1

By their appeal, Dyson Ltd and the 14 other appellants ask the Court of Justice to set aside the judgment of the General Court of the European Union of 8 December 2021, Dyson and Others v Commission (T‑127/19, EU:T:2021:870; ‘the judgment under appeal’), by which the General Court dismissed their action for compensation for the damage they claim to have suffered as a result of the adoption by the European Commission of Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1; ‘the regulation at issue’).

2

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information of the consumption of energy and other resources by energy-related products (OJ 2010 L 153, p. 1) was repealed by Regulation (EU) 2017/1369 of the European Parliament and of the Council of 4 July 2017 setting a framework for energy labelling and repealing Directive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). Recitals 5 and 8 of that directive stated:

…

3

Article 1(1) and (2) of that directive stated:

‘1.   This Directive establishes a framework for the harmonisation of national measures on end-user information, particularly by means of labelling and standard product information, on the consumption of energy and where relevant of other essential resources during use, and supplementary information concerning energy-related products, thereby allowing end-users to choose more efficient products.

2.   This Directive shall apply to energy-related products which have a significant direct or indirect impact on the consumption of energy and, where relevant, on other essential resources during use.’

4

Under Article 5(a) and (b) of that directive, the Member States are to ensure that ‘suppliers placing on the market or putting into service products covered by a delegated act supply a label and a fiche in accordance with this Directive and the delegated act’ and that those suppliers ‘produce technical documentation which is sufficient to enable the accuracy of the information contained in the label and the fiche to be assessed’.

5

Article 10 of Directive 2010/30, headed ‘Delegated acts’, provided:

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

Where a product meets the criteria listed in paragraph 2, it shall be covered by a delegated act in accordance with paragraph 4.

Provisions in delegated acts regarding information provided on the label and in the fiche on the consumption of energy and other essential resources during use shall enable end-users to make better informed purchasing decisions and shall enable market surveillance authorities to verify whether products comply with the information provided.

…

4.   The delegated acts shall specify in particular:

…

…

6

Article 11 of that directive, entitled ‘Exercise of the delegation’, provided in paragraph 1:

‘The powers to adopt the delegated acts referred to in Article 10 shall be conferred on the Commission for a period of five years beginning on 19 June 2010. The Commission shall make a report in respect of the delegated powers not later than six months before the end of the five-year period. The delegation of powers shall be automatically extended for periods of an identical duration, unless the European Parliament or the Council [of the European Union] revokes it in accordance with Article 12.’

7

Pursuant to the delegation conferred on it by Directive 2010/30, the Commission adopted the regulation at issue, which implemented that directive with regard to the energy labelling of vacuum cleaners. To that end, it adopted a testing method for measuring, inter alia, the energy performance and dust pick-up of vacuum cleaners, which was conducted with an empty dust receptacle at the beginning of the suction tests on different types of surfaces (‘the empty-receptacle test’).

8

The first appellant is a manufacturer of a particular type of vacuum cleaner, known as ‘cyclonic’ vacuum cleaners, whose energy performance is said to be better than other kinds of vacuum cleaner. That performance was allegedly underestimated by the testing method used by the Commission since it did not make it possible to take into account a decrease in the performance of other types of vacuum cleaner as their dust receptacle fills up. By application lodged at the Registry of the General Court on 7 October 2013, the first appellant sought to have the regulation in question annulled, claiming, inter alia, that the Commission lacked competence to lay down such a testing method. It submitted in that regard that that method did not take account of vacuum cleaner performance ‘during use’, as required by Article 10(1) of Directive 2010/30. That action was dismissed by judgment of 11 November 2015, Dyson v Commission (T‑544/13, EU:T:2015:836).

9

On appeal by the first appellant, that judgment was set aside by the judgment of 11 May 2017, Dyson v Commission (C‑44/16 P, EU:C:2017:357; ‘the appeal judgment’). The case was referred back to the General Court for judgment on certain parts of the action for annulment, namely the first part of the first plea in law, alleging that the Commission lacked competence to lay down the testing method it had used, and the third plea, alleging infringement of the principle of equal treatment.

10

By judgment of 8 November 2018, Dyson v Commission (T‑544/13 RENV, EU:T:2018:761; ‘the judgment in annulment’), which has become final, the General Court held that the Commission had failed to have regard to an essential element of the enabling power conferred by Directive 2010/30, namely that the information provided to consumers had to relate to the energy efficiency of appliances ‘during use’. It thus annulled the regulation at issue without examining the third plea in law.

11

By application lodged at the Registry of the General Court on 21 February 2019, the first appellant and the other appellants, which are economically linked, brought an action for compensation for the damage which they claim to have suffered as a result of the unlawfulness of the regulation at issue. They claimed, in essence, that the Commission had committed several sufficiently serious breaches of a rule of law intended to confer rights on individuals, such as to give rise to non-contractual liability on the part of the European Union, namely infringements of Article 10(1) of Directive 2010/30, of the principle of equal treatment, the principle of sound administration and the duty to act diligently and, lastly, of the right to pursue a trade or business.

12

By the judgment under appeal, the General Court dismissed the applicants’ action and ordered them to pay the costs. It found that none of the unlawful acts alleged, to the extent they were deemed to have been established, amounted to a sufficiently serious breach of the rule of law concerned.

13

First, as regards infringement of the enabling power conferred on the Commission by Article 10(1) of Directive 2010/30, the General Court found, first of all, that the Commission did not have any discretion, but it observed that that finding did not suffice to justify the conclusion that there had been a sufficiently serious breach of that provision; it held that it was still necessary to take into consideration the complexity of the situations to be regulated, the difficulties in the application or interpretation of the legislation, the degree of clarity and precision of the rule breached, and whether the error made was inexcusable or intentional (judgment under appeal, paragraphs 36 to 38). Examining the context in which the unlawful act had been committed with respect to those various aspects, the General Court went on to find that were difficulties of interpretation and application in the light of the degree of clarity and precision of Article 10(1) of Directive 2010/30 and, more generally, of that directive as a whole (judgment under appeal, paragraphs 45 and 97), and that several factors were capable of showing that the error was excusable as well as the technical complexity of the problems to be resolved (judgment under appeal, paragraph 97). On the basis of those factors, it considered that an administrative authority exercising ordinary care and diligence could take the view that it was at risk by using a dust-loaded receptacle testing method, by which the test continues until the receptacle is filled to a certain level, rather than an testing method with an empty receptacle and that, therefore, the Commission had not manifestly and gravely disregarded the limits on its discretion (judgment under appeal, paragraph 97).

14

Second, as regards infringement of the principle of equal treatment with regard to the types of vacuum cleaner manufactured by the various economic operators concerned, the General Court held that the existence of legitimate doubts as to the scientific validity and accuracy of the results that could be reached by the testing method set out in Section 5.9 of harmonised standard EN 60312-1:2013 adopted by the European Committee for Electrotechnical Standardisation (Cenelec) (‘the Cenelec standard’) was sufficient for it to be held that, irrespective of any objective difference between ‘cyclonic’ and other types of vacuum cleaner, the Commission had not manifestly and gravely disregarded the limits on its discretion or committed a sufficiently serious breach of the principle of equal treatment by adopting the testing method with an empty receptacle (judgment under appeal, paragraphs 110 and 111).

