Opinion of Advocate General Ćapeta delivered on 26 February 2026.###

1.

The proverb ‘all that glitters is not gold’ highlights the fact that appearances can be deceiving. Something that seems attractive or valuable on the surface may prove not to be in reality.

2.

That is especially true in situations where a person is offered a product free of charge, for example in the context of a prize draw, without being given information on the characteristics of said product and thus the potential impact of its future use.

3.

In essence, the present proceedings task the Court with determining to what extent individuals must be informed of a product’s characteristics to enable them to make an informed decision.

4.

PAYBACK, the defendant in the main proceedings, is the operator of a multi-partner bonus points programme. That company aims to promote customer loyalty and attract new customers by offering ‘PAYBACK points’ to users of the bonus points programme who make purchases from one of its retail partners. Once users acquire a certain number of points, they can choose either to receive remuneration in return for those points or to use them to make purchases from participating partner companies.

5.

On 1 February 2022, PAYBACK advertised in its online newsletter a prize draw with the claim ‘Täglich ein neuer Gewinn, z. B. 2 x Samsung QLED 4K TV Q80A, 75 Zoll’ (‘A new prize to be won every day, such as 2 x Samsung QLED 4K TV Q80A, 75 inch’), accompanied by a picture of said television, as well as a tabular list of the prizes to be won.

6.

However, PAYBACK did not include any information, in either the picture of the television or in in the list of possible prizes, on the energy efficiency class of that product.

7.

In a letter dated 7 February 2022, Verband Wirtschaft im Wettbewerb, Verein für Lauterkeit in Handel und Industrie – an association dedicated to promoting its members’ interests and ensuring fair market competition through legal research, public instruction and the enforcement of anti-unfair-competition laws, and the applicant in the main proceedings (‘the Association’) – unsuccessfully served a warning notice informing the defendant in the main proceedings of that omission of information in its advertisement of the television.

8.

The Association then brought an action against the defendant in the main proceedings before the Landgericht München I (Regional Court, Munich I, Germany), seeking an injunction against any advertising of the television without providing the relevant information on its energy efficiency class.

9.

The Association claimed that PAYBACK, as a dealer of the product advertised within the meaning of Article 2(13) of Regulation (EU) 2017/1369, ( 2 ) failed in its obligation to make reference to the energy efficiency class of the product and the range of the efficiency classes available on the label in the visual advertisement pursuant to point (a) of the first paragraph of Article 6 of that regulation, ( 3 ) read in conjunction with Article 4(d) of Commission Delegated Regulation (EU) 2019/2013. ( 4 )

10.

Together, those provisions impose on dealers an obligation to provide customers with information on the energy efficiency class of electronic displays, including televisions, ( 5 ) in visual advertisements or technical promotional material of those products.

11.

By virtue of those provisions, the Association claims that PAYBACK, by failing to provide the relevant information on the energy efficiency class of the television advertised as part of its prize draw, was in breach of its obligation under Regulation 2017/1369, read in conjunction with Article 4(d) of Delegated Regulation 2019/2013. It was on the basis of that claim that the applicant in the main proceedings sought injunctive relief and reimbursement of the costs of issuing the warning notice.

12.

Conversely, PAYBACK argued that it was not a ‘dealer’, within the meaning of Article 2(13) of Regulation 2017/1369, ( 6 ) in respect of the products advertised and that it was therefore not subject to the requirements laid down in the aforementioned provisions.

13.

By way of a default judgment delivered on 5 September 2022, the Landgericht München I (Regional Court, Munich I) found in favour of the applicant and ordered the defendant to refrain from visually advertising, and/or commissioning the visual advertisement of, a specific model of electronic display without specifying the energy efficiency class and the corresponding range of energy efficiency classes available on the label.

14.

PAYBACK lodged an objection against that decision, which the Landgericht München I (Regional Court, Munich I) in turn dismissed by its final decision on 23 January 2023.

15.

That same company then brought an appeal on the merits before the Oberlandesgericht München (Higher Regional Court, Munich, Germany; ‘the court of appeal’).

16.

By judgment of 14 March 2024, the court of appeal allowed the appeal, setting aside the default judgment and dismissing the action. That court held that the action was admissible but unfounded, and therefore rejected the applicant’s claim for injunctive relief.

