Judgment of the Court (First Chamber) of 15 October 2026.#Verband Wirtschaft im Wettbewerb, Verein für Lauterkeit in Handel und Industrie e.V. v PAYBACK GmbH.#Request for a preliminary ruling from the Bundesgerichtshof.#Reference for a preliminary ruling – Energy – Energy labelling – Regulation (EU) 2017/1369 – Article 2(13) – Concept of ‘dealer’ – Concepts of ‘display’ and ‘commercial activity’ – Article 2(16) – Concept of ‘customer’ – Point (a) of the first paragraph of Article 6 – Obligation to make reference to the energy efficiency class of a product and the range of efficiency classes available on the label in visual advertisements – Concept of ‘visual advertisements’ – Online prize draw – Organiser of an online prize draw promising a television as a prize to be won – Delegated Regulation (EU) 2019/2013 – Article 4(d).#Case C-120/25.

Provisional text

JUDGMENT OF THE COURT (First Chamber)

15 October 2026 (*)

( Reference for a preliminary ruling – Energy – Energy labelling – Regulation (EU) 2017/1369 – Article 2(13) – Concept of ‘dealer’ – Concepts of ‘display’ and ‘commercial activity’ – Article 2(16) – Concept of ‘customer’ – Point (a) of the first paragraph of Article 6 – Obligation to make reference to the energy efficiency class of a product and the range of efficiency classes available on the label in visual advertisements – Concept of ‘visual advertisements’ – Online prize draw – Organiser of an online prize draw promising a television as a prize to be won – Delegated Regulation (EU) 2019/2013 – Article 4(d) )

In Case C‑120/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 23 January 2025, received at the Court on 5 February 2025, in the proceedings

Verband Wirtschaft im Wettbewerb, Verein für Lauterkeit in Handel und Industrie eV

v

PAYBACK GmbH,

THE COURT (First Chamber),

composed of F. Biltgen, President of the Chamber, S. Gervasoni, A. Kumin, I. Ziemele, and M. Bošnjak (Rapporteur), Judges,

Advocate General: T. Ćapeta,

Registrar: V. Di Bucci,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Verband Wirtschaft im Wettbewerb, Verein für Lauterkeit in Handel und Industrie eV, by A. Stocks, Rechtsanwältin,

–        PAYBACK GmbH, by T. Schafft, Rechtsanwalt,

–        the European Commission, by T.S. Bohr and B. De Meester, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 February 2026,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 2(13) and 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) and of Article 4 (d) of 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).

2        The request has been made in proceedings between Verband Wirtschaft im Wettbewerb, Verein für Lauterkeit in Handel und Industrie eV (‘the Verband Wirtschaft im Wettbewerb’), and PAYBACK GmbH (‘Payback’), a company operating a multi-partner loyalty programme, concerning a request that the latter be ordered to cease promoting a prize draw by means of an online information letter, in which neither the energy efficiency class of a television promised as a prize to be won in that prize draw nor the range of energy efficiency classes corresponding to that type of products, such as those available on the energy efficiency label of that television, is indicated.

 Legal context

 European Union law

 Regulation 2017/1369

3        Recitals 2, 8, 10, 20 and 21 of Regulation 2017/1369 set out:

‘(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.

…

(8)      Improving the efficiency of energy-related products through informed customer choice benefits the Union economy, reduces energy demand and saves customers money on energy bills, contributes to innovation and investment in energy efficiency, and enables industries which develop and produce the most energy efficient products to gain a competitive advantage. It also contributes to the achievement of the Union’s 2020 and 2030 energy-efficiency targets, as well as to the Union’s goals for the environment and climate change. Furthermore, it aims to have a positive impact on the environmental performance of the energy-related products and their parts, including use of resources other than energy.

…

(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. …

…

(20)      When a label for a product group is rescaled, confusion on the part of customers should be avoided by replacing the labels on the affected products displayed in shops within a short timeframe, and by organising adequate consumer information campaigns clearly indicating that a new version of the label has been introduced.

(21)      In the case of a rescaled label, suppliers should provide both the existing and the rescaled labels to dealers for a certain period. The replacement of the existing labels on products on display, including on the internet, with the rescaled labels should take place as quickly as possible after the date of replacement specified in the delegated act on the rescaled label. …’

4        Article 1 of that regulation, entitled ‘Subject matter and scope’ provides, in paragraph 1:

‘This Regulation lays down a framework that applies to energy-related products (“products”) placed on the market or put into service. It provides for the labelling of those products and the provision of standard product information regarding energy efficiency, the consumption of energy and of other resources by products during use and supplementary information concerning products, thereby enabling customers to choose more efficient products in order to reduce their energy consumption.’

5        Article 2 of that regulation, entitled ‘Definitions’, provides in points 13 and 16 thereof:

‘For the purposes of this Regulation[,] the following definitions apply:

…

(13)      “dealer” means a retailer or other natural or legal person who offers for sale, hire, or hire purchase, or displays products to customers or installers in the course of a commercial activity, whether or not in return for payment;

…

(16)      “customer” means a natural or legal person who buys, hires or receives a product for own use whether or not acting for purposes which are outside its trade, business, craft or profession.’

6        Article 5 of that regulation, entitled ‘Obligations of dealers’, provides, in paragraph 1(a) thereof:

‘(1)      The dealer shall:

(a)      display, in a visible manner, including for online distance selling, the label provided by the supplier or made available …’

7        Article 6 of Regulation 2017/1369, entitled ‘Other obligations of suppliers and dealers’, provides, in point (a) of the first paragraph thereof:

‘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’.

8        Article 11 of Regulation 2017/1369, entitled ‘Procedure for the introduction and rescaling of labels’, provides, in paragraphs 4 and 13 thereof:

‘(4)      In order to ensure a homogenous A to G scale, the [European] Commission shall adopt, …delegated acts pursuant to Article 16 of this Regulation in order to supplement this Regulation … by introducing … rescaled labels …, with the aim of displaying the rescaled label both in shops and online, 18 months after the date of entry into force of the delegated acts adopted pursuant to this Regulation.

…

(13)      Where, pursuant to paragraph 1 or 3, a label is rescaled:

…

(c)      the dealer shall replace the existing labels on products on display, both in shops and online …’

9        Article 16 of that directive, which is headed ‘Delegated Acts’, provides in paragraph (3)(b):

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

…

(b)      the design and content of the label, including a scale showing consumption of energy consisting of A to G, which as far as possible shall have uniform design characteristics across product groups and shall in all cases be clear and legible. The A to G steps of the classification shall correspond to significant energy and cost savings and appropriate product differentiation from the customer’s perspective. It shall also specify how the A to G steps of the classification, and where applicable energy consumption is displayed in a prominent position on the label’.

 Delegated Regulation 2019/2013

10      Under Article 2(20) of Delegated Regulation 2019/2013:

‘For the purpose of this Regulation[,] the following definitions shall apply:

…

(20)      “point of sale” means a location where electronic displays are displayed or offered for sale, hire or hire-purchase.’

11      Article 4 of that delegated regulation, entitled ‘Obligations of dealers’, provides, in point (d) thereof:

‘Dealers shall ensure that:

…

(d)      any visual advertisement for a specific model of electronic display, including on the internet, contains the energy efficiency class and the range of efficiency classes available on the label, in accordance with Annex VII’.

 Directive 2005/29/EC

12      Article 2 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), provides, in point (d):

‘For the purposes of this Directive:

…

(d)      “business-to-consumer commercial practices” …means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers.’

13      Article 7 of the that directive, entitled ‘Misleading omissions’, provides, in paragraphs 1 and 5:

‘1.      A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

…

5.      Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.’

 Directive 2010/30/EU

14      Recital 14 in the preamble to 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) states:

‘Energy-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.’

15      Article 2 of that directive, entitled ‘Definitions’, provides, in point (g) thereof:

‘For the purpose of this Directive:

…

(g)      “dealer” means a retailer or other person who sells, hires, offers for hire-purchase or displays products to end-users’.

16      Article 10 of that directive, which is headed ‘Delegated acts’, provides in the third subparagraph of paragraph 1:

‘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.’

 German law

17      Paragraph 5a(2) and (4) of the Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition) of 3 July 2004 (BGBl. 2004 I, p. 1414), in the version in force until 27 May 2022, and Paragraphs 5a and 5b of that law, as amended by the Gesetz zur Stärkung des Verbraucherschutzes im Wettbewerbs- und Gewerberecht (Law on the strengthening of consumer protection in competition and commercial law) of 10 August 2021 (BGBl. 2021 I, p. 3504), which entered into force on 28 May 2022, lay down the conditions for an act of unfair competition.

18      The first sentence of Paragraph 5a(2) of the Law against unfair competition, in the version in force until 27 May 2022, and Paragraph 5a(1) of that law, in the version in force from 28 May 2022, seek to transpose Article 7(1) of Directive 2005/29 into German law.

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

19      Payback is a company which manages the multi-partner bonus points programme, called ‘PAYBACK’. That programme makes it possible to retain and attract customers from the trading partners participating in it. When users of the scheme make purchases from a participating commercial partner, the latter may grant a discount on those purchases in the form of ‘PAYBACK points’, which can be used to make payments to those trading partners once a certain points threshold has been reached.

20      The Verband Wirtschaft im Wettbewerb is an association to protect competition. Under the Law against unfair competition, it is empowered to act in order to stop unfair competition practices.

21      On 1 February 2022, Payback promoted, in its online information letter, a prize draw, including the statement: ‘a new prize to be won every day, such as 2 x Samsung QLED 4K TV Q80A, 75-inch’. That statement was accompanied by an image of the television concerned and by a table setting out the prizes to be won.

22      It is apparent from the request for a preliminary ruling that neither the energy efficiency class of the television at issue in the main proceedings nor the range of energy efficiency classes for the corresponding product group were indicated in that online information letter, on the image of the television or in that table setting out the prizes to be won.

23      After the Verband Wirtschaft im Wettbewerb had unsuccessfully sent Payback a letter of formal notice asking it, in essence, to put an end to such practices, that association brought an action before the Landgericht München I (Regional Court, Munich I, Germany).

24      That court delivered a judgment in absentia, by which Payback was ordered, inter alia, to cease all visual advertisements for a specific model of electronic display without indicating the energy efficiency class or the corresponding range of energy efficiency classes on the energy label of that device such as are legally represented graphically in the form of an arrow.

25      Following an objection by Payback, that court upheld its default judgment.

26      Payback brought an appeal against that judgment before the Oberlandesgericht München (Higher Regional Court, Munich, Germany), which set aside that judgment and dismissed the action of the Verband Wirtschaft im Wettbewerb as being unfounded.

27      That court found that the information requirements at issue relate to commercial communications within the meaning of the Law against unfair competition. According to that court, Payback is not a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369, and was therefore not required to comply with the obligations arising out of point (a) of the first subparagraph of Article 6 of that regulation, read in conjunction with Article 4(d) of Delegated Regulation 2019/2013. In that regard, that court took the view that a prize draw was not used to offer or display the goods at stake. Besides, the concept of ‘whether or not in return for payment’ referred to in the definition of ‘dealer’ is not intended to extend the class of dealers beyond persons who offer for sale, hire, or hire purchase, or display products to customers or installers. Lastly, it took the view that, by participating in the prize draw, customers did not choose a product, but solely decided to take part in the prize draw.

28      The Verband Wirtschaft im Wettbewerb brought an appeal on a point of law (Revision) before the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court, against the judgment of the Oberlandesgericht München (Higher Regional Court, Munich), seeking to have that judgment set aside and to have the judgment of the Landgericht München I (Regional Court, Munich I) upheld. The Verband Wirtschaft im Wettbewerb submits, in essence, that the concepts of ‘sale’, ‘hire’ and ‘hire-purchase’ in Article 2(13) of Regulation 2017/1369 should be interpreted broadly. Thus, any economic activity is sufficient for a retailer or another natural or legal person to be regarded as being a dealer within the meaning of that provision.

29      According to the Verband Wirtschaft im Wettbewerb, it follows from the clear wording of Article 2(13) of Regulation 2017/1369 that that provision also covers contracts entered into without consideration and sales entered into not in return for payment, namely gifts, such as the one at issue in the present case. The fact that in the German-language version of that provision, the term ‘unentgeltlich’ (corresponding to ‘not in return for payment’ in the English-language version) relates not only to displaying products but also to all forms of activity, and thus also to purchase, is made clear, inter alia, by the English-language version of that provision, in which the part of the wording that refers to a possible absence of consideration (‘whether or not in return for payment’) appears at the end of the definition of ‘dealer’, separated by a comma.

30      The referring court is of the view that, in order to resolve the dispute before it, it is necessary to determine whether the organiser of a prize draw who promises prizes to be won must be regarded as a ‘dealer’, within the meaning of Article 2(13) of Regulation 2017/1369, and as such be subject to the obligations arising from point (a) of the first paragraph of Article 6 of that regulation, read in conjunction with Article 4(d) of Delegated Regulation 2019/2013.

31      In that regard, the referring court notes, in the first place, the concept of ‘unentgeltlich … zum Kauf … anbietet’ (‘sale … not in return for payment’) is not only unknown to German civil law but also to EU law. As regards the latter, the referring court points out that Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ 2019 L 136, p. 28) requires, in order for a contract to be regarded as a contract of sale, the payment of a price or an undertaking to pay the price.

32      In the second place, as regards the concept of ‘customer’, as defined in Article 2(16) of Regulation 2017/1369, the referring court acknowledges that the receipt of a product, within the meaning of that provision, does not involve any consideration. However, according to the referring court, it cannot be inferred from that absence of consideration that, as regards the concept of ‘sale’, within the meaning of Article 2(13) of that regulation, the EU legislature envisaged the possibility that no consideration would be paid.

33      In the third place, the referring court considers that the objectives pursued by Regulation 2017/1369, namely, first, to inform consumers about the energy efficiency of the appliances concerned during their use and about the energy consumption of energy-related products and, second, to enable consumers to make informed choices in favour of products that consume less energy, could support a broad interpretation of the concepts of ‘sale’, ‘hire’ and ‘hire-purchase’, within the meaning of that regulation.

34      In the fourth place, the referring court is of the view that the phrase ‘whether or not in return for payment’, contained in Article 2(13) of Regulation 2017/1369, could be interpreted as relating not to the sale, hire or hire-purchase referred to in that provision, but to the fact of ‘displaying’ or ‘offering’ a product. In such a case, it would be sufficient, in order for a person to act as a ‘dealer’, that he or she displays or offers a product, whether or not in return for payment, in order to carry out a sale, hire or hire-purchase. However, that is not the case here, since the television at issue in the main proceedings was not offered for sale, hire or hire-purchase.

35      In the fifth place, the referring court adds that it is conceivable that the circumstance of a person who ‘displays’ the product should be regarded as being distinct from the circumstance of a person who ‘offers’ that product for sale, hire or hire-purchase. If that is the case, those other elements of the definition of the concept of ‘dealer’, within the meaning of Article 2(13) of Regulation 2017/1369, would not apply to a person who ‘displays’ a product, within the meaning of that provision.

36      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is a person who offers a television as a prize in the context of an online prize draw to be regarded as a “dealer” within the meaning of Article 2(13) of Regulation [2017/1369], and therefore under an obligation to comply with the requirements arising from [point (a) of the first paragraph] of Article 6 of Regulation [2017/1369], read in conjunction with Article 4(d) of Delegated Regulation [2019/2013]?’

 Consideration of the question referred

37      By its single question, the referring court asks, in essence, whether Article 2(13) of Regulation 2017/1369 must be interpreted as meaning that a person who, in the course of his or her commercial activity, organises an online prize draw and promises a television as a prize to be won must be classified as a ‘dealer’ within the meaning of that provision, with the result that that person is required to comply with the requirements arising from point (a) of the first paragraph of Article 6 of that regulation and from Article 4(d) of Delegated Regulation 2019/2013.

38      It should be noted, as a preliminary point, that it is common ground that a television is an ‘energy-related product’ within the meaning of Regulation 2017/1369.

39      In accordance with the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider its wording, the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 91).

 Literal Interpretation

40      According to the wording of Article 2(13) of Regulation 2017/1369, the concept of ‘dealer’ means ‘a retailer or other natural or legal person who offers for sale, hire, or hire purchase, or displays products to customers or installers in the course of a commercial activity, whether or not in return for payment’.

41      In that regard, it should be noted that there is a difference in wording between the German-language version of that provision and several other language versions of it, such as, for example, the Greek-, English-, French-, Italian- and Slovenian-language versions of that provision.

42      Article 2(13) of Regulation 2017/1369, in the German-language version, is worded as follows: ‘“Händler” bezeichnet einen Einzelhändler oder eine andere natürliche oder juristische Person, die im Rahmen einer Geschäftstätigkeit entgeltlich oder unentgeltlich Produkte an bzw. für Kunden oder Errichter zum Kauf, zur Miete oder zum Ratenkauf anbietet oder ausstellt’. Consequently, in that linguistic version of that provision, both the offer of a product and the activity of displaying it appear to be linked to the purpose of its sale, hire or hire-purchase.

43      By contrast, other linguistic versions of that provision, such as the Greek-, English-, Italian- and Slovenian-language versions, appear to distinguish between the offer of a product and its display. According to the Greek-language version: (‘[νοείται ως] “έμπορος”: ο λιανοπωλητής ή κάθε άλλο φυσικό ή νομικό πρόσωπο που προσφέρει προς πώληση, μίσθωση ή μίσθωση-αγορά ή εκθέτει προϊόντα σε πελάτες ή εγκαταστάτες στο πλαίσιο εμπορικής δραστηριότητας, είτε επί πληρωμή είτε δωρεάν’), the English-language version (‘“dealer” means a retailer or other natural or legal person who offers for sale, hire, or hire purchase, or displays products to customers or installers in the course of a commercial activity, whether or not in return for payment’), the Italian-language version (‘[si intende per] “distributore”, il dettagliante o altra persona fisica o giuridica che offre in vendita, noleggio, oppure locazione-vendita o espone prodotti ai clienti o installatori nel corso di un’attività commerciale, a titolo oneroso o meno’) and the Slovenian-language version (‘“trgovec” pomeni prodajalca na drobno ali drugo fizično ali pravno osebo, ki izdelke strankam ponuja naprodaj, v najem ali v nakup s pridržanim lastništvom ali jih razstavlja, ali monterje, ki izvajajo gospodarsko dejavnost, bodisi odplačno ali neodplačno’) of that provision, the ‘dealer’ is a person who offers for sale, hire, hire purchase or displays products in the course of a commercial activity, whether or not in return for payment.

44      The French-language version of Article 2(13) of Regulation 2017/1369 is worded in a manner comparable to those language versions, since the dealer is defined as ‘un détaillant ou une autre personne physique ou morale qui vend, loue, offre en location-vente ou expose des produits à l’intention des clients ou des installateurs dans le cadre d’une activité commerciale, à titre onéreux ou gratuit’, without, however, the term ‘offre’ being directly linked to the sale or hire of the product.

45      Accordingly, it is apparent from the wording of the German-language version of Article 2(13) of Regulation 2017/1369 that the ‘display’ of goods leads to the classification of a person as a ‘dealer’ if that display is carried out in the course of a commercial activity and for the purposes of the sale, hire or hire-purchase of that product, those two conditions being cumulative, whereas it follows from the wording of the other language versions of that provision, referred to in paragraphs 43 and 44 of the present judgment, that the display of a product in the course of a commercial activity is sufficient for the purposes of that classification.

46      In contrast, it should be noted that the clarification ‘whether or not in return for payment’ in Article 2(13) of Regulation 2017/1369 refers, in all the language versions of that provision, to sale, hire, hire purchase as well as display.

47      Consequently, it cannot be ruled out, on reading the wording of Article 2(13) of Regulation 2017/1369, that the concept of ‘dealer’ within the meaning of that provision may be interpreted as meaning that it covers persons who display an energy-related product in the course of a commercial activity for reasons other than obtaining financial consideration.

48      Nevertheless, it must be borne in mind that, according to settled case-law, in particular where there is divergence between the various language versions of a provision of EU law, the latter must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgments of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 14, and of 4 September 2025, Hakamp, C‑203/24, EU:C:2025:662, paragraph 34).

49      The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation (judgment of 8 May 2025, Provincie Oost-Vlaanderen and Sogent, C‑236/24, EU:C:2025:321, paragraph 21 and the case-law cited).

 The purpose and origin of Regulation 2017/1369

50      As regards the objectives pursued by Regulation 2017/1369, it is apparent from Article 1 thereof that that regulation provides for the labelling of energy-related products to enable customers to choose more efficient products in order to reduce their energy consumption.

51      In addition, it follows from recitals 2 and 10 thereof that the objectives of Regulation 2017/1369 are, inter alia, to provide accurate, relevant and comparable information on the energy consumption of energy-related products, in order to enable customers to make informed choices and to facilitate their choice of products that consume less energy, as well as to promote innovation and investment in the production of more energy-efficient products.

52      It should be noted, as the Advocate General observed in points 64 and 76 of her Opinion, that customers attach considerable value to information on the energy performance of a product when they decide to purchase or use it, with the result that they may be deterred from accepting less efficient energy-related products which are therefore likely to entail higher operating costs. Furthermore, energy labelling requirements aim to reward the best-performing products through a mandatory rating, by offering an advantage to businesses that offer more-energy-efficient products.

53      To interpret the concept of ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 restrictively, by excluding persons who display an energy-related product in the course of a commercial activity for reasons other than obtaining financial consideration, would risk jeopardising the attainment of those objectives.

54      It should also be noted that the objectives referred to in paragraph 51 of the present judgment fall within the framework of broader objectives. Recital 8 of Regulation 2017/1369 states, in that regard, that improving the efficiency of energy-related products through the informed choice of customers contributes to the achievement of the European Union’s energy efficiency objectives for the years 2020 and 2030 and the environmental and climate change objectives of the European Union. In addition, it is intended to have a positive effect on the environmental performance of energy-related products.

55      As the Advocate General pointed out, in essence, in point 83 of her Opinion, the attainment of those broader environmental protection objectives depends on the ability to deter customers from using products that are less energy-efficient and to encourage businesses to manufacture, as a matter of priority, more energy-efficient products.

56      It follows that, in order to ensure the full effectiveness of the objectives pursued by the energy labelling system established by Regulation 2017/1369, the concept of ‘dealer’ within the meaning of Article 2(13) of that regulation must be interpreted as encompassing persons who display an energy-related product in the course of a commercial activity for reasons other than obtaining financial consideration.

57      As regards the origin of Regulation 2017/1369, it must be borne in mind that, during the legislative process which led to the adoption of that regulation, significant amendments were made, in particular, as regards the definition of the concept of ‘dealer’. Commission proposal COM (2015) 341 final of 15 July 2015, which led to the adoption of Regulation 2017/1369, defined that concept as ‘a retailer or any other person who sells, leases, offers for hire purchase or displays products to consumers’, without referring to the words ‘whether or not in return for payment’. Thus, the definition of the concept of ‘dealer’ in that proposal was more restrictive than that adopted in Regulation 2017/1369.

58      It does not therefore appear that the EU legislature wished to limit the scope of the concept of ‘dealer’ in Article 2(13) of Regulation 2017/1369, so as to exclude persons who display an energy-related product in the course of a commercial activity for reasons other than obtaining financial consideration.

 The general scheme of Regulation 2017/1369

59      In order to answer the question raised by the referring court, it is also necessary to determine whether a dealer who, in the course of his or her commercial activity, organises an online prize draw and promises an energy-related product as a prize to be won must be regarded as ‘displaying’ the product at issue to a ‘customer’ in the course of a ‘commercial activity’, whether or not in return for payment, within the meaning of Article 2(13) of Regulation 2017/1369.

60      It is necessary, in that regard, to examine the general scheme of that regulation and, more specifically, the concepts of ‘customer’, ‘display’, ‘commercial activity’ and ‘visual advertisements’ within the meaning of that regulation.

61      In order to provide the referring court with a useful answer, it is necessary, in the first place, to determine whether the concept of ‘customer’ within the meaning of Regulation 2017/1369 refers to a person who participates in a prize draw in the context of which the participants have the chance of winning, as a prize, an energy-related product.

62      In accordance with Article 2(16) of that regulation, a natural or legal person who buys, hires or receives a product comes within the concept of ‘customer’.

63      It should be stated that the EU legislature did not specify whether the expression ‘receives a product’ in that provision necessarily relates to a type of transfer of ownership or of making a product available for use for consideration other than sale, hire or hire purchase.

64      However, as the Advocate General stated in point 100 of her Opinion, given that the main contracts for consideration, namely sale and hire, are already set out in that provision, and in the absence of any specific clarification, it must be held that that expression ‘receives a product’ used in Article 2(16) of Regulation 2017/1369 must be interpreted as not being limited to the situation in which a customer receives a product from a dealer for consideration, but as also covering the situation in which a customer receives a product free of charge.

65      That interpretation is supported by the fact that recitals 2 and 10 and Article 1 of Regulation 2017/1369, which set out the objectives pursued by that regulation, refer to the concept of ‘customer’ by emphasising, without mentioning the concept of ‘purchase’, that the purpose of energy labelling is to provide accurate, relevant and comparable information on energy consumption of energy-related products so that ‘customers’ can make informed choices based on the energy consumption of those products. Similarly, by laying down detailed requirements relating to energy labelling for specific product groups, Regulation 2017/1369 also uses, in Article 16(3)(b) thereof, which concerns the design and content of the energy label, the concept of ‘customers’, without any reference to ‘purchase’ as such.

66      Such an interpretation is also supported by the fact that Regulation 2017/1369 replaced Directive 2010/30. The latter referred not to ‘customers’ but to ‘end-users’ making their ‘purchasing decisions’. That was the case, in particular, with recital 14, Article 2(g), which defined the concept of ‘dealer’, and Article 10, which provided that ‘provisions in delegated acts regarding information provided on the label and in the fiche … shall enable end-users to make better informed purchasing decisions’. That marked difference in the wording of Regulation 2017/1369 as compared to Directive 2010/30, which preceded it, reflects the intention of the EU legislature to extend the scope of the energy labelling requirements also to persons who are promised, free of charge, energy-related products.

67      In the light of the foregoing, it must be held that the concept of ‘customer’, within the meaning of Article 2(16) of Regulation 2017/1369, covers a person who participates in a prize draw in the context of which the participants have the chance to win, as a prize, an energy-related product.

68      It should be added, in that regard, that to consider, as Payback submits, that such a person ‘receives’ only a hope of winning a television and not the product itself, would, as the Advocate General stated, in essence, in point 68 of her Opinion, amount to a restrictive interpretation of that concept capable of undermining the attainment of the objectives pursued by Regulation 2017/1369.

69      It is necessary, in the second place, to determine whether the unilateral promise of an energy-related product as a prize to be won in the context of an online prize draw may be categorised as a ‘display’ within the meaning of Article 2(13) of Regulation 2017/1369.

70      First, that regulation does not define the concept of ‘display’. Admittedly, it should be noted that, according to the ordinary meaning of the term ‘display’, it is unilateral in nature. The promise made to participants in a prize draw of a product as a prize is precisely unilateral in nature and may, in that respect, be categorised as a ‘display’, unlike a ‘sale’, even ‘not in return for payment’, which is contractual and direct in relation to the product concerned.

71      Second, it is necessary to determine whether ‘display’ within the meaning of that provision may be carried out online or whether the product at issue must necessarily be physically displayed.

72      In the present case, the Oberlandesgericht München (Higher Regional Court, Munich) considered that the ‘display’ of the product, within the meaning of Article 2(13) of Regulation 2017/1369, must be of a physical nature, referring, in that regard, to recital 20 of Regulation 2017/1369, which makes reference, in the context of the rescaling of an energy label relating to a group of products, to ‘affected products displayed in shops’.

73      As the Advocate General observed, in essence, in point 117 of her Opinion, it is apparent from several provisions of Regulation 2017/1369 that the display of a product is not limited to its physical presentation.

74      Recital 21 of Regulation 2017/1369 expressly refers to ‘products on display, including on the internet’ and Article 5(1)(a) of that regulation imposes on dealers the obligation to display the energy label ‘in a visible manner, including for online distance selling’. As regards the rescaling of energy labels, Article 11(4) of that regulation provides that those labels are to be displayed ‘both in shops and online’. In addition, point (c) of paragraph 13 of that article refers to ‘existing labels on products on display, both in shops and online’. Such references presuppose the possibility of online ‘display’.

75      Consequently, the concept of ‘display’ within the meaning of Article 2(13) of Regulation 2017/1369 must be interpreted as covering the unilateral promise of an energy-related product as a prize to be won in an online prize draw.

76      In the third place, it is necessary to determine whether the concept of ‘commercial activity’ in Article 2(13) of Regulation 2017/1369 must be interpreted as meaning that it covers the display of an energy-related product in the context of a prize draw in which its organiser promises that product as a prize to be won.

77      In that regard, it must first be noted that the concept of ‘commercial activity’ is not defined by Regulation 2017/1369.

78      Furthermore, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 41 and the case-law cited).

79      In order to ensure the objectives pursued by Regulation 2017/1369, as recalled in paragraphs 50, 51 and 54 of the present judgment, the concept of ‘commercial activity’, within the meaning of Article 2(13) of that regulation, must be interpreted broadly.

80      In addition, as the Advocate General observed in point 109 of her Opinion, Regulation 2017/1369 and Delegated Regulation 2019/2013 constitute acts of EU law governing specific aspects of unfair commercial practices, within the meaning of Article 3(4) of Directive 2005/29.

81      Article 2(d) of Directive 2005/29 defines ‘business-to-consumer commercial practices’, a neighbouring concept to that of ‘commercial activity’ as ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’.

82      It should be noted that that definition, first, reflects a broad understanding of the activities covered by commercial practices and, second, expressly refers to the ‘promotion’ and ‘supply’ of a product as distinct concepts from ‘sale’. Given that the supply of a product to consumers in return for payment falls within the scope of ‘sale’, it must be held that the concept of ‘supply’, within the meaning of Article 2(d) of Directive 2005/29, concerns the supply of a product for no consideration.

83      In order to ensure consistency and unity in the interpretation of EU law, and given the close links between Regulation 2017/1369 and Directive 2005/29, such as set out in paragraph 80 of the present judgment, the concept of ‘commercial activity’, within the meaning of that regulation, must be interpreted consistently with that of ‘commercial practices’ as defined in Article 2(d) of that directive. Consequently, that concept of ‘commercial activity’ must be interpreted as covering the ‘supply’ of a product for no consideration or the ‘promotion’ of that product.

84      That interpretation is, moreover, supported by the fact that the concept of ‘customer’, within the meaning of Regulation 2017/1369, covers, as is apparent from paragraph 64 of the present judgment, inter alia, the situation in which a customer receives a product free of charge.

85      It must be stated that, contrary to Payback’s submission, such an interpretation cannot result in every media outlet which refers to an energy-related product in a report being required to comply with the energy labelling requirements. As the Advocate General observed, in essence, in point 113 of her Opinion, interpreting the concept of ‘commercial activity’ within the meaning of Regulation 2017/1369 in the light of the definition of the concept of ‘commercial practices’ within the meaning of Article 2(d) of Directive 2005/29 makes it possible to draw a clear distinction between the mere reference to a product in the context of a media report or for information purposes and the reference to a product directly related to its sale, promotion or supply (see, to that effect, judgment of 17 October 2013, RLvS, C‑391/12, EU:C:2013:669, paragraph 37) which requires observance of the energy labelling requirements.

86      Accordingly, it must be held that the display of an energy-related product in the context of a prize draw in which its organiser promises that product as a prize to be won falls within the concept of ‘commercial activity’ within the meaning of Article 2(13) of Regulation 2017/1369.

87      In the light of all the foregoing, it is necessary to find that a dealer who, in the course of his or her commercial activity, organises an online prize draw and promises an energy-related product as a prize to be won must be regarded as ‘displaying’ that product to a ‘customer’ in the course of a ‘commercial activity’, whether or not in return for payment, within the meaning of Article 2(13) of Regulation 2017/1369.

88      Thus, a person who, as in the case at issue in the main proceedings, organises in the course of his or her commercial activity an online prize draw and promises a television as a prize to be won must, subject to verification by the referring court, be categorised as a ‘dealer’ within the meaning of that provision.

89      In the fourth place, as regards the concept of ‘visual advertisements’, it should be recalled that point (a) of the first paragraph of Article 6 of Regulation 2017/1369 provides that dealers are to make reference to the energy efficiency class of the energy-related product and to the range of efficiency classes available on the label in visual advertisements or technical promotional material. Furthermore, in accordance with Article 4(d) of Delegated Regulation 2019/2013, dealers are to ensure that any visual advertisement for a specific model of electronic display, including on the internet, contains the energy efficiency class and the range of energy efficiency classes available on the label.

90      In order to provide the referring court with a useful answer enabling it to resolve the dispute before it, it is still necessary, in the last place, to determine whether the online display of the image of an energy-related product, together with the designation of that product’s model and no other additional information, such as that at issue in the main proceedings, constitutes a ‘visual advertisement’ within the meaning of point (a) of the first paragraph of Article 6 of Regulation 2017/1369.

91      It should be noted that, although the concept of ‘visual advertisements’ is not defined either in Regulation 2017/1369 or in Delegated Regulation 2019/2013, it is not apparent from any provision of those regulations that the classification of a product as appearing in ‘visual advertisements’ within the meaning of point (a) of the first paragraph of Article 6 of Regulation 2017/1369 requires a minimum of technical or economic content.

92      In any event, to exclude from the scope of that concept any display of a product which does not contain all the relevant information concerning it would have the effect of not guaranteeing the efficiency of the energy labelling system, as established by Regulation 2017/1369.

93      Furthermore, even if the ability of the image of a product to induce consumers to purchase it were, as the Commission maintains, to be regarded as constituting the relevant criterion for the categorisation of ‘visual advertisement’ within the meaning of point (a) of the first paragraph of Article 6 of Regulation 2017/1369, it is apparent from the image of the product at issue in the main proceedings, which contains a representation of a television accompanied by an indication of its model, that it is sufficient as such to encourage the target public to purchase it.

94      Accordingly, it must be held that the online display of a product’s image, accompanied by the designation of its model without any other additional information, constitutes a ‘visual advertisement’ within the meaning of point (a) of the first paragraph of Article 6 of Regulation 2017/1369 and is, therefore, subject to the requirements arising from the combined provisions of that provision and Article 4(d) of Delegated Regulation 2019/2013.

95      In the light of all the foregoing reasoning, the answer to the question referred is that Article 2(13) of Regulation 2017/1369 must be interpreted as meaning that a person who, in the course of his or her commercial activity, organises an online prize draw and promises a television as a prize to be won must be categorised as a ‘dealer’ within the meaning of that provision, with the result that that person is required to comply with the requirements arising from point (a) of the first paragraph of Article 6 of that regulation and from Article 4(d) of Delegated Regulation 2019/2013.

 Costs

96      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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

Article 2(13) 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 a person who, in the course of his or her commercial activity, organises an online prize draw and promises a television as a prize to be won must be categorised as a ‘dealer’ within the meaning of that provision, with the result that that person is required to comply with the requirements arising from point (a) of the first paragraph of Article 6 of that Regulation and from Article 4(d) of 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.

[Signatures]

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*      Language of the case: German.