15

Third, as regards infringement of the principle of sound administration and the duty to act diligently, the General Court held that the Commission had not failed to comply with that duty, that it had not been shown that the Commission had breached the obligation of impartiality or committed an abuse of process or, ultimately, that it had infringed the principle of sound administration (judgment under appeal, paragraph 117); in any event, it had not manifestly and gravely disregarded the limits on its discretion or committed a sufficiently serious breach of the principle of sound administration, for reasons analogous to those accepted with respect to the first two alleged unlawful acts (judgment under appeal, paragraph 118).

16

Fourth and lastly, as regards infringement of the right to pursue a trade or business, the General Court held that there was no proof of an infringement of the freedom to conduct a business or of the right to property (judgment under appeal, paragraph 130), and that, as to the remainder, since the applicants’ arguments were, in essence, identical to those developed in relation to the three other alleged unlawful acts, as regards the validity of the decision not to use the testing method in Section 5.9 of the Cenelec standard, those arguments had to be rejected for the same reasons (judgment under appeal, paragraph 131).

17

The appellants claim that the Court of Justice should:

18

The Commission contends that the Court of Justice should:

19

The appellants put forward seven grounds in support of their appeal.

20

The first four grounds of appeal concern the General Court’s finding that the infringement of Article 10(1) of Directive 2010/30 did not amount to a sufficiently serious breach of a rule of EU law intended to confer rights on individuals. The fifth to seventh grounds of appeal relate to the General Court’s findings that the alleged infringements, respectively, of the principle of equal treatment, the principle of sound administration and the duty to act diligently and, lastly, of the freedom to conduct a business were not sufficiently serious.

21

The first ground of appeal consists in essence of two limbs, one alleging failure to address a plea in law put forward by the applicants and disregard for the res judicata authority of the judgment in annulment, and the other claiming misinterpretation of the concept of ‘sufficiently serious breach’ and a failure to state reasons.

22

By the first limb of their first ground of appeal, directed against paragraph 52 of the judgment under appeal, the appellants submit that the General Court failed to adjudicate on the plea put forward in support of their action for damages alleging that the Commission could not use an empty-receptacle testing method without disregarding an essential element of the enabling act in Directive 2010/30 and that that disregard sufficed for a finding of a sufficiently serious breach of a rule of EU law intended to confer rights on individuals such as to give rise to liability on the part of the European Union.

23

They argue that the General Court considered that in order to rule on that plea, having regard to paragraph 68 of the appeal judgment, it was necessary to determine whether the Commission had been entitled to reject the testing method in Section 5.9 of the Cenelec standard on account of doubts surrounding the scientific validity of the results obtained by that method and the accuracy of the information supplied to consumers on the basis of those results, without committing a manifest and serious breach of the limits on its discretion in that regard. According to the appellants, the plea in question was solely directed at the fact that the Commission was not entitled to choose an empty-receptacle test.

24

In addition, the General Court disregarded the res judicata authority attaching to the judgment in annulment. By that judgment, which correctly applied the conclusions of paragraph 68 of the appeal judgment, the General Court had held that choosing an empty-receptacle test was in itself a breach of an essential element of Directive 2010/30 and that it was therefore unnecessary for it to rule on whether there were scientifically valid testing methods with a dust-loaded receptacle.

25

The Commission contests the merits of these two complaints.

26

In paragraphs 36 to 38 of the judgment under appeal, the General Court found that ‘the Commission did not have any discretion allowing it to exceed the powers conferred on it by the enabling act, bearing in mind in particular that [the] delegated power [available to it] must in any event comply with the essential elements of the enabling act’, that, however, ‘a lack of discretion [was] not sufficient to justify the conclusion that there [had] been a sufficiently serious breach of EU law’, but that it was necessary to determine whether the Commission ‘[had] committed a sufficiently serious breach of the obligation to comply with the essential element of the enabling act which the requirement laid down in Article 10(1) of Directive 2010/30 constitutes [and to that end] to take into consideration the complexity of the situations to be regulated, the difficulties in the application or interpretation of the legislation, the degree of clarity and precision of the rule breached and whether the error made was inexcusable or intentional’.

27

It is in that context that the General Court stated in paragraph 52 of the judgment under appeal that ‘only a manifest and serious breach of the limits on the Commission’s discretion in that regard can give rise to liability on the part of the European Union’, where the words ‘in that regard’ refer to the fact that the Commission had decided to ‘reject the use of the testing method [in] Section 5.9 of the Cenelec standard in view of doubts surrounding the scientific validity of the results obtained and the accuracy of the information supplied to consumers’.

28

Paragraph 52 of the judgment under appeal is therefore part of the examination carried out by the General Court in paragraph 38 et seq. of that judgment in order to determine whether the Commission had committed a sufficiently serious breach of the obligation to comply with the essential element of the enabling act, according to which the information provided to consumers had to relate to the energy efficiency of appliances ‘during use’; more particularly, it forms part of its assessment in paragraph 46 et seq. of that judgment of the complexity of the situation to be regulated and whether the error made by the Commission was inexcusable or intentional. Consequently, paragraph 52 cannot be read as recognising a power of discretion, which the General Court had explicitly excluded in paragraph 36 of the judgment under appeal, but is the starting point for a review of the Commission’s assessments which led it to adopt a testing method with an empty receptacle rather than a testing method with a dust-loaded receptacle, and thus to commit the unlawful act found in the judgment in annulment.

29

In that regard, the General Court considered that that unlawful act could be classified as a sufficiently serious breach only if it were found, in an examination of all the circumstances characterising the situation, that the Commission had committed a manifest error of assessment with regard to the discretionary power which it normally enjoys in a situation where it must carry out analyses and make choices of a technical nature.

30

At the conclusion of that examination, it held, in paragraph 97 of that judgment, that, taking account in particular of the technical complexity of the problems to be resolved, ‘the Commission [had] not manifestly and gravely disregard[ed] the limits on its discretion’ and, in paragraph 99 of the judgment, that the condition for establishing the non-contractual liability of the European Union, that the breach of the rule of law must be sufficiently serious, was not met.

31

It follows from the foregoing considerations, first, that the General Court addressed the plea that the Commission’s infringement of the essential element of the enabling act, constituted by the prohibition on adopting a testing method with an empty receptacle, was sufficient to amount to a ‘sufficiently serious breach’ by making an assessment to the contrary and setting out the reasons for that assessment. Consequently, the General Court did not fail to comply with its obligation to state reasons in that regard.

32

Second, the General Court did not infringe the res judicata authority attached to the judgment in annulment when it examined the factual circumstances of the error committed by the Commission in disregarding the essential element of the enabling act constituted by the criterion relating to ‘information … on the consumption of energy … during use’, in the third subparagraph of Article 10(1) of Directive 2010/30, in order to determine whether that error was a sufficiently serious breach of a rule of law intended to confer rights on individuals.

33

In fact, the General Court took as the premiss for its reasoning the finding arising from that judgment that the Commission did not have any discretion allowing it to exceed the powers conferred on it, while proceeding to carry out, as to the remainder, an assessment of the concept of a ‘sufficiently serious breach’, distinct from that made in the action for annulment which it had previously determined.