17.

According to the court of appeal, PAYBACK could not be considered a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 and was therefore not subject to the energy efficiency labelling requirements laid down in that regulation. That court held that a customer does not need information on the energy efficiency of energy-related products which are offered as part of a prize draw in order to make an informed transactional decision, as customers are not choosing a product but merely deciding whether to take part in the prize draw itself, for which no consideration was required.

18.

Following that judgment, the Association made an appeal on a point of law to the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court, seeking the reinstatement of the default judgment.

19.

PAYBACK maintains that the appeal should be dismissed.

20.

The referring court harbours doubts as to whether the court of appeal was correct in dismissing the applicant’s claim for injunctive relief on the ground that the defendant in the main proceedings, as the organiser of the prize draw at issue, was not, as regards the products offered as prizes, a ‘dealer’ for the purposes of the energy efficiency labelling requirements laid down in Regulation 2017/1369, and was therefore not obliged to provide individuals with information relating to the energy efficiency of the product at issue.

21.

The outcome of that appeal before the Bundesgerichtshof (Federal Court of Justice) thus hinges on the interpretation of ‘dealer’ and, more precisely, on whether PAYBACK can be regarded as a dealer for the purposes of the energy efficiency labelling requirements laid down in point (a) of the first paragraph of Article 6 of Regulation 2017/1369, and Article 4(d) of Delegated Regulation 2019/2013.

22.

In the light of those considerations, 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 fulfil the requirements laid down in [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]?’

23.

Written observations were submitted to the Court by the Association, PAYBACK and the European Commission.

24.

The Court considered that it had sufficient information and decided to give a ruling without a hearing, pursuant to Article 76(2) of the Rules of Procedure of the Court of Justice.

25.

In 1992, the European Union introduced energy labelling requirements for a number of household appliances with a view to helping individuals identify energy-efficient products and to curtail the environmental impact of less-energy-efficient products. ( 7 ) Those requirements did not yet extend to televisions.

26.

However, the scope of the energy labelling framework, today governed by Regulation 2017/1369, has since evolved and expanded to include a much broader range of products. ( 8 )

27.

Based on an assessment of costs and benefits of energy labelling requirements, the option of introducing a labelling scheme for energy efficiency of electronic displays, including televisions, monitors and signage displays, emerged as a preferred option, as it delivers the highest savings. ( 9 )

28.

Regulation 2017/1369 articulates, in recital 10 thereof, the need to establish a standardised mandatory label for all energy-related products as an effective means of informing customers about the energy efficiency of said products. ( 10 ) It further specifies that a uniform label should be introduced for different product groups. ( 11 )

29.

As mentioned, point (a) of the first paragraph of Article 6 of that regulation obliges suppliers and dealers to display a product’s energy efficiency class on visual advertisements or technical promotional material in accordance with the relevant delegated act.

30.

Accordingly, Article 16 of Regulation 2017/1369 empowers the Commission to adopt delegated legislation to supplement that regulation in order to specify how the energy class and the range of the efficiency classes available on the label is to be included in visual advertisements and technical promotional material for different product groups.

31.

Thus, with regard to energy labelling of electronic displays, such as televisions, the Commission introduced Delegated Regulation 2019/2013, which sets the standardised energy label for that product group.

32.

Article 4(d) of that regulation, as noted above, expounds on the obligation on traders in relation to the energy efficiency labelling of electronic displays, specifying that dealers must ensure that any visual advertisement of a particular model of that type of product contains information on the energy efficiency class and the range of efficiency classes available on the label.

33.

It is in the context of that obligation that the present question for a preliminary ruling arises.

34.

By its question, the referring court asks, in essence, whether the defendant in the main proceedings, as the organiser of an online prize draw, should be regarded as a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 with respect to the television offered as a prize, and as therefore being in breach of its information obligation under Article 6 of that regulation in failing to make reference to the energy efficiency class of said television and the range of efficiency classes available.

35.

It follows from the Court’s settled case-law that the standard method for interpreting a provision of EU law consists of a textual, teleological and contextual analysis of the legislation in question. ( 12 )

36.

With that in mind, my analysis of the question referred will consist of three parts.

