JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
11 November 2015 (*)
(Directive 2010/30/EU — Indication by labelling and standard product information of the consumption of energy and other resources by energy-related products — Delegated Regulation (EU) No 665/2013 — Competence of the Commission — Equal treatment — Obligation to state reasons)
In Case T‑544/13,
Dyson Ltd, established in Malmesbury (United Kingdom), represented by F. Carlin, Barrister, E. Batchelor and M. Healy, Solicitors,
applicant,
v
European Commission, represented by E. White and K. Herrmann, acting as Agents,
defendant,
APPLICATION for annulment of Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1),
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written procedure and further to the hearing on 4 February 2015,
gives the following
Judgment
1 By its application, the applicant, Dyson Ltd, a company incorporated under the law of England and Wales that employs 4 400 people worldwide and designs, manufactures and markets bagless vacuum cleaners, seeks the annulment of Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1) (‘the contested regulation’).
Legal context
2 The contested regulation was adopted by the European Commission in order to supplement 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), with respect to energy labelling of vacuum cleaners.
Directive 2010/30
3 According to Article 1(1) and (2), Directive 2010/30 ‘establishes a framework for the harmonisation of national measures on end-user information, particularly by means of labelling and standard product information, on the consumption of energy and where relevant of other essential resources during use, and supplementary information concerning energy-related products, thereby allowing end-users to choose more efficient products’, with the directive applying ‘to energy-related products which have a significant direct or indirect impact on the consumption of energy and, where relevant, on other essential resources during use’.
4 Article 5(a) of Directive 2010/30 provides that Member States are to ensure that ‘suppliers placing on the market or putting into service products covered by a delegated act supply a label and a fiche in accordance with [that directive] and the delegated act’.
5 Article 10 of Directive 2010/30, headed ‘Delegated acts’, provides:
‘1. The 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.
Where a product meets the criteria listed in paragraph 2, it shall be covered by a delegated act in accordance with paragraph 4.
Provisions in delegated acts regarding information provided on the label and in the fiche on the consumption of energy and other essential resources during use shall enable end-users to make better informed purchasing decisions and shall enable market surveillance authorities to verify whether products comply with the information provided.
Where a delegated act lays down provisions with respect to both energy efficiency and consumption of essential resources of a product, the design and content of the label shall emphasise the energy efficiency of the product.
2. The criteria referred to in paragraph 1 are the following:
(a) according to most recently available figures and considering the quantities placed on the Union market, the products shall have a significant potential for saving energy and, where relevant, other essential resources;
(b) products with equivalent functionality available on the market shall have a wide disparity in the relevant performance levels;
(c) the Commission shall take into account relevant Union legislation and self-regulation, such as voluntary agreements, which are expected to achieve the policy objectives more quickly or at lesser expense than mandatory requirements.
3. In preparing a draft delegated act, the Commission shall:
(a) take into account those environmental parameters set out in Annex I, Part 1, to Directive 2009/125/EC which are identified as significant in the relevant implementing measure adopted under Directive 2009/125/EC and which are relevant for the end-user during use;
(b) assess the impact of the act on the environment, end-users and manufacturers, including small and medium-sized enterprises (SMEs), in terms of competitiveness including on markets outside the Union, innovation, market access and costs and benefits;
(c) carry out appropriate consultation with stakeholders;
(d) set implementing date(s), any staged or transitional measures or periods, taking into account in particular possible impacts on SMEs or on specific product groups manufactured primarily by SMEs.
4. The delegated acts shall specify in particular:
(a) the exact definition of the type of products to be included;
(b) the measurement standards and methods to be used in obtaining the information referred to in Article 1(1);
(c) the details of the technical documentation required pursuant to Article 5;
(d) the design and content of the label referred to in Article 4, which as far as possible shall have uniform design characteristics across product groups and shall in all cases be clearly visible and legible. The format of the label shall retain as a basis the classification using letters from A to G; the steps of the classification shall correspond to significant energy and cost savings from the end-user perspective.
Three additional classes may be added to the classification if required by technological progress. Those additional classes will be A+, A++, and A+++ for the most efficient class. In principle the total number of classes will be limited to seven, unless more classes are still populated.
The colour scale shall consist of no more than seven different colours from dark green to red. The colour code of only the highest class shall always be dark green. If there are more than seven classes, only the red colour can be duplicated.
The classification shall be reviewed in particular when a significant proportion of products on the internal market achieves the two highest energy efficiency classes and when additional savings may be achieved by further differentiating products.
Detailed criteria for a possible reclassification of products are, where appropriate, to be determined on a case-by-case basis in the relevant delegated act;
(e) …
(f) the content and, where appropriate, the format and other details concerning the fiche or further information specified in Article 4 and Article 5(c). The information on the label shall also be included on the fiche;
(g) the specific content of the label for advertising, including, as appropriate, the energy class and other relevant performance level(s) of the given product in a legible and visible form;
(h) the duration of label classification(s), where appropriate, in accordance with point (d);
(i) the level of accuracy in the declarations on the label and fiches;
(j) the date for the evaluation and possible revision of the delegated act, taking into account the speed of technological progress.’