34

The first limb of the first ground of appeal must therefore be rejected as unfounded.

35

The appellants submit, first, that the General Court erred in law by finding in paragraph 82 of the judgment under appeal that it was necessary to ascertain whether the Commission had committed a manifest and serious breach of the limits on its discretion by preferring an empty-receptacle testing method over the dust-loaded receptacle testing method. The appellants argue that that finding shows that when the General Court assessed whether the error committed by the Commission was excusable, it considered that the Commission was faced with the choice of either the testing method in Section 5.9 of the Cenelec standard or that of the empty receptacle. The appellants state that such a choice did not exist since the Commission was precluded from using the latter method. The Commission could have used any other dust-loaded receptacle testing method or it could have taken the initiative to propose an amendment to Directive 2010/30 in order to remove the criterion that the information should reflect the consumption of a product ‘during use’.

36

Furthermore, the judgment under appeal is vitiated by a failure to state reasons inasmuch as the General Court held that the issue of the scientific validity of the testing method in Section 5.9 of the Cenelec standard was decisive, without providing any further explanation and even though the Commission had not shown that it doubted the validity of that method at the material time.

37

Lastly, the appellants allege distortion of the evidence and infringement of the rules on the burden of proof, referring to considerations set out in that regard in the fourth ground of appeal.

38

The Commission contests the merits of these complaints.

39

In paragraph 46 et seq. of the judgment under appeal – when assessing whether the infringement of EU law that had justified the annulment of the regulation at issue could be classified as sufficiently serious in the light of the complexity of the situation to be regulated and whether the error made was inexcusable or intentional – the General Court examined the context in which the Commission had committed the error of using an empty-receptacle testing method rather than one with a dust-loaded receptacle; it took into account the specific circumstances surrounding the drafting and adoption of the regulation at issue, in particular as regards the work carried out in order to establish a testing method, that is to say by having regard to the factors which, according to the General Court, the Commission had actually taken into consideration. The General Court therefore did not seek in paragraph 82 of that judgment to build an exhaustive picture of the options available to the Commission but merely assessed whether, in the specific context of the adoption of the regulation at issue, the Commission had committed a sufficiently serious breach of the rule of law in question.

40

The first complaint, criticising the General Court for finding that the Commission was faced with a binary choice, is therefore based on an incorrect reading of the judgment under appeal.

41

As regards the second complaint, the General Court held in paragraph 82 of the judgment under appeal that ‘the question whether the testing method [in] Section 5.9 of the Cenelec standard is scientifically and technically correct is irrelevant in the present case’. There is thus no basis for the appellants’ claim that the General Court failed to provide a sufficient statement of reasons for the assertion that the issue of the scientific validity of that testing method was decisive.

42

Lastly, it must be held that the appellants’ complaints related to distortion of the evidence and breach of the rules on the burden of proof do not provide the necessary details, in the present ground of appeal, to enable an assessment of their merits.

43

It follows from the foregoing that the second limb of the first ground of appeal must be rejected, as must, consequently, that ground in its entirety.

44

By their second ground of appeal, the appellants submit that the General Court erred in law by failing to hold that the fact that the infringed rule did not confer any discretion on the Commission was fundamental and decisive in order to find a sufficiently serious breach. They base this ground of appeal on five contextual factors which they consider to be determinative on their own, namely (i) the fact that the requirement that the information had to relate to the product’s consumption during use was an essential element of Directive 2010/30, which had been laid down in order to limit the Commission’s discretion; (ii) the importance of the objective of protection of the environment pursued by that directive; (iii) the fact that the abovementioned requirement was essential for achieving that objective; (iv) the fact that the Commission was aware of the misleading nature of the testing method used; and (v) the fact that manufacturers were unable to provide other information to supplement that given by the energy labels.

45

In any event, even if it were assumed that other factors could also have been taken into account, such as difficulties of interpretation or regulatory complexity, the General Court should have weighed those factors against failure to comply with a non-discretionary requirement, which could not be outweighed by other considerations.

46

The Commission disputes the merits of this ground of appeal.

47

It should be observed that the conditions that must be satisfied in order for the European Union to incur non-contractual liability, under the second paragraph of Article 340 TFEU, include the requirement of a sufficiently serious breach of a rule of law that is intended to confer rights on individuals (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 29 and the case-law cited).

48

That test is satisfied where a breach is established which implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 30 and the case-law cited).

49

Accordingly, the identification of such a breach presupposes that an irregularity is found that would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 43).

50

In order to determine whether a breach of a rule of EU law is to be regarded as sufficiently serious, reference must be made to the field, circumstances and context in which the institution acts (see, to that effect, judgment of 4 April 2017, Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 40 and the case-law cited).

51

The factors to be taken into consideration in that connection are, inter alia, the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU authorities (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 30 and the case-law cited), the complexity of the situation to be regulated, difficulties in the application or interpretation of the legislation (judgment of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 50 and the case-law cited), and whether any error of law was excusable or inexcusable (judgment of 4 December 2003, Evans, C‑63/01, EU:C:2003:650, paragraph 86 and the case-law cited).

52

It follows from the case-law of the Court of Justice referred to in paragraphs 48 to 51 above that, as the Advocate General observed in point 91 of her Opinion, the measure of discretion left by the rule of law breached to the EU authority is only one of the factors to take into consideration in order to determine whether that authority committed a sufficiently serious breach of that rule. While that is a relevant factor, which must be assessed in every case, the fact that the provision breached does not leave any discretion does not necessarily mean that that breach is sufficiently serious.

53

Depending on the circumstances of each case, other factors may be taken into account, having regard to the context in which the infringement was found to have been committed. Accordingly, a breach of a rule of law that leaves no discretion to the authority concerned may not appear, in the light of the circumstances, to be manifest and therefore sufficiently serious, in particular if it results from an error of law that may be excused by having regard to difficulties interpreting the legislation containing that rule.

54

Consequently, while simply infringing EU law may in certain situations establish the existence of a sufficiently serious breach when the rule infringed left the EU authority which committed that infringement only a reduced or even no discretion, such a finding may only follow from all the circumstances surrounding that infringement, where examination of those circumstances does not disclose any other relevant factor that may make it possible to find that the breach of that limit on discretion was not manifest and serious.

55

In the judgment under appeal, as stated in paragraph 22 thereof, the General Court first determined whether the Commission enjoyed any discretion as regards compliance with the requirement that the information had to relate to the product’s consumption during use, finding, in paragraph 36 of that judgment, that it did not. It then held, in paragraphs 37 and 38 thereof, in essence, that that finding was not sufficient by itself to justify the conclusion that there had been a sufficiently serious breach of the provision infringed and identified a set of factors which it considered relevant for ruling on whether had been such a breach, namely the complexity of the situations to be regulated, the difficulties in the application or interpretation of the legislation, the degree of clarity and precision of the rule breached, and whether the error made was inexcusable or intentional. It then took account of the circumstances of the case before finding, in paragraph 97 of the judgment, that the Commission had not manifestly and gravely disregarded the limits on its discretion.

56

It follows from the findings set out in paragraphs 53 to 55 above that the General Court, in so doing, did not err in law.

57

Furthermore, it follows from paragraph 54 above that determination of the relevant factors for evaluating the existence of a sufficiently serious breach is an assessment that, save for errors of law, may be challenged in an appeal only on the ground of distortion. However, in the present ground of appeal the appellants merely implicitly raise other factors which, in their opinion, were decisive, as opposed to the factors taken into account by the General Court.

58

It follows from all the foregoing considerations that the second ground of appeal must be rejected.

59

The third ground of appeal concerns paragraphs 42, 43 and 45 of the judgment under appeal. The first limb of this ground alleges, in essence, disregard for the concept of a ‘sufficiently serious breach’ of a rule of EU law, owing to the fact that factors subsequent to the adoption of the regulation at issue were taken into account; the second limb claims infringement of the res judicata authority attached to the judgment in annulment.

60

In the first place, the appellants submit that the General Court was not entitled to refer to the course of the annulment proceedings relating to the regulation at issue in order to assess whether there were difficulties in the application or interpretation of the legislation which governed the adoption of that regulation. In addition, they contest the manner in which it carried out that assessment.

61

They argue, first, that the General Court erred in law by taking account of circumstances other than those in which the Commission acted at the time it adopted the regulation at issue, since no conclusions may be drawn from circumstances that arise later. Second, the fact that the Court of Justice, by the appeal judgment, referred the action for annulment back to the General Court for examination did not disclose any legal complexity since that latter court simply held in the judgment in annulment that the decision to use an empty-receptacle testing method infringed the enabling act and that the purported inability to use a dust-loaded receptacle testing method was irrelevant in that regard.

62

In the second place, they argue that paragraph 68 of the appeal judgment does not show that it was necessary, in order to rule on the action for annulment in so far as it was based on an infringement of Article 10(1) of Directive 2010/30, to carry out a balancing exercise between the obligation to adopt a testing method reflecting actual conditions of use and that of ensuring the accuracy of the test results. On the contrary, the judgment in annulment shows that those two obligations were cumulative. The General Court’s assessment that there were difficulties of interpretation linked to the complexity and lack of precision of the relevant provisions of that directive is therefore based on breach of the res judicata authority attached to the judgment in annulment and on misinterpretation of the appeal judgment.

63

The Commission contests the merits of both limbs of this ground of appeal.

64

As regards the first limb of the third ground of appeal, it should be observed that since the degree of seriousness of the breach of a rule of EU law committed by the institution at issue is intrinsically linked to that breach, it cannot be assessed by reference to a time different from the time when the breach was committed. It follows that the existence of a ‘sufficiently serious breach’ must necessarily be assessed on the basis of the circumstances in which the institution acted on that particular date (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraphs 45 and 46).

65

Although the absence or existence of difficulties in applying and interpreting the legislation governing the adoption of the act constituting a breach of a rule of EU law must be assessed in the light of the wording of the rule in question and by reference to the time when the act at issue was adopted, there is nothing, however, to prevent it from being assessed by reference to relevant case-law, on account of the guidance which it contains (see, by analogy, judgment of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 59). Depending on the circumstances, that may concern guidance in rulings that follow the adoption of the act at issue, whether they are such as to disclose the absence of difficulties in interpreting the legislation infringed by that act, such as a ruling finding that that legislation constitutes an acte clair, or, on the contrary, the existence of such difficulties, such as a ruling clarifying the scope of that legislation or rulings which differ on how it is to be interpreted.

66

Such case-law existed in the present case since the third subparagraph of Article 10(1) of Directive 2010/30 was a decisive provision in the annulment proceedings related to the regulation at issue.

67

Consequently, the General Court was entitled, without erring in law, to find it relevant to refer in essence, in paragraphs 40 to 45 of the judgment under appeal, to the rulings made in the annulment proceedings, first by the Court of Justice on appeal and then by the General Court upon referral, including therefore the grounds in the appeal judgment relating to the referral of the case back to the General Court, in order to rule on whether compliance with the third subparagraph of Article 10(1) of Directive 2010/30 raised complex issues and difficulties in application or interpretation with respect, in particular, to the degree of clarity and precision of that provision as regards the meaning of the words ‘during use’.

68

The first limb of the third ground of appeal must thus be rejected as unfounded.

69

As regards the second limb of this ground of appeal, it should be observed that, in paragraphs 41 to 44 of the judgment under appeal, the General Court examined the grounds of the judgment in annulment in the light of the appeal judgment. In that regard, it stated, in paragraph 42 of the judgment under appeal, that it was apparent from the appeal judgment that it was necessary to balance, on the one hand, the obligation to adopt a method of calculation which made it possible to measure the energy performance of vacuum cleaners in conditions as close as possible to the actual conditions of use, requiring the vacuum cleaner’s receptacle to be filled to a certain level, and, on the other hand, the requirements concerning the scientific validity of the results obtained and the accuracy of the information supplied to consumers, which had made it necessary to refer the case back to the General Court for a ruling on whether there had been an infringement of the provision concerned. It then found, in paragraphs 43 and 44 of the judgment under appeal, that the General Court, in the judgment in annulment, had interpreted the grounds of the appeal judgment as meaning that that obligation and those requirements constituted two cumulative conditions, such that failure to comply with the first of them was sufficient to find an infringement of that provision and thus to annul the regulation at issue.

70

The General Court thus concluded, in paragraph 45 of the judgment under appeal, that those factors set out in the reasoning showed that the application of Article 10(1) of Directive 2010/30 to the specific case of vacuum cleaners was such as to give rise to certain differences of assessment, indicating difficulties of interpretation in the light of the degree of clarity and precision of that provision and, more generally, of Directive 2010/30 as a whole.

71

In so doing, the General Court did not disregard the authority of res judicata attached to the annulment judgment. It did not base its assessment on that judgment alone but compared the reasoning behind that judgment with the reasoning behind the appeal judgment. The appellants’ argument – that the judgment annulling the regulation at issue shows there was no complexity in the legal context, contrary to the view taken by the General Court – must be rejected for the same reason, since the assessment complained of does not relate to an evaluation of that judgment by itself but concerns a comparison of that latter judgment with the appeal judgment. Moreover, the assessments made by the General Court in the judgment in annulment, as part of an action for annulment, and in the judgment under appeal, in an action for damages, are different in nature. In the judgment in annulment the General Court was required to rule solely on a breach of a rule of EU law and not on a ‘sufficiently serious breach’.

72

Consequently, the second limb of the third ground of appeal must also be rejected as unfounded, as must, therefore, the third ground of appeal in its entirety.

73

The fourth ground of appeal, which consists in essence of eight limbs, alleges infringement in several respects of the concept of a ‘sufficiently serious breach’ of a rule of EU law, concerning the assessment criterion related to the complexity of the situations to be regulated.

74

The appellants submit that the General Court erred in law by finding in paragraph 52 of the judgment under appeal that the issue of the scientific validity of the testing method in Section 5.9 of the Cenelec standard was relevant for assessing the complexity of the regulatory context. Since it had been established that the Commission had disregarded an essential element of Directive 2010/30, it was legally irrelevant to examine in addition whether the Commission had had legitimate doubts about that method. The General Court’s reasoning is flawed further in that regard in that it held that the Commission had been faced with the alternative of choosing between an irregular testing method, because it was carried out with an empty receptacle, and the testing method in Section 5.9 of the Cenelec standard.

75

The Commission contests the merits of this limb.

76

It should be observed that, in accordance with the case-law referred to in paragraph 51 above, the complexity of the situation to be regulated is a relevant factor for determining whether a breach of a rule of EU law may be classified as sufficiently serious.

77

In addition, it must be pointed out, first, that the General Court expressly stated in paragraph 52 of the judgment under appeal that, in order to rule on the arguments put forward by the applicants, it was necessary to determine whether the Commission had been entitled to reject the use of the testing method in Section 5.9 of the Cenelec standard in view of doubts surrounding the scientific validity of the results obtained and the accuracy of the information supplied to consumers. It is apparent from paragraphs 46, 47, 49 and 50 of that judgment that the applicants had argued that the use of a testing method with a dust-loaded receptacle did not give rise to any particular complexity and that the testing method in Section 5.9 of the Cenelec standard was scientifically valid, in particular as regards the requirements of the accuracy, reliability and reproducibility of the measurements.

78

Second, it is apparent from the appeal judgment, in particular from paragraphs 19 to 42, 68, 70 and 83 thereof, that the issue of the reproducibility of the measurements performed by means of the method set out in Section 5.9 of the Cenelec standard, linked to the scientific validity of the results obtained and the accuracy of the information provided to consumers, was an important aspect of the proceedings related to the action in annulment, both before and after that judgment’s clarification of the meaning of the words ‘during use’ in the third subparagraph of Article 10(1) of Directive 2010/30. That issue had been debated before the General Court in the first stage of that action and it is apparent from paragraphs 68 and 70 of the aforementioned judgment that it remained of relevance.

79

The General Court therefore did not err by deciding to examine the complexity of the situation to be regulated and, in that context, by taking the aforementioned issue into consideration.

80

As to the remainder, it is apparent from the answer given to the first ground of appeal that the appellants’ complaint that the General Court incorrectly considered that the Commission was faced with a choice is based on an incorrect reading of the judgment under appeal.

81

The first limb of the fourth ground of appeal must thus be rejected as unfounded.

82

By the second limb of their fourth ground of appeal, the appellants allege distortion of the evidence, breach of the rules on the burden of proof and failure to state reasons. They argue that the Commission has not shown that when the regulation at issue was adopted it had doubts about the scientific validity of the results obtained and the accuracy of the information supplied to consumers by means of the testing method in Section 5.9 of the Cenelec standard. Consequently, in the absence of evidence in that regard, the General Court was not entitled to find in paragraph 52 of the judgment under appeal that such doubts existed. The General Court is also criticised for failing to provide reasoning as to why consideration of the complexity of the situation to be regulated depended on ‘whether the [Commission] had … rejected the scientific validity of only one way of dust-loading’.

83

In the fourth limb, which it is appropriate to examine together with the second, the appellants submit that in paragraph 60 of the judgment under appeal the General Court erred by considering Article 7 of the regulation at issue to be a relevant factor. By a first complaint, they allege distortion of that article, which does not amount to a ‘statement’ by the Commission about not using the testing method in Section 5.9 of the Cenelec standard owing to doubts about its scientific validity. On the contrary, the article in question confirms that when the regulation at issue was adopted the Commission had still not assessed whether it was possible to use measurement methods with dust-loaded receptacles.

84

By their second complaint, the appellants submit that the General Court ruled ultra petita and infringed their rights of defence in taking Article 7 into consideration given the lack of evidence that the Commission had assessed that testing method.

85

The Commission disputes the merits of the complaints made in these two limbs.

86

As regards the second limb of the fourth ground of appeal, it should be observed that the General Court stated in paragraph 60 of the judgment under appeal that:

‘It follows from Article 7 of [the regulation at issue] that the Commission found, in the light of the state of technological knowledge, that the testing method [in Section 5.9 of the Cenelec standard] could not be adopted under Article 10(4)(b) of Directive 2010/30. Such an exclusion must be interpreted as meaning that the Commission, for the purposes of assessing the energy performance of vacuum cleaners, implicitly considered that that testing method did not constitute a reliable, accurate and reproducible measurement and calculations method, within the meaning of Article 5 of [the regulation at issue]. Thus, the Commission preferred to opt for an empty-receptacle testing method which, although reflecting a narrower range of use than a dust-loaded receptacle method, met the criteria of reliability, accuracy and reproducibility.’

87

By those findings, the General Court, first, precisely set out the factors, deriving from the regulation at issue itself, on which it based its finding that the Commission had entertained doubts as to the testing method in Section 5.9 of the Cenelec standard, with no infringement of the rules on the burden of proof being caused by taking those factors into account. Second, it thereby also provided reasons for that conclusion and showed the importance attributed to the contextual factors that led the Commission to reject that method for assessing the complexity of the situation to be regulated, where that decision resulted in the use of a method which subsequently proved to be irregular.

88

However, by the first complaint of the fourth limb, the appellants submit that the findings in paragraph 60 of the judgment under appeal are based on a distortion of Article 7 of the regulation at issue.

89

That article, as referred to by the General Court in paragraph 60 of the judgment under appeal, was worded as follows:

‘The Commission shall review this Regulation in light of technological progress no later than five years after its entry into force. The review shall in particular assess … whether it is feasible to use measurement methods for annual energy consumption, dust pick-up and dust re-emission that are based on a partly loaded rather than an empty receptacle.’

90

It is necessary to state, in the first place, that the General Court was not seeking in paragraph 60 to paraphrase the wording of that provision, but to draw conclusions from it, as is shown by the words ‘it follows from Article 7 of [the regulation at issue]’.

91

In the second place, that paragraph follows various findings made in paragraphs 55 to 58 of the judgment under appeal relating to Directive 2010/30, the regulation at issue and the publication of the Cenelec standard in the Official Journal of the European Union, which provide the context for the subsequent findings, as is shown by the words ‘in that regard’ at the beginning of paragraph 59 of that judgment.

92

Accordingly, first, the General Court observed that Directive 2010/30 required the Commission to use harmonised standards and measurement methods in order to determine the detailed rules for calculating the relevant indicators, such as energy consumption (judgment under appeal, paragraph 55). Second, it referred to various parts of the regulation at issue, namely recital 4 and Article 5, entitled ‘Measurement methods’, which stated that the information to be provided had to be obtained by reliable, accurate and reproducible measurement and calculation methods, which take into account the recognised state-of-the-art measurement and calculation methods, and referring to Annex VI to that regulation. It observed, in particular, that paragraph 1 of that annex referred for that purpose to harmonised standards the reference numbers of which had been published in the Official Journal, stating that those standards had to meet the technical definitions, conditions, equations and parameters set out in that annex (judgment under appeal, paragraph 56). Third and lastly, the General Court stated that references to the Cenelec standard had been published in a communication in the Official Journal, in which it was specified that Section 5.9 of that standard had been excluded from the citation concerned; that meant that, for the purposes of applying Annex VI to the regulation at issue, the harmonised standard for calculating the dust pick-up performance and annual energy consumption of vacuum cleaners was established on the basis of tests with an empty receptacle (judgment under appeal, paragraphs 57 and 58).