37.

I will begin by examining the exact wording of Article 2(13) of Regulation 2017/1369 and the definition of ‘dealer’ contained therein, with a view to ascertaining whether the energy labelling requirements should apply to persons who offer products as part of a prize draw. I will then turn to the broader policy objectives being pursued through the energy labelling requirements, in order to shed some light on the intended scope of the concept of ‘dealer’. Finally, I will consider the definition of ‘dealer’ in the full context of Regulation 2017/1369, assessing how it relates to the other provisions provided therein.

38.

It is worth noting at this point that there seems to be a divergence in the wording of Article 2(13) of Regulation 2017/1369 across various language versions, most notably between, on the one hand, the German language version – which is the language of the case in the main proceedings – and, on the other hand, other language versions.

39.

According to the German-language version of Article 2(13) of Regulation 2017/1369, a ‘dealer’ (‘händler’) is a person who, in the course of a commercial activity (‘im Rahmen einer Geschäftstätigkeit’), whether for remuneration or free of charge (‘entgeltlich oder unentgeltlich’), offers (‘anbietet’) or displays (‘ausstellt’) a product for sale, hire or hire purchase (‘zum Kauf, zur Miete oder zum Ratenkauf’). ( 13 )

40.

Thus, based on the wording of the German-language version, the activity of displaying a product would appear to be linked to the purpose of sale, hire or hire purchase. Such an understanding of ‘dealer’ seemingly precludes from the scope of that definition persons who display products for reasons other than for direct remuneration.

41.

In contrast, other language versions, for example the Croatian, ( 14 ) French, ( 15 ) Irish, ( 16 ) Italian ( 17 ) and Slovenian ( 18 ) language versions, are comparably worded to the English language version, ( 19 ) and define a ‘dealer’ as a person who offers a product for sale, hire, hire purchase or displays a product in the course of a commercial activity, with or without payment.

42.

The German language version of Article 2(13), on the one hand, could be understood as requiring that, in order to be classified as a dealer, a person must (i) display products in the course of a commercial activity and (ii) do so for the purposes of sale, hire or hire purchase, both conditions being cumulative. On the other hand, it follows from the other language versions referred to above that the activity of displaying a product in the course of a commercial activity alone seems to be sufficient to classify a person as a dealer.

43.

Under Article 1 of Council Regulation No 1, ( 20 ) all the official languages of the European Union listed in that provision are the authentic languages of the acts in which they are drafted, and therefore all language versions of an EU act must, in principle, be recognised as having the same value.

44.

Thus, in accordance with the settled case-law of the Court, when there is divergence between the various language versions of a particular provision, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. ( 21 )

45.

It is therefore necessary to examine the overarching objectives behind Regulation 2017/1369 in order to establish whether the activity of displaying products referred to in Article 2(13) should be interpreted as being linked to the purpose of sale, hire or hire purchase – so as to preclude advertisements such as that at issue in present case – or whether the activity of displaying products should be understood as being independent of that purpose – so that the definition of ‘dealer’ may be interpreted as encompassing advertisements such as that at issue in the present case.

46.

However, before analysing the objectives of that regulation, I will briefly reflect on some of the arguments advanced by the Commission, the defendant in the main proceedings and the Association concerning the wording of Article 2(13) of that regulation.

47.

It is on the basis of the German language version of Article 2(13) of Regulation 2017/1369 that both PAYBACK and the Commission argue that an organiser of a prize draw cannot be considered a dealer within the meaning of that regulation.

48.

They contend, inter alia, that because PAYBACK is not involved in the sale, hire or hire purchase of the product at issue, in that it does not indicate the price of the various products or encourage the customer to purchase them, it does not fall within the definition of ‘dealer’ contained in Article 2(13) of Regulation 2017/1369, even if the defendant in the main proceedings displays the product in the context of a commercial activity.

49.

Although that interpretation of ‘dealer’, at first glance, aligns with the German language version of the definition, such an interpretation would essentially have the effect of rendering the wording ‘whether or not in return for payment’, which is common across all language versions, devoid of meaning.

50.

In the light of that consideration, the Association submits that the concept of ‘dealer’ is not limited to businesses that offer goods for sale, but also includes those that provide products free of charge by, for example, offering prizes as part of a draw. In that case, the defendant in the main proceedings would constitute a dealer within the meaning of Regulation 2017/1369.

51.

Indeed, the additional qualification ‘whether or not in return for payment’ suggests that the absence of remuneration is irrelevant and that goods need not only be displayed in the context of a sale, hire or hire purchase. That gives further credence to an interpretation of ‘dealer’ which includes persons who display products over the course of a commercial activity regardless of consideration, as is discernible from the English and other language versions.

52.

Such an interpretation would be further corroborated by the definition of ‘customer’ contained in Regulation 2017/1369. Article 2(16) thereof defines a ‘customer’ as any ‘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’. ( 22 )

53.

The employment of the word ‘receives’ within that definition presupposes that people who receive products not in return for payment, whether it be as a gift or as a prize won in a draw, could also fall within the definition of ‘customer’.

54.

In view of the above, the explicit wording of those provisions steers me towards an initial inference that an organiser of a prize draw, such as the defendant in the main proceedings, who displays a product in the course of a commercial activity, irrespective of whether consideration is envisaged, should be considered a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 and therefore subject to the energy labelling requirements laid down in that regulation, read in conjunction with Delegated Regulation 2019/2013.

55.

With that said, in accordance with the aforementioned case-law of the Court, it is necessary in order to interpret a provision of EU law to further consider the objectives pursued by the rules of which it forms part and the context in which it occurs.

56.

If, textually, there is room for more than one interpretation of the scope of the energy labelling requirements, it is important to understand why the EU legislature introduced those requirements in the first place in order to determine whether the defendant in main proceedings was in fact under an obligation to display such labels.

57.

It follows from recitals 2 and 10 of Regulation 2017/1369 that the essential objectives of that regulation are, first, to enable customers to make informed choices with regards the energy consumption of energy-related products ( 23 ) and, second, to promote innovation by encouraging manufacturers to produce more-energy-efficient products.

58.

Both of those objectives fall within the third objective and the European Union’s broader policy goals for the environment and climate change, and form a crucial part of the EU's 2030 climate and energy policy framework. Improving the efficiency of energy-related products through informed customer choice and the development of more-energy-efficient products aims to have a positive impact on the environmental performance of the energy-related products. ( 24 )

59.

For the purposes of the case at hand, I will now discuss each of those three objectives with regard to the question posed by the referring court.

60.

As intimated above, Regulation 2017/1369 aims to ensure that customers are provided with accurate, relevant and comparable information on the precise energy consumption of energy-related products in order to facilitate customer choice in favour of using products which consume less energy during use by allowing them ‘to predict the direct impact of their choices on their energy bills’. ( 25 )

61.

Evidence shows that even with an increase in purchase price for more energy-efficient products, purchasing such products nonetheless yields economic benefits for customers. ( 26 ) The EU legislature thus anticipated customers’ willingness to make short-term economic sacrifices by choosing products that may be more expensive at purchase but that will bear significant energy and cost savings over the life cycle of the product. ( 27 )

62.

To develop that point further, it may be worthwhile to consider a 2014 study on the impact of the energy label which revealed a willingness on the part of customers to make short-term economic sacrifices by choosing products that may be more expensive at purchase but that will bear significant energy and cost savings over the life cycle of the product. That study, which was cited by the Commission in its explanatory memorandum for Delegated Regulation 2019/2013, revealed that the majority of respondents took into account energy labels when making their choices in the experiment, and were willing to pay extra for a more-energy-efficient product. ( 28 )

63.

Similarly, in a Commission impact assessment on energy labels for household appliances, the majority of respondents indicated that the information on energy efficiency via the energy labels was ‘very or extremely important’ in helping them to make decisions. ( 29 )

64.

The above evidence reveals that customers not only expect reliable information on a product’s energy performance, but that they also attach considerable value to that information when deciding whether to acquire or use a product. Similarly, it implies that customers may be deterred from accepting less-efficient energy-related products that are likely to result in higher operating costs.

65.

With that in mind, the energy efficiency of an energy-related product is a material factor in informing an individual’s choice to enter a prize draw that offers that product, since the energy inefficiency of said product may discourage participation.