6 Article 11 of Directive 2010/30, headed ‘Exercise of the delegation’, provides as follows:
‘1. The powers to adopt the delegated acts referred to in Article 10 shall be conferred on the Commission for a period of five years beginning on 19 June 2010. The Commission shall make a report in respect of the delegated powers not later than six months before the end of the five-year period. The delegation of powers shall be automatically extended for periods of an identical duration, unless the European Parliament or the Council revokes it in accordance with Article 12.
2. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
…’
The contested regulation
7 In order to supplement Directive 2010/30 with respect to energy labelling of vacuum cleaners, the Commission adopted the contested regulation on 3 May 2013.
8 Article 1(1) of the contested regulation states that it ‘establishes requirements for the labelling and the provision of supplementary product information for electric mains-operated vacuum cleaners, including hybrid vacuum cleaners’.
9 Article 3 of the contested regulation, headed ‘Responsibilities of suppliers and timetable’, provides:
‘1. Suppliers shall ensure that from 1 September 2014:
(a) each vacuum cleaner is supplied with a printed label in the format and containing the information set out in Annex II;
(b) a product fiche, as set out in Annex III, is made available;
(c) the technical documentation as set out in Annex IV is made available on request to the authorities of the Member States and to the Commission;
(d) any advertisement for a specific model of vacuum cleaner contains the energy efficiency class, if the advertisement discloses energy-related or price information;
(e) any technical promotional material concerning a specific model of vacuum cleaner which describes its specific technical parameters includes the energy efficiency class of that model.
2. The format of the label set out in Annex II shall be applied according to the following timetable:
(a) for vacuum cleaners placed on the market from 1 September 2014 labels shall be in accordance with label 1 of Annex II;
(b) for vacuum cleaners placed on the market from 1 September 2017 labels shall be in accordance with label 2 of Annex II.’
10 Article 5 of the contested regulation, headed ‘Measurement methods’, provides that the ‘information to be provided under Articles 3 and 4 shall be obtained by reliable, accurate and reproducible measurement and calculations methods, which take into account the recognised state-of-the-art measurement and calculation methods, as set out in Annex VI’.
11 Article 7 of the contested regulation, headed ‘Revision’, provides:
‘The Commission shall review this Regulation in light of technological progress no later than five years after its entry into force. The review shall in particular assess the verification tolerances set out in Annex VII, whether full size battery operated vacuum cleaners should be included in the scope and whether it is feasible to use measurement methods for annual energy consumption, dust pick-up and dust re-emission that are based on a partly loaded rather than an empty receptacle.’
12 Point 1 of Annex VI to the contested regulation provides:
‘For the purposes of compliance and verification of compliance with the requirements of this Regulation, measurements and calculations shall be made using a reliable, accurate and reproducible methods that take into account the generally recognised state-of-the-art measurement and calculation methods, including harmonised standards the reference numbers of which have been published for the purpose in the Official Journal of the European Union. They shall meet the technical definitions, conditions, equations and parameters set out this Annex.’
13 The contested regulation was published in the Official Journal of the European Union of 13 July 2013.
Procedure and forms of order sought
14 By application lodged at the Registry of the General Court on 7 October 2013, the applicant claimed that the Court should annul the contested regulation.
15 By separate document, lodged the same day at the Registry of the General Court, the applicant made an application for the case to be decided under an expedited procedure in accordance with Article 76a(1) of the General Court’s Rules of Procedure of 2 May 1991.
16 By letter lodged at the Court Registry on 31 October 2013, the Commission submitted its observations on the applicant’s application for an expedited procedure.
17 By decision of 26 November 2013, the applicant’s application to decide the present case by expedited procedure was dismissed.
18 Upon hearing the report of the Judge-Rapporteur, on 21 November 2014 the Court decided to open the oral procedure.
19 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 4 February 2015.
20 The applicant claims that the Court should:
– annul the contested regulation;
– order the Commission to pay the costs.
21 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
22 The applicant relies on three pleas in law in support of its action. The first alleges lack of competence on the part of the Commission, the second a failure to provide a statement of reasons for the contested regulation, and the third infringement of the principle of equal treatment.
23 The Court finds it appropriate to begin by addressing the first plea, followed by the third plea and lastly the second plea.
First plea in law: lack of competence on the part of the Commission
24 By the first plea, the applicant submits that the contested regulation is unlawful on the ground that the Commission acted beyond the scope of its powers under the directive.
25 The first plea in law consists of two parts.
26 By the first part, the applicant submits, inter alia, that the contested regulation will mislead consumers as to the energy efficiency of the vacuum cleaners.
27 By the second part, the applicant criticises the Commission for having failed to make provision in the contested regulation for an obligation to provide information on dust bags and filters as essential resources consumed during use of the appliance.
Admissibility of the first plea
28 Without expressly raising an objection of inadmissibility of the first plea, the Commission raises the issue of its admissibility, by observing that, although the applicant alleges the lack of competence of the Commission under Article 10(1) of Directive 2010/30, it is in fact pleading the inconsistency of the contested regulation with that provision. It does not argue that the contested regulation imposes obligations or sets requirements or conditions going beyond what the Commission is empowered to impose or provide for, but merely refers to an extract from Article 10(1) of Directive 2010/30 to state that the method for measuring energy efficiency ought to have been defined on the basis of tests carried out with a dust-loaded receptacle and ought to have laid down requirements with respect to dust bags and filters as essential resources.
29 The applicant is therefore challenging the assessment of the facts and regulatory choices made by the Commission in carrying out its mandate under the directive, although the Commission does leave it to the Court to determine whether the first plea in law must be held to be inadmissible on that basis on the ground of non-compliance with the requirement laid down in Article 44(1)(c) of the Rules of Procedure of 2 May 1991.
30 As the Commission is thus asking the Court to consider the admissibility of the first plea, although without specifically raising an objection to the admissibility of that plea, the issue of admissibility must be examined before proceeding, if necessary, to an assessment of the case on its merits.
31 The Commission submits in essence that, in so far as the first plea is not seeking to have its competence assessed but rather the substantive lawfulness of the contested regulation, it does not meet the requirements laid down in Article 44(1)(c) of the Rules of Procedure of 2 May 1991.
32 It must be borne in mind that, under the new version of that provision, as currently found in Article 76(d) of the General Court’s Rules of Procedure, the application must ‘contain … the subject-matter of the proceedings, the pleas in law and arguments … and a summary of those pleas in law’.
33 It is clear in the present case that the application satisfies the requirements of Article 76(d) of the Rules of Procedure, new version.
34 It cannot seriously be questioned that the applicant stated unambiguously the subject-matter of the proceedings in paragraph 2 of the application and set out, at least in summary form, the pleas in law being relied on in support of the action (paragraphs 66 to 102 of the application), including the first plea alleging lack of competence on the part of the Commission (paragraphs 66 to 84 of the application), irrespective of whether the arguments put forward in support of that plea as set out in the application are effective, as the issue of effectiveness of an argument — where it arises — has no bearing on the admissibility of a plea in support of which it is put forward.
35 Therefore, as it alleges a lack of competence on the part of the Commission, the first plea in law put forward in support of the action is admissible in the light of the requirements laid down in Article 76(d) of the Rules of Procedure, new version.
First plea in law — merits
36 It should be observed at the outset that it is clear from the applicant’s written pleadings before the Court that, by its first plea, the applicant is not alleging a lack of competence per se on the part of the Commission to adopt the Delegated Regulation, but is rather in essence challenging the exercise of that competence.
37 The Court thus considers that, by its first plea, the applicant is alleging a manifest error of assessment on the part of the Commission in adopting the contested regulation.
– Preliminary considerations concerning the extent of the judicial review and the objectives of Directive 2010/30
38 Firstly, as an initial point, it must be remembered that the European Union Courts have held that, in the exercise of the powers conferred on them, the authorities of the European Union have broad discretion where their action involves political, economic and social choices and where they are called on to undertake complex assessments and evaluations. However, even where they have such a discretion, the authorities of the European Union are obliged to base their choice on objective criteria appropriate to the aim pursued by the legislation in question, taking into account all the facts and the technical and scientific data available at the time of adoption of the act in question (see judgment of 16 December 2008 in Arcelor Atlantique et Lorraine and Others, C‑127/07, ECR, EU:C:2008:728, paragraphs 57 and 58 and the case-law cited).
39 According to settled case-law, where the European Union authorities have a broad discretion, in particular as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures which they adopt, review by the European Union judicature is limited to verifying whether there has been a manifest error of assessment or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion (judgment of 21 July 2011 in Etimine, C‑15/10, ECR, EU:C:2011:504, paragraph 60).
40 Secondly, as regards the objectives of Directive 2010/30, first of all, it must be observed that it is clear from recitals 4 and 5 in the preamble thereto that it aims at ‘[i]mproving the efficiency of energy-related products through informed consumer choice’, ensuring the ‘provision of accurate, relevant and comparable information on the specific energy consumption of energy-related products [which] 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’ and ‘also, indirectly, [encouraging] the efficient use of these products’ so that that information will ‘contribute to the EU’s 20% energy efficiency target’.
41 Next, it is clear from recital 13 in the preamble to Directive 2010/30 that ‘[e]nergy-related products have a direct or indirect impact on the consumption of a wide variety of forms of energy during use, electricity and gas being the most important’, with the result that Directive 2010/30 ‘should … cover energy-related products having a direct or indirect impact on the consumption of any form of energy during use’.
42 Lastly, recital 14 in the preamble to Directive 2010/30 states that ‘[e]nergy-related products which have a significant direct or indirect impact on consumption of energy or, where relevant, of essential resources during use and which afford adequate scope for increased efficiency should be covered by a delegated act, when provision of information through labelling may stimulate end-users to purchase more efficient products’.
43 It is in the light of those considerations that the merits of the first plea must be assessed, since it alleges, in essence, manifest errors of assessment.
– The first part of the first plea
44 Under the first part of the first plea, the applicant submits that the application of the contested regulation, which requires tests conducted with an empty dust bag, will lead to: (i) reporting of inaccurate information; (ii) ‘during use’ information not being integrated into the energy performance data; (iii) less incentive for manufacturers to invest with a view to improving the energy efficiency of vacuum cleaners; and (iv) labelling which does not serve to attain the objective of reducing energy consumption and, on the contrary, leads to an increase in energy consumption.
45 The applicant begins by criticising the Commission, in essence, for misleading consumers as to the energy consumption of vacuum cleaners inasmuch as the cleaning performance is measured only through tests conducted with an empty receptacle.
46 It is true that the vacuuming performance of a vacuum cleaner with a dust-loaded receptacle and, therefore, the resulting energy efficiency may be reduced due to dust accumulation.
47 However, the Commission cannot be criticised for having failed to require tests conducted with a dust-loaded receptacle if, under its broad discretion, it decided that such tests were not yet reliable, accurate and reproducible.
48 Moreover, and irrespective of whether the Commission has broad discretion for developing tests, it must be observed that, with respect to the question whether the tests conducted with a dust-loaded receptacle are reproducible, the Commission notes the absence of so-called ‘circular’ tests between laboratories which can be used to determine whether they are reproducible.
49 Thus, even though the applicant puts forward numerous arguments in an attempt to show the reliability and accuracy of the test conducted with a dust-loaded receptacle, there remain doubts as to whether that test is reproducible.
50 Indeed, as rightly observed by the Commission, the determination of whether the tests are reproducible in practice calls for ‘circular’ tests between laboratories, which are aimed at ensuring that the results obtained through repeated testing in different laboratories using the same sample have been properly obtained.
51 Yet the applicant refers to a single laboratory test which, in its submission, makes it possible to establish that it is reproducible. Consequently, the possibility of reproducing a test conducted with a dust-loaded receptacle has not been made out sufficiently to make out proof of a manifest error of assessment on the part of the Commission.
52 Moreover, and contrary to the applicant’s assertions, ‘circular’ tests between laboratories were carried out with an empty receptacle, as evidenced by an impact study carried out by the Commission prior to the adoption of the contested regulation. As a result, it has been proven that they are capable of being reproduced.
53 Accordingly, it cannot be held, in the context of a limited review, that the Commission made a manifest error of assessment by favouring a test conducted with an empty receptacle over a test conducted with a dust-loaded receptacle.
54 Therefore, the applicant’s complaint, alleging, in essence, manifest errors of assessment with respect to the obligation to conduct tests with an empty dust bag, must be rejected.
55 In the second place, the applicant criticises the Commission, in essence, for having failed to require information on the vacuum cleaners’ energy performance during use, given that the tests conducted with an empty receptacle did not demonstrate energy performance in realistic conditions of use.
56 Although it must be remembered that, as stated in recitals 2, 5, 13, 14 and 19 in the preamble to Directive 2010/30, Article 1 thereof provides for end-user information on the consumption of energy and, where relevant, of other essential resources ‘during use’ whilst Article 1(2) provides that Directive 2010/30 applies to energy-related products which have a significant direct or indirect impact on the consumption of energy and, where relevant, on other essential resources ‘during use’ (see also Article 2(a), (c), (e) and (f), Article 3(1)(b) and Article 4(a) of Directive 2010/30).
57 Similarly, the third subparagraph of Article 10(1) of Directive 2010/30 refers to provisions in delegated acts regarding information provided on the label and in the fiche on the consumption of energy and other essential resources ‘during use’.
58 Obviously, although the measures for testing the energy performance of vacuum cleaners are carried out on the basis of tests conducted with an empty receptacle, the possibility cannot be ruled out that the vacuum cleaner may have been used before the test was implemented.
59 The fact remains that the applicant’s line of argument in this respect is based on an excessively broad interpretation of the term ‘during use’, as it is difficult to conceive of testing a vacuum cleaner’s cleaning performance without using it, even for the first time.
60 Accordingly, the applicant’s complaint, alleging, in essence, a manifest error of assessment consisting in the absence of information about the vacuum cleaner’s performance ‘during use’, must be rejected.
61 In the third place, the applicant submits, in essence, that the contested regulation is unlawful because it does not give vacuum cleaner manufacturers any incentive to make better design choices that aim at achieving improved energy efficiency.
62 It must be remembered in that regard that Article 7 of the contested regulation provides that the Commission is to review that regulation in the light of technological progress no later than five years after its entry into force, and that the review must in particular assess whether it is feasible to use measurement methods based on a partly loaded rather than an empty receptacle.
63 Thus, in order to reject this complaint, it need only be borne in mind that, contrary to the applicant’s assertions, Article 7 of the contested regulation requires manufacturers of bagged vacuum cleaners to take into account future possible technological progress.
64 It cannot, therefore, be argued that the contested regulation will not give vacuum cleaner manufacturers incentive to make better design choices that aim at achieving improved energy efficiency.
65 Thus, the applicant’s complaint, alleging, in essence, a manifest error of assessment consisting in the absence of incentive for vacuum cleaner manufacturers to make better design choices that aim at achieving improved energy efficiency, must also be rejected.
66 In the fourth and last place, the applicant criticises the Commission, in essence, for having laid down, in the contested regulation, obligations to provide information which do not serve to attain the objective of reducing energy consumption and, on the contrary, may lead to an increase in energy consumption.
67 In order to reject this complaint, it need only be observed that it is based on extremely speculative data which do not vitiate the contested regulation due to a manifest error of assessment.
68 Consequently, the applicant’s complaint, alleging, in essence, a manifest error of assessment of obligations to provide information which will not serve to attain the objective of reducing energy consumption, must similarly be rejected.
69 Therefore, the first part of the first plea must be rejected, inasmuch as it alleges, in essence, manifest errors of assessment.
70 Consequently, the first part of the first plea must be rejected.
– The second part of the first plea
71 In the second part of the first plea, the applicant criticises the Commission for having failed to impose obligations to provide information about the use of consumables, when it was required to do so under Article 10(1) of Directive 2010/30.
72 In the second part of the first plea, the applicant submits, in essence, that the Commission made a manifest error of assessment in failing to impose any obligation to provide information about the use of consumables, namely dust bags and filters, whereas the Commission does have an obligation to establish the framework for the information provided to consumers on the essential resources consumed during use of the appliance and, moreover, dust bags and filters are essential resources consumed during use.
73 It must be borne in mind in that regard that Article 1(2) of Directive 2010/30 states that it applies ‘to energy-related products which have a significant direct or indirect impact on the consumption of energy and, where relevant, on other essential resources during use’.
74 The fact remains, however, that under Article 2(c) of Directive 2010/30, the ‘other essential resources’ within the meaning of that directive are defined as ‘water, chemicals or any other substance consumed by a product in normal use’.
75 It cannot seriously be argued that the consumables in question, namely dust bags and filters, must be held to be water, chemicals or a substance within the meaning of Article 2(c) of Directive 2010/30.
76 Thus, the applicant’s complaint alleging, in essence, a manifest error of assessment in the form of a lack of information about consumables, must be rejected.
77 Consequently, the second part of the first plea must be rejected, as must the first plea in its entirety.
Third plea in law: infringement of the principle of equal treatment
78 As part of the third plea of the application, the applicant claims that the Commission infringed the principle of equal treatment.
79 In the applicant’s submission, the Commission infringed the principle of equal treatment by discriminating in favour of bagged vacuum cleaners to the disadvantage of bagless vacuum cleaners or vacuum cleaners based on ‘cyclonic’ technology, as loss of suction due to clogging — a feature particularly of bagged vacuum cleaners — cannot be detected by pristine state testing. Nor do those tests show the innovations achieved by manufacturers of bagless vacuum cleaners and vacuum cleaners based on ‘cyclonic’ technology — some of which are capable of avoiding clogging and maintaining consistent suction during use.
80 In order to measure the cleaning performance of the vacuum cleaners, in the contested regulation the Commission provided for a single ‘empty dust bag’ test for both vacuum cleaners based on ‘cyclonic’ technology and bagged vacuum cleaners, thus disregarding the fact that, unlike vacuum cleaners based on ‘cyclonic’ technology, bagged vacuum cleaners cannot be ‘empty dust bag’ tested because they are predestined to fill up with dust as they are being used.
81 Thus, whilst vacuum cleaners based on ‘cyclonic’ technology are especially designed to mitigate the decline in energy performance due to dust accumulation, the energy performance of bagged vacuum cleaners declines because of the obstruction of the pores of the dust bag through dust accumulation, a difference which is not taken into account in the ‘empty dust bag’ test required by the contested regulation.
82 It follows that the contested regulation favours bagged vacuum cleaners, to the detriment of vacuum cleaners based on ‘cyclonic’ technology.
83 The Commission states that the contested regulation does not require testing of vacuum cleaners with an empty receptacle; it simply requires the use of reliable, accurate and reproducible measurement and calculation methods, which take into account recognised state-of-the-art measurement and calculation methods, whereas such methods do not yet exist for receptacles filled with dust.
84 The Commission takes the view that it did not have to wait to adopt a regulation on energy labelling of vacuum cleaners; if that were the case it would likely never be able to adopt regulatory provisions in the field, as there would always be manufacturers alleging that their technological innovations had not been duly taken into account by the existing testing methods and that they were therefore placed at a disadvantage by the use of those types of testing.
85 By its third plea in law, the applicant submits, in essence, that the contested regulation infringes the principle of equal treatment by treating different situations in the same way in terms of the measurement method used to assess the cleaning performance of the vacuum cleaners.
86 Thus, the assessment of the merits of the third plea entails resolving the question whether the application of a uniform method — whatever the detailed rules of application may be — to measure the cleaning performance of vacuum cleaners ‘with dust bag’, ‘bagless’ and based on ‘cyclonic’ technology, provided for by the contested regulation, infringes the principle of equal treatment.
87 By way of preliminary observation, the contested regulation constitutes a delegated act under Directive 2010/30, which, in Article 1, provides for a framework for the harmonisation of national measures on end-user information, particularly by means of labelling and standard product information, on the consumption of energy and where relevant of other essential resources during use, and supplementary information concerning energy-related products, thereby allowing end-users to choose more efficient products.
88 To that end, Article 10(1) of Directive 2010/30 provides that the Commission is to lay down details relating to the label and the fiche by means of delegated acts. The third subparagraph of Article 10(1) provides that provisions in delegated acts regarding information provided on the label and in the fiche on the consumption of energy and other essential resources during use are to enable end-users to make better informed purchasing decisions.
89 Article 10(4)(b) of Directive 2010/30 further provides that the delegated acts are to specify the measurement standards and methods to be used in obtaining the information referred to in Article 1(1) thereof.
90 Thus, the contested regulation, as a delegated act, provides in Article 5 that the information to be provided is to be obtained by reliable, accurate and reproducible measurement and calculation methods, which take into account the recognised state-of-the-art measurement and calculation methods, as set out in Annex VI thereto.
91 It is common ground in this case that the methods are uniform and do not draw any distinctions according to the type of vacuum cleaner, in particular whether it is a bagged vacuum cleaner or a bagless vacuum cleaner.
92 Consequently, it must be ascertained whether the Commission, in the contested regulation, infringed the principle of equal treatment by imposing a single test for assessing the cleaning performance of bagless vacuum cleaners, such as those manufactured by the applicant, and bagged vacuum cleaners.
93 It should be borne in mind in that regard that the Commission is required to comply with general principles of law, including the principle of equal treatment, as interpreted by the European Union judicature and that, under the principle of equal treatment, the Commission cannot treat comparable situations differently and different situations in the same way, unless such treatment is objectively justified (judgments of 29 March 2012 in Commission v Estonia, C‑505/09 P, ECR, EU:C:2012:179, paragraph 64; 19 November 2009 in Denka International v Commission, T‑334/07, ECR, EU:T:2009:453, paragraph 169; and 7 March 2013 in Poland v Commission, T‑370/11, ECR, EU:T:2013:113, paragraph 30).
94 The same requirements apply to the Commission when it acts pursuant to a delegated act exercising a power conferred on it by a directive, as in the present case.
95 In the present case, it should be noted, first of all, that the Commission does not dispute the use of a uniform measurement method to test the energy performance of vacuum cleaners, be they bagged vacuum cleaners or bagless vacuum cleaners.
96 In the second place, it is also clear that nor does the Commission dispute the technological differences which separate bagged vacuum cleaners from bagless vacuum cleaners.
97 The Commission does not dispute that bagless vacuum cleaners are vacuum cleaners based on ‘cyclonic’ technology, which is a mechanical technique for separating particles suspended in fluid that can be used to separate dust particles from air using centrifugal force (driving bodies away from the centre of rotation), with the dust particles then being collected in a rigid receptacle, making both the central filter and the dust bag no longer necessary, because the air swirls so fast that the dust is continuously expelled from the air flow.
98 Nor does it dispute that, for bagged vacuum cleaners, the dust is deposited in a dust bag, with the result that the pores of the dust bag become clogged as the dust bag fills up and that, therefore, the vacuum cleaner’s suction power declines due to weaker air circulation levels.
99 Similarly, the Commission specifically acknowledges that ‘the dust load may affect efficiency’.
100 The Commission also acknowledges that there are objective differences between bagless vacuum cleaners and bagged vacuum cleaners.
101 In the third place, the fact remains that the Commission disputes the methodology on which the various results submitted by the applicant are based, confirming the loss of suction of bagged vacuum cleaners, arguing that that methodology is not reliable, accurate or reproducible.
102 In the Commission’s submission, the test required under the contested regulation is the only test capable of demonstrating the vacuum cleaners’ cleaning performance; the tests advocated by the applicant are not reliable, accurate or reproducible, given the technical and scientific data available at the time of adoption of the contested regulation, so that there are valid grounds for uniform treatment of bagless vacuum cleaners and bagged vacuum cleaners.
103 According to the case-law, treating different situations in the same way is justified when based on an objective and appropriate criterion (see, to that effect, judgment in Arcelor Atlantique et Lorraine and Others, cited in paragraph 38 above, EU:C:2008:728, paragraph 47).
104 It must therefore be ascertained whether the justifications put forward by the Commission are objective and appropriate having regard to the objectives pursued by Directive 2010/30.
105 In the present case, the applicant reiterates that tests conducted with a dust-loaded receptacle are possible to monitor the vacuum cleaners’ cleaning performance, adding that a standard of the European Committee for Electrotechnical Standardisation (Cenelec) already provides for a complete and tested method to test cleaning performance with a dust-loaded receptacle and that national consumers’ associations and testing bodies all use one form or another of test conducted with a dust-loaded receptacle.
106 Without expressing a view in the second plea on the tests conducted with a dust-loaded receptacle, the Commission disputes such tests and refers to Article 7 of the contested regulation, under which future review of that regulation is to take account of the feasibility of introducing reliable, accurate and reproducible measurement methods based on a dust-loaded rather than an empty receptacle.
107 It must be borne in mind that the European Union courts have held that, in the exercise of the powers conferred on them, the authorities of the European Union have broad discretion where their action involves political, economic and social choices and where they are called on to undertake complex assessments and evaluations. However, even where they have such a discretion, the authorities of the European Union are obliged to base their choice on objective criteria appropriate to the aim pursued by the legislation in question, taking into account all the facts and the technical and scientific data available at the time of adoption of the act in question (see judgment in Arcelor Atlantique et Lorraine and Others, cited in paragraph 38 above, EU:C:2008:728, paragraphs 57 and 58 and the case-law cited).
108 In the present case, the Commission, in exercising its discretion for the purpose of adopting the contested regulation, was bound to base its choice as to the methods used to measure energy efficiency on objective criteria, in accordance with the objectives pursued by Directive 2010/30, namely providing reliable, standard information to consumers, thereby enabling them to choose more efficient products.
109 As observed in paragraphs 70 to 75 of this judgment, the tests conducted with a partly loaded receptacle were not in turn tested through ‘circular’ tests between laboratories, so that their reproducibility could be questioned.
110 Accordingly, the fact that the tests advocated by the applicant do not simultaneously fulfil the criteria for reliability, accuracy and reproducibility constitutes an objective reason justifying uniform treatment of vacuum cleaners using different technologies, namely bagged vacuum cleaners and bagless vacuum cleaners.
111 The third plea in law must therefore be rejected.
Second plea in law: lack of statement of reasons
112 By the second plea of the application, the applicant claims that the Commission infringed its obligation to state reasons under Article 296 TFEU.
113 According to the applicant, the contested regulation fails to provide adequate, or indeed any, reasons why there was insufficient ‘technological progress’ to facilitate the testing of the energy efficiency and the cleaning performance of the vacuum cleaner when the receptacle is filled with dust or why the Commission, in Article 7 of the contested regulation, put the examination of this technique back to five years.
114 There is nothing in the contested regulation, the statement of reasons for the proposal or the travaux préparatoires providing sufficient explanation on this point.
115 Moreover, the Commission’s assessment concerning the tests conducted with a dust-loaded receptacle is difficult to understand, given the general context and origins of the contested regulation, with the applicant reiterating that it is common practice throughout the European Union to test vacuum cleaners’ cleaning performance with a dust-loaded receptacle, as that practice is considered to reflect the appliance’s performance in actual conditions of use, as evidenced by a standard from Cenelec and all the tests conducted by national consumers’ associations and testing bodies, and as observed by the interested parties, including the applicant, during the consultation process which preceded the adoption of the contested regulation.
116 The Commission states that the second plea of the application confirms the applicant’s misunderstanding of the contested regulation; that regulation does not prevent testing on a ‘dust-loaded’ receptacle, it simply requires the use of ‘reliable, accurate and reproducible measurement and calculations methods, which take into account the recognised state-of-the-art measurement and calculation methods’, whereas no ‘reliable, accurate and reproducible measurement and calculation methods’ exist for testing on a ‘dust-loaded’ receptacle, with the result that the Commission was not required to state its reasons for not imposing the obligation to conduct tests with a ‘dust-loaded’ receptacle.
117 It must be remembered that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Union Court to exercise its power of review (see judgment of 24 November 2005 in Italy v Commission, C‑138/03, C‑324/03 and C‑431/03, ECR, EU:C:2005:714, paragraph 54 and the case-law cited).
118 That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment in Italy v Commission, cited in paragraph 117 above, EU:C:2005:714, paragraph 55 and the case-law cited).
119 It is in the light of those considerations that it must be determined whether the statement of reasons for the contested regulation is sufficient with respect to the choice of measurement methods made therein.
120 It should be observed that the essential relevant points of the statement of reasons for the contested regulation are found in Article 7 of the contested regulation, entitled ‘Revision’, which provides:
‘The Commission shall review this Regulation in light of technological progress no later than five years after its entry into force. The review shall in particular assess … whether it is feasible to use measurement methods for annual energy consumption, dust pick-up and dust re-emission that are based on a partly loaded rather than an empty receptacle.’
121 It does follow that Article 7 of the contested regulation does not explain expressly and in detail the specific grounds which led the Commission to opt for the measurement methods chosen.
122 However, the fact remains that, in the case of a measure intended to have general application, as in the present case, the preamble may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other (judgments of 3 July 1985 in Abrias and Others v Commission, 3/83, ECR, EU:C:1985:284, paragraph 30, and of 10 March 2005 in Spain v Council, C‑342/03, ECR, EU:C:2005:151, paragraph 55).
123 Moreover, the Court has repeatedly held that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see judgment of 7 September 2006 in Spain v Council, C‑310/04, ECR, EU:C:2006:521, paragraph 59 and the case-law cited).
124 The objective pursued by the Commission in the contested regulation is apparent from recital 4 in the preamble thereto: ‘[t]he information provided on the label should be obtained through reliable, accurate and reproducible measurement procedures, which take into account the recognised state-of-the-art measurement methods including, where available, harmonised standards adopted by the European standardisation organisations’.
125 To that end, Article 5 of the contested regulation, entitled ‘Measurement methods’, provides that ‘[t]he information to be provided … shall be obtained by reliable, accurate and reproducible measurement and calculations methods, which take into account the recognised state-of-the-art measurement and calculation methods, as set out in Annex VI’.
126 Point 1 of Annex VI to the contested regulation reproduces the substance of Article 5, in stating that ‘ [f]or the purposes of compliance and verification of compliance with the requirements of this Regulation, measurements and calculations shall be made using reliable, accurate and reproducible methods that take into account the generally recognised state-of-the-art measurement and calculation methods, including harmonised standards the reference numbers of which have been published for the purpose in the Official Journal of the European Union’ and that ‘[t]hey shall meet the technical definitions, conditions, equations and parameters set out this Annex’.
127 The Commission therefore did provide a sufficient statement of reasons for the contested regulation in terms of its decisions on the measurement methods chosen therein.
128 It could be construed from Article 7, read in conjunction with Article 5, recital 4 in the preamble thereto and point 1 of Annex VI to the contested regulation, that the Commission chose measurement methods based on tests conducted with an empty dust bag rather than tests conducted with a dust-loaded receptacle due to the inexistence, having regard to the state of technological knowledge, in the view of the Commission, of reliable, accurate and reproducible measurement methods, which take into account the recognised state-of-the-art measurement methods to obtain measurements based on tests conducted with a dust-loaded receptacle, without however expressly requiring one test rather than another.
129 For the same reasons, the Commission was not required to explain in greater detail why, due to the state of technological progress, it chose, in Article 7 of the contested regulation, to put back to five years the review of the tests of vacuum cleaners’ energy efficiency and cleaning performance with a dust-loaded receptacle.
130 As, moreover, evidenced by the examination of the first and third pleas in law put forward in support of the action, the statement of reasons for the contested regulation thus enabled the applicant to know the Commission’s reasoning, so that it could ascertain the reasons for the measure and the General Court could exercise its power of review.
131 That assessment is not affected by the applicant’s argument concerning the travaux préparatoires, be it in respect of the observations from the interested parties, including the applicant, during the consultation process or the summary of the grounds for the proposal which led to the adoption of the contested regulation.
132 It is sufficient, in order to reject that line of argument, to observe that it is not directed against the contested act but rather against the acts which preceded its adoption, with the result that those acts cannot be taken into consideration for the purpose of assessing, in the present case, the objective lawfulness of the contested regulation.
133 Nor can the applicant successfully rely on a standard from Cenelec and uniform test practices — even if they were to be established — of consumers’ associations or testing bodies.
134 Those considerations go to the lawfulness of the contested regulation as to its merits and not to its objective lawfulness, with the result that they cannot support the second plea in law put forward in the action, alleging a failure to provide a statement of reasons.
135 Consequently, the second plea in law must be rejected, as must therefore the action in its entirety.
Costs
136 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission in accordance with the latter’s pleadings.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Dyson Ltd to pay the costs.
Delivered in open court in Luxembourg on 11 November 2015.
[Signatures]