Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

ORDER OF THE COURT (Eighth Chamber)

5 October 2023 (*)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Reply which admits of no reasonable doubt – Energy – Framework for energy labelling – Regulation (EU) 2017/1369 – Article 6, first paragraph, point (a) – Obligation on suppliers and dealers of a product to make reference, in their visual advertisements, to the energy efficiency class of that product and the range of energy efficiency classes shown on the label for the product group concerned – Direct applicability of that obligation – Margin of discretion available to those suppliers and dealers to comply with that obligation in the absence of the adoption of a delegated act on the basis of that regulation)

In Case C‑761/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Bochum (Regional Court, Bochum, Germany), made by decision of 23 November 2022, received at the Court on 15 December 2022, in the proceedings

Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel und Industrie e.V.

v

Roller GmbH & Co. KG,

THE COURT (Eighth Chamber),

composed of M. Safjan (Rapporteur), President of the Chamber, N. Piçarra and M. Gavalec, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of point (a) of the first paragraph of Article 6 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 (OJ 2017 L 198, p. 1).

2        The request has been made in proceedings between Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel und Industrie e.V. and Roller GmbH & Co. KG concerning a request that the latter be ordered to cease advertising domestic ovens and range hoods in which the range of energy efficiency classes shown on the label for the product group concerned is not indicated.

 Legal context

 European Union law

 Directive 2010/30/EU

3        Recitals 5 and 8 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 (OJ 2010 L 153, p. 1) stated:

‘(5)      The provision of accurate, relevant and comparable information on the specific energy consumption of energy-related products should influence the end-user’s choice in favour of those products which consume or indirectly result in consuming less energy and other essential resources during use, thus prompting manufacturers to take steps to reduce the consumption of energy and other essential resources of the products which they manufacture. It should also, indirectly, encourage the efficient use of these products in order to contribute to the EU’s 20% energy efficiency target. In the absence of this information, the operation of market forces alone will fail to promote the rational use of energy and other essential resources for these products.

…

(8)      Information plays a key role in the operation of market forces and it is therefore necessary to introduce a uniform label for all products of the same type, to provide potential purchasers with supplementary standardised information on those products’ costs in terms of energy and the consumption of other essential resources and to take measures to ensure that potential end-users who do not see the product displayed, and thus have no opportunity to see the label, are also supplied with this information. In order to be efficient and successful, the label should be easily recognisable to end-users, simple and concise. To this end the existing layout of the label should be retained as the basis to inform end-users about the energy efficiency of products. Energy consumption of and other information concerning the products should be measured in accordance with harmonised standards and methods.’

4        Article 10 of that directive provides:

‘1.      The [European] Commission shall lay down details relating to the label and the fiche by means of delegated acts in accordance with Articles 11 to 13, relating to each type of product in accordance with this Article.

…’

 Delegated Regulation (EU) No 65/2014

5        Commission Delegated Regulation (EU) No 65/2014 of 1 October 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to the energy labelling of domestic ovens and range hoods (OJ 2014 L 29, p. 1) was, in accordance with its second citation, adopted on the basis of Article 10 of Directive 2010/30.

6        Article 3 of that delegated regulation, entitled ‘Responsibilities of suppliers and timetable’, provides:

‘Suppliers shall ensure that:

(1)      as regards labels, fiches and technical documentation

(a)      for domestic ovens:

(i)      each domestic oven is supplied with (a) printed label(s) containing information in the format set out in point 1 of Annex III for each cavity of the oven;

…

(iv)      any advertisement for a specific model of domestic oven contains the energy efficiency class, if the advertisement discloses energy-related or price information;

(v)      any technical promotional material concerning a specific model of domestic oven which describes its specific technical parameters includes the energy efficiency class of that model;

…

(b)      for domestic range hoods

(i)      each domestic range hood is supplied with a printed label containing information in the format set out in point 2 of Annex III;

…

(iv)      any advertisement for a specific model of domestic range hood contains the energy efficiency class, if the advertisement discloses energy-related or price information;

(v)      any technical promotional material concerning a specific model of domestic range hood which describes its specific technical parameters includes the energy efficiency class of that model;

…

(3)      as regards formats of the labels:

(a)      for domestic ovens, the format of the label for the cavity of the oven shall be as set out in point 1 of Annex III, for appliances placed on the market from 1 January 2015;

(b)      for domestic range hoods, the format of the label shall be as set out in point 2 of Annex III, according to the following timetable:

…

(iv)      for domestic range hoods placed on the market from 1 January 2020 with energy efficiency classes A⁺⁺⁺, A⁺⁺, A⁺, A, B, C and D, labels shall be in accordance with point 2.1.4 of Annex III (Label 4).

…’

7        Article 4 of the delegated regulation, which is entitled ‘Responsibilities of dealers’, reads as follows:

‘Dealers shall ensure that:

(1)      for domestic ovens:

…

(c)      any advertisement for any form or medium of distance selling and marketing concerning a specific model of oven contains a reference to the energy efficiency class, if the advertisement discloses energy-related or price information;

(d)      any technical promotional material concerning a specific model which describes the technical parameters of an oven includes the energy efficiency class of the model;

(2)      for domestic range hoods:

…

(c)      any advertisement for any form or medium of distance selling and marketing concerning a specific model of domestic range hood contains a reference to the energy efficiency class, if the advertisement discloses energy-related or price information;

(d)      any technical promotional material concerning a specific model which describes the technical parameters of a domestic range hood includes the energy efficiency class of the model.’

8        Annex III to the same delegated regulation is entitled ‘The label’. Point 1.1.1 of that annex, entitled ‘Label presentation – for each cavity of a domestic electric oven’, includes the following image:

9        Point 1.1.2 of Annex III to Delegated Regulation No 65/2014, entitled ‘Label information – domestic electric ovens’, sets out the legend for the Roman numerals shown in the image reproduced in point 1.1.1 of that annex and provides:

‘The following information shall be included in the label:

…

IV.      The energy efficiency class of the cavity determined in accordance with Annex I. The head of the arrow containing the indicator letter shall be placed at the same height as the head of the arrow of the relevant energy efficiency class;

…’

10      Under point 1.1.3 of Annex III to that delegated regulation, entitled ‘Label design – domestic electric ovens’:

‘The design of the label for each cavity of a domestic electric oven shall be as in the following figure:

Whereby:

…

(5)      Scale of energy classes

–        Arrow: height: 5,5 mm, gap: 1 mm – colours:

–        Highest class: X-00-X-00

–        Second class: 70-00-X-00

–        Third class: 30-00-X-00

–        Fourth class: 00-00-X-00

–        Fifth class: 00-30-X-00

–        Sixth class: 00-70-X-00

–        Last class: 00-X-X-00

–        Text: Calibri bold 18 pt, capitals and white; ‘+’ symbol: Calibri bold 12 pt, white, aligned on a single row.

(6)      Energy efficiency class

–        Arrow: width: 20 mm, height: 10 mm, 100% black;

–        Text: Calibri bold 24 pt, capitals and white; ‘+’ symbol: Calibri bold 18 pt, white, aligned on a single row.

…’

11      Point 2.1.4 of Annex III to that delegated regulation, entitled ‘Domestic range hoods in energy efficiency classes A+++ to D (label 4)’, includes the following image:

12      Point 2.2 of Annex III to the same delegated regulation, entitled ‘Label information – domestic range hoods’, sets out the legend for the Roman numerals shown in particular in the image reproduced in point 2.1.4 of that annex and provides:

‘‘The following information shall be included in the label:

…

III.      The energy efficiency class of the domestic range hood, determined in accordance with Annex I. The head of the arrow containing the energy efficiency class of the domestic range hood shall be placed at the same height as the head of the arrow of the relevant energy efficiency class;

…’

13      Under point 2.3 of Annex III to Delegated Regulation No 65/2014, entitled ‘Label design – domestic range hoods’:

‘The design of the label shall be as in the following figure:

Whereby:

…

(5)      Scale of energy classes

–        Arrow: height: 4 mm, gap: 0.75 mm – colours:

–        Highest class: X-00-X-00

–        Second class: 70-00-X-00

–        Third class: 30-00-X-00

–        Fourth class: 00-00-X-00

–        Fifth class: 00-30-X-00

–        Sixth class: 00-70-X-00

–        Last class: 00-X-X-00

–        Text: Calibri bold 10 pt, capitals and white; ‘+’ symbol: Calibri bold 7 pt, white, aligned on a single row.

(6)      Energy efficiency class

–        Arrow: width: 15 mm, height: 8 mm, 100% black;

–        Text: Calibri bold 17 pt, capitals and white; ‘+’ symbol: Calibri bold 12 pt, white, aligned on a single row.

…’

 Regulation 2017/1369

14      Recitals 2 and 10 of Regulation 2017/1369 state:

‘(2)      Energy labelling enables customers to make informed choices based on the energy consumption of energy-related products. Information on efficient and sustainable energy-related 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. Improving the efficiency of energy-related products through informed customer choice and harmonising related requirements at Union level benefits also manufacturers, industry and the Union economy overall.

…

(10)      The provision of accurate, relevant and comparable information on the specific energy consumption of energy-related products facilitates the customer's choice in favour of products which consume less energy and other essential resources during use. A standardised mandatory label for energy-related products is an effective means by which to provide potential customers with comparable information on the energy efficiency of energy-related products. The label should be supplemented by a product information sheet. The label should be easily recognisable, simple and concise. To that end, the existing dark green to red colour scale of the label should be retained as the basis for informing customers about the energy efficiency of products. In order for the label to be of real use for customers looking for energy and cost savings, the steps of the label scale should correspond to significant energy and cost savings for customers. For the majority of product groups, the label should, where appropriate, also indicate the absolute energy consumption in addition to the label scale, in order to allow customers to predict the direct impact of their choices on their energy bills. However, it is impossible to provide the same information with regard to energy-related products that do not themselves consume energy.

…’

15      Point (a) of the first paragraph of Article 6 of that regulation states:

‘The supplier and the dealer shall:

(a)      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’.

16      Article 16 of that regulation is worded as follows:

‘1.      The Commission is empowered to adopt delegated acts in accordance with Article 17 in order to supplement this Regulation by establishing detailed requirements relating to labels for specific product groups.

…

3.      Delegated acts relating to specific product groups shall specify, in particular:

…

(j)      how 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;

…’

17      Article 20(4) of the same regulation provides:

‘Delegated acts adopted pursuant to Article 10 of Directive 2010/30/EU and [Commission] Directive 96/60/EC [of 19 September 1996 implementing Council Directive 92/75/EEC with regard to energy labelling of household combined washer-driers (OJ 1996 L 266, p. 1)] shall remain in force until they are repealed by a delegated act adopted pursuant to Article 16 of this Regulation covering the relevant product group.

Obligations under this Regulation shall apply in relation to product groups covered by delegated acts adopted pursuant to Article 10 of Directive 2010/30/EU and by Directive 96/60/EC.’

 Delegated Regulations (EU) 2019/2013, 2019/2014, 2019/2015, 2019/2016, 2019/2017 and 2019/2018

18      Annexes VII and VIII to Commission Delegated Regulation (EU) 2019/2013 of 11 March 2019 supplementing Regulation (EU) 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 2019 L 315, p. 1), to Commission Delegated Regulation (EU) 2019/2014 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of household washing machines and household washer-dryers and repealing Commission Delegated Regulation (EU) No 1061/2010 and Commission Directive 96/60/EC (OJ 2019 L 315, p. 29), to Commission Delegated Regulation (EU) 2019/2015 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of light sources and repealing Commission Delegated Regulation (EU) No 874/2012 (OJ 2019 L 315, p. 68), to Commission Delegated Regulation (EU) 2019/2016 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of refrigerating appliances and repealing Commission Delegated Regulation (EU) No 1060/2010 (OJ 2019 L 315, p. 102), to Commission Delegated Regulation (EU) 2019/2017 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of household dishwashers and repealing Commission Delegated Regulation (EU) No 1059/2010 (OJ 2019 L 315, p. 134) and to Commission Delegated Regulation (EU) 2019/2018 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of refrigerating appliances with a direct sales function (OJ 2019 L 315, p. 155), contain the following figures, it being specified that the monochrome figure is reproduced only in Annex VII to those delegated regulations:

‘ ’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

19      Roller operates approximately 150 furniture shops throughout Germany and describes itself as Germany’s largest discount furniture retailer.

20      At the beginning of 2022, it advertised a kitchen unit at a price of EUR 1 699.00 in the ‘Kitchens on offer’ section of its website. As well as information on the kitchen furniture, it also provided information about the electrical appliances integrated into the kitchen. In particular, it indicated that the energy efficiency class of the built-in oven and the extractor hood was ‘A’ and ‘C’ respectively. This was indicated by a graphic arrow with a coloured background: yellow for the built-in oven and orange for the extractor hood. However, the ranges of energy efficiency classes, as shown on the label of the appliances concerned, were missing.

21      Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel und Industrie is a registered association with legal personality. According to its articles of association, its purpose for more than 40 years has been, in particular, to promote the commercial interests of its members and to combat unfair competition and promote fair competition by participating in legal research, awareness-raising and instruction in cooperation with the competent bodies of the administration of justice.

22      On 10 February 2022, Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel und Industrie unsuccessfully served formal notice on Roller for infringement of, inter alia, Regulation 2017/1369, on the grounds that it had failed to mention the range of energy efficiency classes in its advertising in relation to the oven and extractor hood concerned.

23      Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel und Industrie then brought an action before the Landgericht Bochum (Regional Court of Bochum, Germany), the referring court, seeking, inter alia, to prevent such advertising in the future.

24      In particular, Verband Wirtschaft im Wettbewerb Verein für Lauterkeit in Handel und Industrie considers that, under point (a) of the first paragraph of Article 6 of Regulation 2017/1369, dealers such as Roller are required to make reference, in visual advertisements for domestic ovens and hoods, to the energy efficiency class of the appliances concerned and to the range of efficiency classes shown on the label of the product groups concerned, namely, as regards both domestic ovens and hoods, the range of efficiency classes between A+++ and D.

25      Before the national court, Roller maintains, for its part, that it is under no obligation to mention the range of energy efficiency classes of the product groups concerned in its advertisements for electric ovens and hoods. That obligation has still not been given specific expression, in respect of those product groups, by a delegated act adopted on the basis of Regulation 2017/1369, nor does it derive directly from Article 6 of that regulation.

26      The referring court notes that, as regards domestic ovens and hoods, no delegated act has yet been adopted on the basis of Regulation 2017/1369 and that Delegated Regulation No 65/2014, which was adopted on the basis of Directive 2010/30 as repealed by Regulation 2017/39, does not contain any obligation to indicate the range of energy efficiency classes of the product group concerned in the corresponding visual advertisements and technical promotional materials.

27      In that context, that court also asks whether it can be inferred directly from point (a) of the first paragraph of Article 6 of Regulation 2017/1369 that dealers such as Roller are required to make reference in their visual advertisements and technical promotional materials to the energy efficiency class of the appliances concerned and to the range of energy efficiency classes shown on the label of the product group concerned or whether the application of such an obligation is ‘suspended’ until the entry into force of a delegated act adopted on the basis of that regulation. In the event that those dealers are bound by that obligation, the referring court also wishes to know whether they have a certain margin of discretion in presenting that energy efficiency class and range and what possibilities they have for exercising that margin of discretion.

28      In those circumstances, the Landgericht Bochum (Regional Court of Bochum) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does [point (a) of the first paragraph of Article 6] of Regulation [2017/1369] 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 [point (a) of the first paragraph of Article 6] of Regulation [2017/1369], 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 [2](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 [in the main proceedings] 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?’

 Consideration of the questions referred

29      Under Article 99 of its Rules of Procedure, the Court may, in particular where the reply to the question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, decide at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to rule by reasoned order.

30      That provision should be applied in the present case.

31      By its questions, which must be considered together, the referring court asks, in essence, whether point (a) of the first paragraph of Article 6 of Regulation 2017/1369 is to be interpreted as meaning that suppliers and dealers of a product are required, in their visual advertisements or technical promotional materials for a specific model of that product, to make reference to the energy efficiency class of that product and the range of the efficiency classes shown on the label of the product group concerned where that product group has been the subject of a delegated act adopted on the basis of Directive 2010/30 and not of a delegated act adopted on the basis of Regulation 2017/1369. If so, the referring court wishes to know how those suppliers and dealers may indicate that energy efficiency class and range of efficiency classes in the advertising or promotional material concerned.

32      In the first place, it should be recalled that, under point (a) of the first paragraph of Article 6 of Regulation 2017/1369, suppliers and dealers of a product must make reference to the energy efficiency class of that product and the range of the efficiency classes shown on the relevant product group label in visual advertisements or technical promotional material for a specific model of that product in accordance with the relevant delegated act.

33      It is also apparent from Article 16(1) and (3)(j) of Regulation 2017/1369 that the Commission is empowered to adopt delegated acts in order to supplement that regulation by specifying, in particular, how that energy efficiency class and range of efficiency classes are to be included in the relevant visual advertisements and technical promotional material, ‘having regard, in particular, to legibility and visibility’.

34      Thus, the obligation for suppliers and dealers of a product to make reference to that energy efficiency class and range of efficiency classes in their visual advertisements or technical promotional materials results from Article 6 of Regulation 2017/1369, whereas the delegated acts adopted on the basis of Article 16 of that regulation are intended solely to specify how those suppliers and dealers must make such a reference.

35      It must therefore be concluded that the very obligation to make such a reference derives directly from point (a) of the first paragraph of Article 6 of Regulation 2017/1369, so that it is binding on those suppliers and dealers, even though no delegated act has been adopted for the group of products concerned on the basis of Article 16 of that regulation.

36      It is true that, where such a delegated act has not been adopted, the ‘relevant delegated act’, within the meaning of point (a) of the first paragraph of Article 6 of that regulation, covers, by virtue of the combined provisions of Article 16(1) and the first subparagraph of Article 20(4) of Regulation 2017/1369, the delegated act adopted for the product group concerned, on the basis, inter alia, of Directive 2010/30, which preceded Regulation 2017/1369.

37      That being said, the second subparagraph of Article 20(4) of Regulation 2017/1369 states that the obligations under that regulation are to apply in relation to product groups covered by delegated acts adopted, inter alia, under Directive 2010/30.

38      Therefore, even where a delegated act has been adopted on the basis of Directive 2010/30 without, however, providing for an obligation on suppliers and dealers of a product to make reference to the energy efficiency class of that product and to the range of the efficiency classes shown on the label of the product group concerned in their visual advertisements or technical promotional materials, that obligation remains enforceable against suppliers and dealers of that product by virtue of point (a) of the first paragraph of Article 6 of Regulation 2017/1369.

39      Since the delegated act adopted on the basis of Article 10 of Directive 2010/30 does not set out that obligation, it cannot, by definition, specify the way in which those suppliers and dealers must make reference to the energy efficiency class of the product concerned and the range of efficiency classes shown on the label of the product group concerned in their visual advertisements or technical promotional materials.

40      In this case, the product group of domestic ovens and hoods was the subject of Delegated Regulation No 65/2014 adopted on the basis of Article 10 of Directive 2010/30. However, as the referring court explained in response to a request for information from the Court, that delegated regulation does not impose an obligation on those suppliers and dealers to indicate the range of energy efficiency classes in their visual advertisements and technical promotional materials. In addition, while it provides for the obligation to make reference to the energy efficiency class in such advertising and promotional materials, as is clear from Article 3(1)(a), (iv) and (v) and Article 3(1)(b), (iv) and (v) of Delegated Regulation No 65/2014, as well as Article 4(1)(c) and (d), and Article 4(2)(c) and (d) thereof, none of its other provisions specifies the way in which such a reference must be made.

41      In these circumstances and until such time as a delegated act is adopted for the product group relating to domestic ovens and hoods on the basis of Article 16 of Regulation 2017/1369, it must be concluded that those suppliers and dealers have a certain margin of discretion as to how to make reference to the energy efficiency class and the range of efficiency classes in their visual advertisements and technical promotional materials.

42      However, that discretion cannot be exercised without limits.

43      Firstly, it follows in essence from Article 3(1)(a)(i) and (b)(i) and Article 3(3)(a) and (b) of Delegated Regulation No 65/2014 that each domestic oven and hood must be supplied with a label containing the information in the format set out in points 1 and 2 of Annex III to that delegated regulation. In particular, points 1.1.1 to 1.1.3, 2.1.4, 2.2 and 2.3 of that annex set out how the energy efficiency class of the product concerned and the range of efficiency classes shown on the label of the product group concerned must be presented on the label of that product group in terms of positioning, format, size, font and colour. Consequently, in exercising the discretion referred to in point 41 of this order, the suppliers and dealers concerned must, as far as possible in view of the nature, size and commercial imperatives of their advertising and promotional materials, take account of such a presentation.

44      Secondly, Article 16(3)(j) of Regulation 2017/1369 states that delegated acts adopted on the basis of that regulation must specify how the energy efficiency class of the product concerned and the range of efficiency classes shown on the label of the product group concerned are to be included in visual advertisements and technical promotional material, ‘including legibility and visibility’. It follows that, where suppliers and dealers of a product exercise the discretion referred to in paragraph 41 of this order in the absence of a delegated act adopted on the basis of that regulation, they must nevertheless ensure that the energy efficiency class of the product and the range of efficiency classes shown on the label of the product group concerned appear legibly and visibly in their visual advertisements and technical promotional material. Such a requirement may lead them to refrain from presenting those classes and ranges in the same way as that adopted on the label of that product group if, due to the nature, size and commercial imperatives of the advertising or promotional material concerned, such a presentation would not lead to a legible and/or visible result.

45      Thirdly, it follows from recitals 5 and 8 of Directive 2010/30 and recitals 2 and 10 of Regulation 2017/1369 that the objective of providing accurate, relevant and comparable information on the specific energy consumption of energy-related products by means of a uniform energy label which must be attached by a trader to a given product contributes to the protection of the consumer concerned. Information for that consumer on the energy efficiency of products during use and on the energy consumption of energy-related products, thereby enabling that consumer to make informed choices, is the essential objective of those EU acts (see, to that effect, judgments of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 64, and of 25 July 2018, Dyson, C‑632/16, EU:C:2018:599, paragraph 33).

46      Therefore, in exercising the discretion referred to in paragraph 41 of this order, suppliers and dealers of a product must ensure that an average, reasonably well-informed and reasonably observant and circumspect consumer can easily identify the energy efficiency class of the product and the range of efficiency classes shown on the label of the product group concerned so as to be informed about the energy consumption of that product, to be able to compare that consumption with that of products in the same group offered in other visual advertisements or other technical promotional material and thus, where appropriate, to make informed purchasing choices.

47      Fourthly, it is also apparent from recital 10 of Regulation 2017/1369 that, as regards the range of energy efficiency classes shown on the label for the product group concerned, the EU legislature wished to retain the existing dark green to red colour scale of that label as the basis for informing consumers. Furthermore, it is well known that the principle according to which the letters attached to the different energy efficiency classes and their ranges appear in an arrow symbol whose background colour corresponds to that of the letter concerned, as is apparent in particular from points 1 and 2 of Annex III to Delegated Regulation No 65/2014, is common to all EU acts on energy labelling. Since consumers have long been familiar with that colour scale and arrow symbol, when the producers and dealers concerned opt, in exercising the discretion referred to in paragraph 41 of this order, for a graphic representation of those classes and ranges in their visual advertisements and technical promotional material, they must, at the very least, comply with that scale and symbol. However, the colour requirement cannot objectively be applied when the advertising or promotional material concerned is printed in monochrome.

48      It is apparent from the considerations set out in paragraphs 43 to 47 of this order that, until a delegated act is adopted for the product group of domestic ovens and hoods on the basis of Article 16 of Regulation 2017/1369, suppliers and dealers of a product in that group must, in order to enable the consumer concerned to obtain clear information about the energy consumption of that product and to make comparisons and informed purchasing choices easily, make reference, in their visual advertisements and technical promotional material, to the energy efficiency class of that product and to the range of efficiency classes in the same way as that adopted on the label for the product group concerned, provided that such a presentation remains legible and visible having regard to the nature, size and commercial imperatives of such advertising and promotional material.

49      If such a presentation is not feasible, those suppliers and dealers must in any event opt for an equivalent presentation that meets the consumer information requirements recalled in paragraphs 46 and 48 of this order as well as the legibility and visibility requirements referred to in Article 16(1) and (3)(j) of Regulation 2017/1369.

50      By way of example and without prejudice to other possible solutions, they may mention, in a legible and visible manner, the energy efficiency class of the product concerned and the range of energy efficiency classes by means of an expression easily understandable to the average consumer, who is reasonably well-informed and reasonably observant and circumspect, such as ‘the energy efficiency class of this model/product is [relevant letter] within a range from [first letter] to [last letter]’, or else indicate the letter of the energy efficiency class concerned in an arrow whose background colour must be that of the corresponding letter of the range of energy efficiency classes and specify alongside that arrow the extent of the range by means of an equivalent statement or symbol easily understandable to such a consumer. The positioning, size and font of those references must be chosen in such a way that they are legible and visible and thus clearly stand out, for the consumer, in the advertising or promotional material concerned. Where such suppliers and dealers opt for the arrow symbol, they may be guided by the graphic presentation adopted by the Commission in delegated regulations adopted on the basis of Article 16 of Regulation 2017/1369 for other product groups, as reproduced in paragraph 18 of this order.

51      In the light of the foregoing, the questions referred for a preliminary ruling should be answered as follows:

–        point (a) of the first paragraph of Article 6 of Regulation 2017/1369 is to be interpreted as meaning that suppliers and dealers of a product are required, in their visual advertisements or technical promotional materials for a specific model of that product, to make reference to the energy efficiency class of that product and the range of the efficiency classes shown on the label of the product group concerned where that product group has been the subject of a delegated act adopted on the basis of Directive 2010/30 and not of a delegated act adopted on the basis of Regulation 2017/1369;

–        where that delegated act does not provide for the manner in which such reference is to be made by those suppliers and dealers, and until such time as a delegated act is adopted for the product group concerned on the basis of Article 16 of Regulation 2017/1369, they are to make reference, in their visual advertisements and technical promotional materials, to that energy efficiency class and range of efficiency classes in the same way as that adopted on the label for that product group, provided that such a presentation remains legible and visible having regard to the nature, size and commercial imperatives of such advertising and promotional material;

–        if such a presentation is not feasible, those suppliers and dealers must in any event opt for an equivalent presentation that meets the consumer information requirements as well as the legibility and visibility requirements as they result from Regulation 2017/1369.

 Costs

52      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Eighth Chamber) hereby rules:

Point (a) of the first paragraph of Article 6 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

must be interpreted as meaning that suppliers and dealers of a product are required, in their visual advertisements or technical promotional materials for a specific model of that product, to make reference to the energy efficiency class of that product and the range of the efficiency classes shown on the label of the product group concerned where that product group has been the subject of a delegated act adopted on the basis 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, and not of a delegated act adopted on the basis of Regulation 2017/1369.

Where that delegated act does not provide for the manner in which such reference is to be made by those suppliers and dealers, and until such time as a delegated act is adopted for the product group concerned on the basis of Article 16 of Regulation 2017/1369, they are to make reference, in their visual advertisements and technical promotional materials, to that energy efficiency class and range of efficiency classes in the same way as that adopted on the label for that product group, provided that such a presentation remains legible and visible having regard to the nature, size and commercial imperatives of such advertising and promotional material.

If such a presentation is not feasible, those suppliers and dealers must in any event opt for an equivalent presentation that meets the consumer information requirements as well as the legibility and visibility requirements as they result from Regulation 2017/1369.

[Signatures]

*      Language of the case: German.

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