66.

But should ‘informed customer choice’ be understood as relating solely to the purchase of goods, or also as encompassing a customer ’s decisions to take part in a prize draw?

67.

Contending that energy labelling is intended to facilitate informed comparisons between competing products, PAYBACK and the Commission argue that a competition organiser cannot qualify as a ‘dealer’, as participants are not offered a choice between different models of the same product, but are merely offered the chance to enter the draw for the specific prizes on offer.

68.

While there may be some merit in that argument, this narrow interpretation of that aim appears to undermine the broader environmental protection aims of the energy labelling requirements.

69.

As I have noted, the energy labelling requirements are designed to enable customers to predict the environmental and economic impact of their choices with regards the potential future use of an energy-related product.

70.

While the term ‘choice’ is not defined in Regulation 2017/1369, the overarching purpose of that regulation – namely to advance the European Union’s broader policy goals of achieving a high level of consumer and environmental protection, as laid down in Article 169(1) and Article 191(2) TFEU – justifies a broad interpretation of that term in order to guarantee the full efficacy of the energy labelling requirements.

71.

Bearing that in mind, the aim of Regulation 2017/1369 to enable customers to make ‘informed choices’ should not be understood as applying only to purchasing situations, but, as contended by the Association, should apply to all situations where energy-related products are offered, whether in return for remuneration or as a potential prize in a prize draw.

72.

Taking account of the above, to my mind, the objective of allowing customers to make energy-conscious and cost-effective choices in respect of energy-related products, in order to increase energy savings and reduce energy bills is not confined to decisions involving payment, but encompasses any customer choice in which the energy efficiency information may be taken into account, regardless of the context in which the product is offered or acquired.

73.

In addition to the environmental benefits and economic advantages for customers, energy labelling requirements at EU level promote and drive innovation and investments in more-energy-efficient products. ( 30 )

74.

Energy labelling requirements, by informing customers of the potential economic benefits of choosing more-energy-efficient products and, therefore, dissuading them from choosing less-efficient products, incentivises manufacturers to develop and produce the most-energy-efficient products to gain a competitive advantage. ( 31 )

75.

Thus, the more ambitious the energy labelling requirements are for energy-related products, the more they give businesses the opportunity to positively differentiate themselves and their products from those of their competitors, thereby stimulating innovation. ( 32 )

76.

Accordingly, energy labelling requirements aim to reward the best-performing products through mandatory rating, by offering first-mover advantage to businesses that offer more-energy-efficient products. ( 33 )

77.

What’s more, recital 34 of Regulation 2017/1369 empowers Member States to create incentives for the production and use of said products. Member States are free to decide on the nature of such incentives.

78.

In the light of those considerations, excluding from the energy labelling obligations laid down in Regulation 2017/1369 any person who displays an energy‑related product for reasons other than direct remuneration – yet does so in the course of a commercial activity – would, in my view, undermine the objective of cultivating innovation. As such, an exclusion would dilute the mechanism that rewards the most-energy-efficient products, the manufacturers that produce them and the dealers that offer them.

79.

Energy efficiency labelling not only enhances consumer protection and encourages industries to develop and produce more-energy-efficient products, but it also contributes significantly to the achievement of the European Union’s 2020 and 2030 energy efficiency targets, as well as to its goals for the environment and climate change. ( 34 )

80.

By incentivising the uptake and production of more-energy-efficient products, Regulation 2017/1369 aims to further exploit the potential of energy efficiency for the moderation of energy demand and consequent reduction of the energy dependency of the European Union as a whole. ( 35 )

81.

The energy labelling requirements laid down in Regulation 2017/1369 are therefore intended to facilitate the achievement of the ambitious environmental policy goals of reducing the European Union’s energy consumption and greenhouse gas emission. ( 36 )

82.

Energy labelling requirements are justified by the straightforward reality that energy-related products can have a negative impact on the environment depending on how they are made, used and disposed of. ( 37 )

83.

Accordingly, the success or failure of realising the broader environmental protection goals pursued by Regulation 2017/1369, in particular to improve the efficiency of energy-related products through informed customer choice, is inherently dependent on the efficacy of that regulation in deterring customers from using less-energy-efficient products. This, in turn, prompts businesses to prioritise the making of more-energy-efficient products, therefore reducing the use and market availability of less-energy-efficient products and curtailing the environmental impact of those products.

