European Union: Court Of Justice Of European Union Clarifies Concept Of "Misleading Omission" With Respect To Energy Classification Labelling Of Vacuum Cleaners

Last Updated: 5 October 2018
Article by Koen T’Syen

Most Read Contributor in Belgium, March 2019

On 25 July 2018, the Court of Justice of the European Union (the "ECJ") handed down its judgment concerning energy labels in a case involving Dyson and BSH (ECJ, 25 July 2018, Case C-632/16, Dyson Ltd and Dyson BV v. BSH Home Appliances NV). The ECJ held that not providing consumers with information on the testing conditions that resulted in the energy classification indicated on the energy label, does not constitute a "misleading omission" within the meaning of Article 7 of Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the "Unfair Commercial Practices Directive").

Moreover, the ECJ held that suppliers and manufacturers of vacuum cleaners are prohibited from displaying, in a place other than the energy label, any labels or symbols conveying additional information which could mislead or confuse end-users with respect to the energy consumption of the vacuum cleaner at issue. Such an action would be regarded as an infringement of (the now repealed) Directive 2010/30/EU of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by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 ("Directive 2010/30/EU") and Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU with regard to energy labelling of vacuum cleaners (the "Delegated Regulation").

The ECJ delivered its judgment in response to a request for a preliminary ruling from the Antwerp Commercial Court in a dispute between two producers of vacuum cleaners, Dyson Ltd ("Dyson") and BSH Home Appliances NV ("BSH"). Dyson produces vacuum cleaners operating without dust bags while the vacuum cleaners of BSH came with dust bags.

In accordance with Directive 2010/30/EU and the Delegated Regulation, all vacuum cleaners sold in the EU are subject to mandatory energy labelling requirements in order to provide consumers with accurate and relevant information on their specific energy consumption, which could influence the end-user's choice of product. Furthermore, Directive 2010/30/EU and the Delegated Regulation dictate a uniform design and content for the labelling of vacuum cleaners as well as a standardised test to determine their energy consumption.

However, as claimed by Dyson, the standardised test disregards the fact that vacuum cleaners with dust bags require more power to generate suction (due to the clogging of the pores of the bag when filled with dust). By contrast, vacuum cleaners without dust bags, such as those produced by Dyson, are unaffected by this power requirement. Therefore, the test fails to acknowledge the fact that the energy consumption of vacuum cleaners with dust bags gradually increases as the bags become fuller. Since the differences in energy consumption between vacuum cleaners operating with and without dust bags are not duly conveyed by the EU energy labels, Dyson challenged the energy labelling of vacuum cleaners produced by BSH.

In Dyson's opinion, for consumers to be fully informed of all product characteristics, information relating to the testing conditions which resulted in the energy classification must be provided to the consumers. Dyson claimed that not providing consumers with such information constitutes a "misleading omission" within the meaning of Article 7 of the Unfair Commercial Practices Directive. A commercial practice is considered to be misleading if it omits material information that the average consumer needs, in view of the context, to take an informed transaction decision.

The ECJ rejected Dyson's argument as it considered the reproduction of the EU Ecolabel as the only additional reference which can be added to the energy label under Directive 2010/30/EU and the Delegated Regulation. The ECJ added that information relating to the vacuum cleaner's testing conditions is not covered under the exhaustive list of information that must be brought to the attention of the end-user by means of an energy label. Consequently, such information is not material information for the average consumer and is, therefore, not capable of constituting a misleading omission within the meaning of Article 7 of the Unfair Commercial Practices Directive.

In addition, Dyson claimed that BSH's practice of attaching additional labels and symbols namely, a green label stating "Energy A", a black label stating "Class A Performance" and an orange label stating "AAAA Best rated: A in all classes", is also misleading. Therefore, the referring court asked the ECJ whether Directive 2010/30/EU and the Delegated Regulation prohibit the display of other labels or symbols besides the energy label which contain information relating to the energy consumption of vacuum cleaners.

The ECJ decided that such a display of supplementary labels is indeed prohibited. First, the ECJ noted that the labels and symbols used by BSH are not provided for and do not satisfy the requirements of the Delegated Regulation. Second, the ECJ stated that such labels or symbols could potentially mislead or confuse the consumer with respect to the energy consumption because some of the labels used by BSH repeat the same information conveyed by the normal energy label while relying on a distinct graphic. In accordance with this guidance of the ECJ, it is ultimately for the Antwerp Commercial Court to assess the facts of the particular case. 

Interestingly, in 2013, Dyson brought an action for the annulment of the Delegated Regulation. These proceedings are still ongoing as in May 2017, the ECJ set aside the judgment of the General Court in this case and referred the proceedings back to the General Court for reconsideration (ECJ, 11 May 2017, Case C-44/16 P, Dyson Ltd v. Commission). The General Court is still to deliver its second judgment (GC, Case T-544/13 RENV, Dyson Ltd. v. Commission).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions