate without a dust bag. The company BSH markets conventional vacuum cleaners which operate with a dust bag. Dyson challenged the energy labelling of the vacuum cleaners marketed by BSH. Such labelling reflects the results of energy efficiency tests carried out with an empty dust bag. Dyson alleged that the energy labelling of BHS’s vacuum cleaners misleads consumers since, under normal conditions of use, the pores of the bag become clogged when it fills with dust. This means that the motor must generate more power to maintain the same suction.

On the other hand, the bag-less vacuum cleaners marketed by Dyson are not affected by that loss of energy efficiency under normal conditions of use. Also, BSH added, next to the energy label, several labels or symbols that are not provided for in the relevant EU law, namely, a green label stating ‘Energy A’, an orange label stating ‘AAAA Best rated: A in all classes’ and a black label with the image of a carpet and stating ‘class A Performance’.

EU law precisely lays out the design and content of the label

Dyson filed an action against BSH before the Belgian Commercial Court. The latter in turn filed a preliminary reference before the CJEU. The Belgian Court requested guidance as to whether, in terms of the EU law which safeguards consumers against unfair commercial practices, it is a “misleading omission” for suppliers to fail to provide to consumers information on the testing conditions which led to the energy classification indicated on the energy label. The national Court also requested guidance as to whether it was legal for BHS to add supplementary labels, in addition to the one provided for by law, specifying other type of information.

The CJEU affirmed that the relevant EU law precisely lays out the design and content of the label and provides that only a reproduction of the EU Ecolabel may be added to it. Such harmonisation is intended to ensure better legibility and better comparability of the information contained on it for the benefit of consumers, the Court observed. EU law therefore prohibits references other than the reproduction of the EU Ecolabel from being added to the energy label, including any information relating to the conditions under which the energy efficiency of vacuum cleaners was measured.

The Court then went on to analyse as to whether the law actually requires suppliers to provide information concerning testing conditions in places other than on the energy label itself. It observed that a commercial practice is to be regarded as misleading only if the information is deemed material. The CJEU noted that the exhaustive list of information which, according to law, must be brought to consumers’ attention by means of the energy label, does not allude to testing conditions. It therefore follows that, such information must not be regarded as material and that a failure on the part of the supplier to provide this information does not constitute a misleading omission.

The CJEU also examined the legality or otherwise of displaying labels or symbols other than the ones indicated on the energy label. It noted that the additional labels and symbols displayed by BSH on the packaging of its vacuum cleaners are not graphically identical to those used on the energy label. Such symbols actually repeat the same information found on the energy label while using a distinct graphic which could give the impression that they convey different information, the Court observed. The CJEU concluded that suppliers such as BHS may not use supplementary labels which reproduce or clarify the information displayed on the energy label where such information could mislead or confuse the consumer with respect to energy consumption.

The EU’s consumer acquis aims at giving consumers the opportunity to make well-informed decisions. Any action on behalf of suppliers which could have the opposite effect therefore goes against the very raison d’etre of such acquis and is frowned upon by the EU institutions.

Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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