84.

To that end, ‘informed customer choice’ must be understood as referring to the ability of a customer to assess both the environmental and the economic implications of their future use of an energy-related product and to act on that knowledge in all situations where energy-related products are offered to them, whether in return for remuneration or not, including as a potential prize in a prize draw.

85.

Therefore, to my mind, ascribing a narrow interpretation to ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 – by limiting the scope of the energy labelling obligation to persons who display a product only when it is offered in return for remuneration – would undermine the effectiveness of that regulation in achieving its broader environmental protection aims. Such a narrow interpretation would serve to deprive customers of the ability to make informed environmentally friendly and energy-conscious decisions in relation to energy-related products offered for reasons other than for direct remuneration, either free of charge or as a prize in a prize draw (as in the present case).

86.

With the foregoing discussion in mind, my analysis of the overarching purpose of the energy labelling requirements leads me to conclude that the definition of ‘dealer’, within the meaning of Article 2(13) of Regulation 2017/1369, should be interpreted as encompassing persons that advertise energy-related products in the course of a commercial activity for reasons other than for direct remuneration, such as in the context of a prize draw.

87.

With that said, my below analysis of the general scheme of the energy labelling framework will serve to test the legitimacy of that interpretation.

88.

Notwithstanding the foregoing conclusion, there remain a number of components of the energy labelling obligation which merit deeper analysis and which will further enlighten us as to the true intentions of the EU legislature.

89.

To recall, PAYBACK must be considered a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 if it can be said that it displayed the television at issue to a customer in the course of a commercial activity, whether or not in return for payment.

90.

As previously stated, it follows from recital 10 of Regulation 2017/1369 that the principal purpose of energy labelling is to provide customers with accurate, relevant and comparable information on the specific energy consumption of energy-related products, which facilitates the customer’s choice in favour of products which consume less energy.

91.

While the concept of ‘customer’ may, in general, be understood as implying a transactional relationship with a dealer, from whom the customer purchases a product, a customer for the purpose of Regulation 2017/1369 is specifically defined by Article 2(16) thereof as a person who buys, hires or receives a product.

92.

The use of the word ‘receives’ in that definition suggests that the EU legislature did not intend to limit the concept of ‘customer’ to include only those individuals who receive a product for payment (that is to say, the purchase of that product), but that it wished to include within that definition also individuals who receive products from dealers free of charge.

93.

That legislative intention behind that specific wording is further evidenced when contrasted with the language employed by the EU legislature in Directive 2010/30, which was replaced by Regulation 2017/1369.

94.

It followed from recital 14 of Directive 2010/30 that the energy labelling requirements laid down therein were designed to stimulate customers ‘to purchase more[-energy-]efficient products’. ( 38 )

95.

Furthermore, Article 10 of that directive, which governed the adoption of delegated acts, provided that the information contained on the energy labels for specific products should ‘enable end users to make better informed purchasing decisions’. ( 39 )

96.

The explicit reference to ‘purchasing decisions’ in that directive limited the scope of energy labelling obligations to purely transactional situations involving remuneration.

97.

Quite the reverse, under current law and according to Article 2(16) of Regulation 2017/1369, the term ‘customer’ refers to a natural or legal person who purchases, hires or receives a product.

98.

Similarly, with regard to delegated acts, Article 16(3)(b) of that regulation also refers to ‘customers’, without mentioning ‘purchase’ as such.

99.

This marked difference in the language used in Regulation 2017/1369 compared to its predecessor in law is, to my mind, indicative of an unambiguous desire to extend the scope of energy labelling requirements to encompass individuals who are offered energy-related products not in return for payment.

100.

Given that the main contracts for consideration, namely sale and hire, are already set out in Regulation 2017/1369, and in the absence of any other explicit limitation, I consider that the use of the word ‘receives’ in Article 2(16) thereof aligns with the view that the definition of ‘customer’ includes individuals who receive a product free of charge.

101.

As outlined, the display of an energy-related product to a customer is not, by itself, sufficient to trigger the energy labelling obligation of a dealer, but this ‘display’ must also occur ‘in the course of a commercial activity, whether or not in return for payment’.

102.

In its request for a preliminary ruling, the referring court raises the pertinent question as to whether a ‘commercial activity of any kind’ is sufficient in order for a person to be considered a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369.

103.

In their written submissions to the Court, both PAYBACK and the Commission reiterate that the television offered as a prize was not advertised for sale, hire or hire purchase, nor did PAYBACK indicate that it was available for sale from any of the participating partner companies, and therefore maintain that there lacks a sufficient link between the commercial activity of the defendant, which is organising the bonus points programme, and the display of the television at issue to allow the definition of ‘dealer’ to apply.

104.

Similarly, PAYBACK argues that the concept of ‘commercial activity’ for the purpose of defining a ‘dealer’ cannot be understood as extending to ‘a commercial activity of any kind’, as such an interpretation would overlook the explicit use of the terms ‘sale, hire, or hire purchase’ in that definition.

105.

Moreover, PAYBACK states that if ‘a commercial activity of any kind’ were sufficient for a person to be considered a ‘dealer’, and therefore subject to energy labelling requirements, it is not only organisers of prize draws that would be affected. In its view, if such an interpretation were correct, it would have the unreasonable consequence of placing on all media outlets – such as newspapers, magazines or television channels – that mention a particular energy-related product in a report an obligation to comply with the energy labelling requirements.

106.

To recall, PAYBACK is the operator of a multi-partner bonus points programme, the goal of which is to attract and retain customers for its corporate participants; this can thus be said to constitute the defendant’s commercial activity.

107.

First, I doubt the credibility of the claim that there is an insufficient link between PAYBACK’s commercial practices and its advertisement of the product at issue.

108.

As PAYBACK confirms in its written submissions, the primary objective of its commercial activity is to ‘attract and retain customers’. In the same way, the aim of organising the prize draw at issue is to increase the attractiveness of its bonus points system for new and existing customers. Hence, the organisation of the prize draw is designed to support and bolster its commercial activity. Thus, subject to final verification by the referring court, the display of the television and the commercial activity of the defendant in the main proceedings appear to be inextricably linked.

109.

Second, ‘commercial activity’ is not explicitly defined in Regulation 2017/1369. Nonetheless, that regulation and Delegated Regulation 2019/2013 constitute EU law rules governing specific aspects of unfair commercial practices, ( 40 ) within the meaning of Article 3(4) of Directive 2005/29/EC. ( 41 ) Therefore, some guidance can be drawn from that directive for the purpose of defining ‘commercial activity’ within the meaning of Regulation 2017/1369.

110.

While the concept of ‘commercial activity’ is not itself defined in Directive 2005/29, Article 2(d) thereof nevertheless defines ‘commercial practices’ by means of a particularly broad formulation; the practices covered by it need to be commercial in nature, that is to say, originating from traders, ( 42 ) and directly connected with the promotion, sale or supply of their products to customers. ( 43 )

111.

The use of the wording ‘or supply’ in that definition seems to include the supply of products not in return for remuneration. Such a reading of that definition is supported by the fact that it is separate, and hence distinguished, from the activity of selling a product set out in that definition. Thus, the offering of a product to a customer as a prize to be won as part of a prize draw can reasonably be said to constitute the supply of that product to a customer, and hence is captured within the definition of commercial practices contained in Directive 2005/29.

112.

Applying that broad understanding of commercial practices to the concept of ‘dealer’ contained in Article 2(13) of Regulation 2017/1369 would be consistent with the explicit wording of both that provision (‘whether or not in return for payment’) and with the definition of ‘customer’ (‘natural or legal person who … receives a product’), both of which imply that the absence of payment is irrelevant for interpreting the concept of ‘dealer’ for the purposes of Regulation 2017/1369.

113.

Furthermore, interpreting commercial activity in the light of the definition of commercial practices contained in Article 2(d) of Directive 2005/29 also placates the fears of the defendant in the main proceedings that any media outlet that mentions an energy-related product in a report would be bound by the energy labelling requirements. That would not be the case, as, although it is mentioned in the course of a commercial activity, the mention of the product could not be said to be directly connected with the promotion, sale or supply of a product, therefore precluding the media outlets from the energy labelling requirements laid down in Regulation 2017/1369. ( 44 )

114.