93

It follows from all of the factors referred to in paragraphs 90 to 92 above that the conclusions drawn by the General Court from Article 7 of the regulation at issue, when put in their context and as clarified by that context, are not irreconcilable with the wording of that article.

94

As regards the appellants’ assertion that Article 7 of the regulation at issue could be understood as meaning that the Commission had not assessed the testing method in Section 5.9 of the Cenelec standard at the time the regulation was adopted, but had planned to do so subsequently, it must be borne in mind that the fact that part of the file submitted to the General Court may be read differently from the way it was read by that court is not sufficient to show that that latter reading distorts the evidence (see, to that effect, judgment of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732, paragraph 55). It should in addition be found that that article’s use of the words ‘review’ and ‘in the light of technological progress’ means that the interpretation suggested by the appellants is improbable and that it rather, on the contrary, supports the interpretation of the General Court.

95

Lastly, the complaint that the General Court, by means of the findings in paragraph 60 of the judgment under appeal, ruled ultra petita and infringed the appellants’ rights of defence must be rejected on the ground that the General Court, by those findings, merely assessed the meaning of part of the file submitted to it. It must be stated that the regulation at issue was of necessity the central element of the action for damages lodged with the General Court and clearly formed part of that file, that the appellants were familiar with it and that they were able to submit comments on it. Consequently, the General Court had to take that regulation into consideration and, if necessary, draw the conclusions from it that it deemed to be of use for assessing the merits of the parties’ arguments with respect to a factual circumstance related to the complexity of the situation to be regulated.

96

The second and fourth limbs of the fourth ground of appeal must thus be dismissed as unfounded.

97

By the third limb of their fourth ground of appeal, the appellants dispute the statement at the end of paragraph 53 of the judgment under appeal that the Commission had a period of five years, starting on 19 June 2010, to adopt the delegated acts provided for by Directive 2010/30, in accordance with Article 11(1) thereof.

98

First, the appellants submit that the General Court erred when taking that provision into account in its assessment of regulatory complexity since it considered that the resulting ‘time pressure’ could justify the adoption of the regulation at issue with a testing method with an empty receptacle, whereas that provision did not impose any mandatory time limit on the Commission.

99

Second, the General Court erred in considering that the five-year period available to the Commission for the adoption of the regulation at issue had had an impact on the Commission’s conduct, there being no evidence in that regard.

100

The Commission contests the merits of this limb.

101

In paragraph 53 of the judgment under appeal the General Court simply referred to certain parts of the preamble to Directive 2010/30 and its operative part, including Article 11(1) thereof, making no inferences from those provisions.

102

The criticism directed at the General Court, that it thereby considered that that article exercised ‘time pressure’ on the Commission, by requiring it to adopt the regulation at issue within a certain period, is therefore based on an incorrect reading of that paragraph.

103

In addition, in so far as the appellants may be considered to be also referring to the findings in paragraph 95 of the judgment under appeal, it must be held that it is clear from the actual wording of that paragraph that those findings were made for the sake of completeness after the General Court had held in paragraph 94 that, on the basis of all the foregoing considerations, the Commission had been entitled to take the view, without manifestly and gravely exceeding the limits on its discretion, that the testing method in Section 5.9 of the Cenelec standard was not capable of guaranteeing the scientific validity and accuracy of the information supplied to consumers and to opt instead for a testing method suitable for satisfying the criteria of validity and accuracy of the information.

104

In any event, the General Court was justified in making the findings in question, since, irrespective of the Commission’s error of law in relation to the condition laid down in the third subparagraph of Article 10(1) of Directive 2010/30, that institution was entitled to take the view that it was obliged to legislate on vacuum cleaners. Indeed, the second subparagraph of Article 10(1) provided that any product that met the criteria listed in paragraph 2 of that article, which included the product in question, was to be covered by a delegated act of the Commission.

105

The third limb of the fourth ground of appeal must thus be rejected.

106

The fifth limb of the fourth ground of appeal consists of two complaints. By their first complaint, the appellants claim in essence that the General Court, in paragraph 71 of the judgment under appeal, distorted their argument concerning the mandate given by the Commission to Cenelec. By their second complaint, they submit that the General Court neither provided reasoning for the statement in paragraph 68 of that judgment that it would be difficult to develop a method of testing dust pick-up performance based on the use of a dust-loaded receptacle for the purpose of calculating energy performance nor afforded them an opportunity to submit their views in that regard.

107

The Commission contests the merits of these complaints.

108

In paragraph 71 of the judgment under appeal, the General Court referred to a report by Cenelec, described as a final report, in which Cenelec noted that the Commission had decided not to adopt the procedure relating to dust pick-up performance on carpets and hard floors for the purposes of implementing the regulation at issue. The General Court noted that although that body had stated that that procedure was part of the Cenelec standard, it concerned various paragraphs of that standard which did not form part of the harmonised standards referred to in point 1 of Annex VI to that regulation. It thereby concluded that the appellants’ arguments relating to those points were irrelevant for the purpose of determining whether the Commission was entitled to reject the use of the testing method in Section 5.9 of the Cenelec standard without manifestly and gravely disregarding the limits on its discretion.

109

By their first complaint, the appellants submit in essence that by so doing the General Court misinterpreted the argument they had put forward, which they identify as ‘Dyson’s only submission in relation to [the M353 mandate]’.

110

It must be stated that the appellants do not specify the passage or passages in their written pleadings which were distorted by the General Court and they therefore do not make it possible for the Court of Justice to assess the merits of their claims.

111

The first complaint must therefore be rejected as inadmissible.

112

By their second complaint, the appellants submit that the General Court failed to provide reasoning for its assessment in paragraph 68 of the judgment under appeal that it would be difficult to develop a method of testing the dust pick-up performance of vacuum cleaners based on the use of a dust-loaded receptacle for the purpose of calculating energy performance.

113

However, it must be observed that the General Court, in paragraph 72 of the judgment under appeal, stated that ‘one of the difficulties inherent in [the] testing method [in Section 5.9 of the Cenelec standard] was the need to define in advance what constitutes a dust-loaded receptacle’, and, in paragraph 73 of the judgment, that that method ‘contains three possible definitions of what may be understood by “dust-loaded receptacle”’. In paragraphs 75 to 79 of that judgment, it then referred to the minutes of the work of the International Electrotechnical Commission (IEC) and the note preceding the description of the testing method in Section 5.9 of the Cenelec standard, documents which predated the adoption of the regulation at issue and which were considered by the General Court as supporting the Commission’s assertion that the approach of adopting three possible definitions of a dust-loaded receptacle was not capable of ensuring uniformity and comparability of results, since it could involve different filling levels depending on the vacuum cleaner in question.

114

By those findings the General Court provided reasoning for the statement in paragraph 68 of the judgment under appeal to the requisite legal standard.

115

The appellants, furthermore, do not claim that General Court based its finding on evidence that did not appear in the file submitted to it and on which they were unable to comment.

116

It follows that the second complaint must be rejected as unfounded in its entirety, such that the fifth limb must be rejected as in part inadmissible and in part unfounded.

117

The sixth limb of the fourth ground of appeal comprises seven complaints.

118

By their first complaint, the appellants claim, first, that the General Court distorted the testing method in Section 5.9 of the Cenelec standard by stating, in paragraph 73 of the judgment under appeal, that it contains three possible definitions of what is to be understood by ‘dust-loaded receptacle’. They maintain that that method contains a single definition with three conditions.

119

Second, they submit that the General Court could not hold that the Commission was justified in rejecting that method on the ground that it contained three end points, even though Commission Regulation (EU) No 666/2013 of 8 July 2013 implementing Directive 2009/125/EC of the European Parliament and of the Council with regard to ecodesign requirements for vacuum cleaners (OJ 2013 L 192, p. 24) provided that tests relating to the operational motor lifetime of vacuum cleaners were to be carried out with a 50% dust-loaded receptacle, which was a variant of that same method, with the Commission not having expressed any doubts about its scientific validity.

120

The Commission contests the merits of this complaint.

121

It must be held that the complaint of distortion of the testing method in Section 5.9 of the Cenelec standard is based on an incomplete reading of the relevant passage in the judgment under appeal.

122

First, in paragraph 72 of that judgment, the General Court stated that that method consists of measuring dust pick-up as the machine sucks in test dust until one of the three pre-set conditions is met, namely when an indicator on the vacuum cleaner signals that the dust receptacle should be emptied or replaced, when the observed pressure inside the appliance has dropped by 40% compared with the pressure recorded at the start of the test, or the amount of test dust injected into the appliance has reached 100 grams per litre of the ‘maximum usable volume’ of the dust receptacle. It was only as a second step that the General Court stated, in paragraph 73 of that judgment, by way of an explanation, that that method thus ‘contain[ed] three possible definitions of what may be understood by “dust-loaded receptacle”’. That explanation, based on the words ‘possible definitions’, cannot be equated to a reading that is in manifest contradiction with the relevant passage of Section 5.9 of that standard.

123

As regards the second argument, the General Court pointed out in paragraph 93 of the judgment under appeal that the types of measurement concerned by the regulation at issue and by Regulation No 666/2013 were not comparable, since, unlike energy performance measures, the motor sustainability test foreseen in the latter regulation did not require an examination of the relationship between dust pick-up performance and energy consumption.

124

The first complaint must therefore be rejected as unfounded.

125

By their second complaint, the appellants submit that the General Court distorted the note preceding the description of the testing method in Section 5.9 of the Cenelec standard by means of various findings in paragraphs 76 to 79 of the judgment in question.

126

The Commission contests the merits of this complaint.

127

The appellants submit that the note concerned does not contain various elements that are set out in the findings relating to that note in paragraphs 77 and 78 of the judgment under appeal. However, as is apparent from reading those paragraphs, the General Court did not intend to reproduce passages from that note in those paragraphs, even in reformulated manner, but to point to the subject matter of that note and to draw certain practical consequences from those passages with respect to the usefulness of the method in question in the light of other factors that it had previously identified. In addition, in making those findings, the General Court did not manifestly exceed the limits of a reasonable assessment of that note.

128

As regards paragraph 79 of the judgment under appeal, the appellants simply make an inference, which is incorrect, that the General Court may have stated in that paragraph that the testing method in Section 5.9 of the Cenelec standard was invalid, whereas it merely paraphrased a passage in the note concerned without drawing any conclusions from it.

129

The second complaint must therefore be rejected as unfounded.

130

By their third complaint, the appellants claim that the General Court, in paragraph 85 of the judgment under appeal, distorted the report of the company AEA Energy & Environment entitled ‘Report to the Commission, Preparatory studies for Eco-Design Requirements of EUPs (II), Lot 17 Vacuum Cleaners’, dated February 2009.

131

The Commission contests the merits of this complaint.

132

In paragraph 82 of the judgment under appeal, in the context of the examination of the complexity of the situation to be regulated and whether the error committed by the Commission was inexcusable or intentional, the General Court considered that the relevant issue was whether the Commission, by preferring the empty-receptacle testing method over the dust-loaded receptacle testing method, had committed a manifest and serious breach of the limits on its discretion. The General Court also found, in the light of the elements set out in the preceding paragraphs of that judgment, that, although the testing method in Section 5.9 of the Cenelec standard made it possible to assess the performance of vacuum cleaners under conditions of use which were closer to normal conditions of use than those reflected by the use of an empty receptacle, that method created uncertainty as to the accuracy of the information intended to be supplied to consumers. It added in paragraph 83 of that judgment that other elements supported that finding, which it listed and commented on in paragraphs 84 to 91 of the judgment.

133

It is thus apparent that the findings on those other elements, including those in paragraph 85 of the judgment under appeal, are for the sake of completeness.

134

The third complaint must therefore be rejected as ineffective.

135

By their fourth complaint, the appellants submit that the judgment under appeal is vitiated by contradictory reasoning.

136

They submit that the General Court held, in paragraphs 76 to 79 of that judgment, that the Commission had doubts about the scientific validity of the testing method in Section 5.9 of the Cenelec standard, which cannot be reconciled with the statements in paragraphs 81 and 82 of that judgment that, first, ‘it follows from the nature of the standardisation process that the fact that a testing method has been incorporated into a harmonised standard, such as the Cenelec standard, means that that method can be presumed to be scientifically and technically valid’ and, second, that ‘the question whether the testing method [in Section 5.9 of the Cenelec standard] is scientifically and technically correct is irrelevant in the present case, since the Commission did not dispute those elements when it adopted [the regulation at issue]’.

137

The Commission contests the merits of this complaint.

138

It must be held that this complaint is based on an incorrect reading of the judgment under appeal. Paragraphs 76 to 79 of that judgment do not have the significance which the appellants attribute to them, since the General Court merely reviewed in those paragraphs the content of a note from Cenelec concerning the difficulty in determining the level to which a vacuum cleaner receptacle should be filled and which can serve as a reference for measuring its performance, as identified in paragraphs 72 and 73 of the judgment.

139

The fourth complaint must therefore be rejected as unfounded.

140

By their fifth complaint, the appellants submit that the General Court, in paragraphs 75 and 87 of the judgment under appeal, wrongly took into consideration documents which, as acknowledged by the Commission, were not in the possession of its officials who drew up the legislation concerned. They refer, in that regard, to paragraphs 5 to 15 of the defence lodged by the Commission in the proceedings before the General Court.

141

The Commission contests the merits of this complaint.

142

In paragraph 15 of its defence in the proceedings before the General Court, the Commission stated that ‘the elements described above led to … the adoption of the [regulation at issue]’. The documents cited in paragraphs 75 and 87 of the judgment under appeal do not appear among the elements thereby referred to.

143

However, it must be observed that, contrary to what is claimed by the appellants, the statement in paragraph 15 of that written pleading did not mean that the Commission’s services were only familiar with the elements mentioned in the preceding paragraphs thereof at the time the regulation at issue was adopted. Accordingly, it cannot, for example, be considered that the Commission was not aware of the impact assessment that it had had carried out or of the consultations which it had organised with a view to the adoption of that regulation, even though that analysis and those consultations are not referred to in the passage in question of those submissions.

144

The fifth complaint, which is thus based on an incorrect premiss, must consequently be rejected as unfounded.

145

By their sixth complaint, the appellants submit that, in paragraphs 86 to 91 of the judgment under appeal, the General Court took irrelevant elements into account since they post-dated the adoption of the regulation at issue.

146

The Commission contests the merits of this complaint.

147

It must be observed that this complaint concerns reasoning included in the judgment under appeal for the sake of completeness, as is apparent from paragraphs 132 and 133 above, which the General Court set out only in order to confirm the findings it had previously made on the basis of factors that concerned the circumstances in which the Commission had acted at the time it adopted the regulation at issue.

148

Consequently, the sixth complaint must be rejected as ineffective.

149

By their seventh and final complaint, the appellants complain that the General Court distorted the evidence and adopted contradictory reasoning in finding in paragraph 82 of the judgment under appeal that the Commission, when adopting the regulation at issue, had considered and dismissed the scientific validity of the testing method in Section 5.9 of the Cenelec standard. First, they contend that that conclusion is not supported by any evidence. Second, the General Court had held at the beginning of the same paragraph that the Commission had not disputed the scientific validity of that method.

150

The Commission contests the merits of this complaint.

151

Paragraph 82 of the judgment under appeal is worded as follows:

‘…, the question whether the testing method set out in Section 5.9 of the Cenelec standard is scientifically and technically correct is irrelevant in the present case, since the Commission did not dispute those elements when it adopted [the regulation at issue], but considered, in essence, that that testing method was inappropriate for the purposes of assessing the energy performance of vacuum cleaners in the light of the criteria of reliability, accuracy and reproducibility. …’

152

It must be held that those statements do not show that the General Court considered that the Commission had dismissed the scientific validity of that method, such that the premiss underlying the appellants’ complaint is incorrect.

153

Consequently, the seventh complaint is unfounded and must therefore be rejected, as must the sixth limb of the fourth ground of appeal in its entirety.

154

By the seventh limb of their fourth ground of appeal, which concerns paragraph 92 of the judgment under appeal, the appellants submit that the General Court ruled ultra petita in finding that the legislation on the labelling of vacuum cleaners was not comparable to that on the labelling of other household appliances, which thus increased the complexity of the situation to be regulated, whereas the Commission had made no claim that only vacuum cleaners presented challenges with regard to simulated loading. The General Court also failed to state reasons for that assessment and did not provide any possibility for the appellants to present their views on that issue.

155

The Commission contests the merits of this limb of the ground of appeal.

156

Paragraph 92 of the judgment under appeal is worded as follows:

‘Those difficulties, which relate specifically to the technology and use of vacuum cleaners, also allow the Court to reject the applicants’ claim that the Commission was not faced with a complex situation since it had already had the chance to adopt, for the purposes of energy labelling, test standards reflecting the normal conditions of use of electrical appliances for domestic use such as ovens, washing machines, tumble dryers and water heaters.’

157

It follows from the wording employed by the General Court, first, that it intended by the considerations set out in that paragraph to address an argument made by the appellants and, second, that it was referring to all the findings it had made beforehand relating to the specific issues raised by vacuum cleaners, in particular as regards the variability of receptacle loads and the complexity of developing a testing method which takes that factor into account while being reproducible, when compared with the other products mentioned in that paragraph.

158

In so doing the General Court neither ruled ultra petita nor infringed the defence rights of the appellants. It also provided reasoning for rejecting their argument to the requisite legal standard.

159

The seventh limb of the fourth ground of appeal must thus be rejected as unfounded.

160

The eighth and final limb of the fourth ground of appeal alleges failure to address the appellants’ argument that the testing method in Section 5.9 of the Cenelec standard had been accepted by the Commission in the framework of Regulation No 666/2013 but that the Commission had rejected that method in the regulation at issue. The appellants argued in that regard that those two regulations subjected the testing methods to the same requirement of scientific validity, such that by using the testing method in Section 5.9 of the Cenelec standard in Regulation No 666/2013, the Commission had recognised its scientific validity. However, the General Court merely found that the appellants were not justified in drawing an analogy between those regulations owing to differences between measures of energy performance and tests of sustainability and it thus did not address their argument.

161

The Commission contests the merits of this limb.

162

It should be borne in mind that the General Court, in paragraph 82 of the judgment under appeal, held that, contrary to what was claimed by the applicants, the question whether the testing method in Section 5.9 of the Cenelec standard was scientifically correct was irrelevant in the case at hand. By those findings, the General Court, on any view, addressed the appellants’ argument as they frame it in the appeal.

163

Consequently, the eighth limb of the fourth ground of appeal must also be rejected, as must, therefore, that ground of appeal in its entirety.

164

By their fifth to seventh grounds of appeal, the appellants criticise the General Court’s findings that the unlawful acts alleged in support of their action for damages – apart from infringement of the third subparagraph of Article 10(1) of Directive 2010/30 – do not amount to ‘sufficiently serious breaches’. Those other unlawful acts are, respectively, breach of the principle of equal treatment, breach of the principle of sound administration and the duty to act diligently, and breach of the freedom to conduct a business.

165

The Commission disputes the merits of these grounds of appeal.

166

The three pleas in the action for damages relating to alleged breaches of the principles of equal treatment and sound administration, of the duty to act diligently and of the freedom to conduct a business, set out respectively in paragraphs 102 and 109, paragraph 113 and paragraph 120 of the judgment under appeal, were essentially based on the fact that the Commission had opted for a testing method with an empty, unloaded receptacle, disregarding an essential element of Directive 2010/30, those other breaches being consequences of the infringement of the third subparagraph of Article 10(1) of that directive. They were therefore based on the same context as the infringement of that latter provision.

167

In addressing each of those three pleas, the General Court, inter alia, referred in full or in part to its assessment related to the infringement of the third subparagraph of Article 10(1) of Directive 2010/30, at the end of which it found that that infringement did not constitute a sufficiently serious breach of a provision of EU law, an assessment that has been unsuccessfully challenged in the first four grounds of the present appeal.

168

As is apparent from paragraphs 50 and 51 above, a finding of a sufficiently serious breach of a rule of EU law intended to confer rights on individuals depends on the relevant factors seen in the light of the context in which that breach was committed.

169

In the present case, since the circumstances that were relied on to support the pleas in the action for damages covered by the fifth to seventh grounds of appeal correspond to the unlawful choice made by the Commission in the regulation at issue, the factual context of the various unlawful acts alleged against the Commission in the action for damages is essentially the same. It thus follows that the findings of the General Court criticised in the present grounds of appeal – that the infringements alleged against the Commission, apart from infringement of the third subparagraph of Article 10(1) of Directive 2010/30, but which arise from that latter breach, were likewise not sufficiently serious – are on any view justified to the requisite legal standard by the General Court’s conclusion that the infringement of the third subparagraph of Article 10(1) of Directive 2010/30 was not sufficiently serious.

170

It follows that the fifth to seventh grounds of appeal must be rejected.

171

Consequently, the appeal must be dismissed in its entirety.

172

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

173

Under Article 138(1) of those rules, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellants have been unsuccessful and the Commission has applied for the costs to be awarded against them, the appellants must be ordered to pay all the costs relating to the present appeal proceedings.

On those grounds, the Court (Fourth Chamber) hereby: