6 April 2018
Opinion from Highest EU Court on Energy Labelling of Vacuum Cleaners Could Have Ramifications for Other Appliances As Well
An opinion delivered by an Advocate General of the EU’s Court of Justice contends that suppliers and dealers of vacuum cleaners may not use supplementary labels which reproduce or clarify the information contained in the energy label which is required by an EU regulation. Hong Kong sellers of electrical household appliances should note that the opinion, although it concerns vacuum cleaners, has ramifications also for other appliances that are subject to the EU’s energy labelling rules.
The opinion comes as a blow to UK manufacturer Dyson, a company which designs and manufactures household appliances including vacuum cleaners, hand dryers, heaters and hair dryers.
In addition, the Attorney-General opined that the Directive on unfair commercial practices does not apply to the specific aspects of unfair commercial practices governed by the energy labelling regulation, since the latter law does not provide any leeway to the traders concerned by it.
Hong Kong companies of electrical products may recall that since 1 September 2014, all vacuum cleaners sold in the EU have been subject to energy labelling requirements, the detailed rules of which have been fixed by the Commission in a regulation supplementing the Directive on energy labelling, namely, EU Regulation 665/2013. The energy labelling is aimed, among other matters, at informing consumers of energy efficiency levels and cleaning performances of vacuum cleaners.
Dyson sells vacuum cleaners that operate without a dust bag, while BSH Home Appliances, the owner of Dyson’s rivals Bosch and Siemens, sells conventional vacuum cleaners which operate with a dust bag.
Dyson has challenged the energy labelling of the vacuum cleaners marketed by BSH. The latter’s labelling reflects the results of energy efficiency tests carried out with an empty dust bag, in accordance with the EU Regulation. Dyson considers that the energy labelling of those vacuum cleaners misleads consumers. This is because, under normal conditions of use, the pores of the bag become clogged when it fills with dust so that the motor must generate more power to maintain the same suction. Moreover, the vacuum cleaners marketed by Dyson, due to their operating without a dust bag, are not affected by that loss of energy efficiency under normal conditions of use.
Dyson brought an action against BSH before the Commercial Court in Antwerp, Belgium. That court has asked the EU Court of Justice whether, in the light of the Directive on unfair commercial practices, BSH is misleading consumers by failing to mention that the tests were carried out with an empty dust bag. It should be pointed out that BSH is reported to have strictly complied with the provisions of the EU Regulation. The Antwerp court nonetheless asked whether the addition of such a reference (that the dust bag was empty when the appliance was tested) would be compatible with the provisions of the Regulation which establish the format and content of the label.
In his Opinion delivered on 22 February 2018, Advocate General Henrik Saugmandsgaard Øe considered that the Regulation gives manufacturers and dealers no leeway whatsoever in terms of the format and content of the energy label, meaning that they cannot specify the conditions under which the tests that led to the vacuum cleaner’s energy classification were performed.
The Advocate General has pointed out that use of the energy label is compulsory. Moreover, the label must comply with all the requirements of the Regulation as regards both its format and the information to be included in it. According to the Advocate General, by adopting the EU Regulation, the EU’s lawmakers made a deliberate choice as to the information to be provided to consumers by way of the energy label. The methodology used for measuring the energy performance of vacuum cleaners is not included in the information that must be provided to consumers.
In addition, the Advocate General opined that the Regulation precludes the use of supplementary labels which reproduce or clarify the information on the energy label. He has taken the view that allowing manufacturers or dealers to use supplementary labels would call into question the objective of the Regulation, namely the standardisation of the information provided to end users with respect to the consumption of energy and other essential resources. The Regulation does not, on the other hand, preclude the provision of information which falls outside its scope such as, for example, the selling price, place of manufacture or duration of the warranty.
Finally, the Advocate General examined whether the use of the energy label in accordance with the EU Regulation (i.e., without specifying the conditions under which the tests were performed) can constitute a misleading omission within the meaning of the Directive on unfair commercial practices. The Advocate General concluded that the Directive is not applicable here, as the EU Regulation on energy labelling has not allowed any leeway to the traders concerned, regarding the obligation to use the energy label. For that reason, it is not necessary, in his view, to determine whether a misleading omission within the meaning of the Directive exists.
While an Advocate General’s opinions are not binding on the Court of Justice, they nonetheless frequently influence the tenor of the judgments that eventually follow. The judges of the Court have begun their deliberations in this case, and judgment will be given at a later date.