Taking account of the foregoing and applying it to the present case, the defendant’s display of the television as part of the prize draw can be said to have been done in the course of its commercial activity and is directly linked to the supply of that product to the winning customer.

115.

In its order for reference, the referring court further queries whether the defendant in the main proceedings can be said to have ‘displayed’ the television, as contemplated in the definition contained in Article 2(13) of Regulation 2017/1369, by including a picture of it in its advertisement and describing it in the list of possible prizes.

116.

In that regard, on the basis of recital 20 of Regulation 2017/1369, which refers to products that are ‘displayed in shops’, the court of appeal held that ‘displays’ within the meaning of Article 2(13) of that regulation is to be understood as referring only to a physical presentation of products, therefore excluding from its scope visual advertisements made online, such as that at issue in the case at hand.

117.

However, that interpretation seems contrary to the express wording of a number of other provisions in Regulation 2017/1369, in particular Article 5(1)(a) thereof, which requires dealers to display energy efficiency labels ‘in a visible manner, including for online distance selling’.

118.

Moreover, Article 11 of that regulation refers to the establishment of a homogenous rescaled energy efficiency scale with the aim of ‘displaying the rescaled label both in shops and online’. ( 45 ) Equally, recital 21 of the regulation explicitly mentions the replacement of existing energy labels on products ‘on display, including on the internet’. ( 46 )

119.

Those provisions presuppose the possibility of an ‘online display’, implying that the concept of ‘displaying a product’ within the meaning of Article 2(13) is not necessarily limited to the physical presentation of products, but should be understood as any type of presentation of a product, including online visual advertisements promoting a prize draw, like that at issue in the main proceedings.

120.

Finally, the Commission argues that even if the defendant in the main proceedings does fall within the definition of ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369, it would not be obliged to display the energy efficiency label as that requirement concerns only ‘visual advertisements’ and is subject to the limitation set out in Article 4(a) of Delegated Regulation 2019/2013, which stipulates that only products offered at the ‘point of sale’ must bear the energy efficiency label. Seeing as PAYBACK does not intend to sell the product at issue, but to offer it as a prize to be won in a draw, that obligation would not apply.

121.

Notwithstanding the Commission’s assertion to the contrary, there can be little doubt that the advertisement of the television in the defendant’s newsletter constitutes a ‘visual advertisement’ within the meaning of Article 4(d) of Delegated Regulation 2019/2013, which, as noted, requires dealers to ensure that any visual advertisement for a specific model of an electronic display, such as a television, contains the relevant information on the energy efficiency class of that product. That being the case, it is Article 4(d) of the delegated regulation that is applicable in the case at hand, rather than Article 4(a) thereof.

122.

Despite the purported ambiguity as to the extent of the energy efficiency labelling obligations on dealers that offer energy-related products free of charge, like in the context of a prize draw, it follows from the settled case-law of the Court that where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness. ( 47 )

123.

Based on my hermeneutic analysis of the wording of Article 2(13) of Regulation 2017/1369, as well as the broader context in which that provision operates and the objectives it pursues, to limit the scope of the energy labelling requirements laid down in that regulation to cover only dealers who offer products for direct remuneration would undermine the benefit of those requirements, which have proven to bring added value in terms of guiding customers towards more-energy-efficient products. ( 48 )

124.

Taking into account my preceding analysis, I believe that an organiser of a prize draw, such as the defendant in the main proceedings, who displays a product in the course of a commercial activity, irrespective of remuneration, must be considered a ‘dealer’ within the meaning of Article 2(13) of Regulation 2017/1369 and therefore subject to the energy labelling requirements laid down in that regulation, read in conjunction with Delegated Regulation 2019/2013.

125.

In the light of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:

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 meaning that a competition organiser offering a television as a prize in the context of an online prize draw is to be regarded as a ‘dealer’ and therefore falls under an obligation to fulfil the requirements laid down in point (a) of the first paragraph of Article 6 thereof, read in conjunction with 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, to make reference to the energy efficiency class of that product and the range of the efficiency classes available on the label in commercial communications.