Who does what under Energy Labelling ?

The Energy Labelling regulation attributes a fundamental role to suppliers and to dealers with very different obligations.

Suppliers are defined as

“a manufacturer established in the Union, the authorised representative of a manufacturer who is not established in the Union, or an importer, who places a product on the Union market”.

Dealers are defined as:

‘a retailer or other natural or legal person who offers for sale, hire, or hire purchase, or displays products to customers or installers in the course of a commercial activity, whether or not in return for payment;’

The dealer’s obligations are described here. The responsibilities of different actors are as follows:

The manufacturer established in the EU

The manufacturer is defined as:

‘a natural or legal person who manufactures a product or has a product designed or manufactured, and markets that product under its name or trademark'.

As can be seen, the concept of ‘manufacturer’ is much broader than just the mere fact of manufacturing a product, it encompasses for example the fact of having a product designed or manufactured by a third party, and marketing that product under one’s own name or trademark.

Where subcontracting takes place, the manufacturer must retain the overall control for the product and ensure that he receives all the information that is necessary to fulfil his responsibilities according to the applicable acts.

NB: The manufacturer may appoint an authorised representative with a written mandate to act on its behalf in relation to specified tasks with regard to manufacturer's obligations.

The manufacturer established in the EU, EEA or Northern Ireland

The manufacturer established in the EU who places a product on the Union market is considered as the 'supplier' and is thus responsible for energy labelling, and must comply with all associated obligations (see below).

In addition, by virtue of Article 7 of the Market Surveillance Regulation (EU) 2019/1020, all economic operators shall cooperate with market surveillance authorities regarding actions which could eliminate or mitigate risks that are presented by products made available on the market.

The manufacturer established outside the EU, EEA and Northern Ireland

The manufacturer established outside the EU, EEA and Northern Ireland is not considered ‘supplier’ under Energy Labelling. In the absence of an importer, he must, when placing products on the EU market, appoint an authorised representative in the EU with a written mandate to act on its behalf in relation to all the supplier's tasks.

Although the third country manufacturer has no formal role under Energy Labelling, he must ensure, through its authorised representative or importer, the respect of the energy labelling obligations, e.g. by providing suitable technical documentation, placing energy labels in the boxes of products shipped, taking care of changes intended to be introduced to the unit by means of update, providing all the data needed to be inserted in the database, respecting the rules on visual advertisements and technical promotional material, and providing support when corrective or restrictive actions are required in case of non-compliance. Indeed, without the active collaboration of the third country economic operator, it would be virtually impossible for the authorised representative to ensure compliance with all the applicable rules, with the risk of the product being declared non-compliant by the MSAs and withdrawn from the market.

The importer

The importer is defined as:

'a natural or legal person established in the Union who places a product from a third country on the Union market’.

Under energy labelling, the importer EU who places a product on the Union market is considered as the "supplier" and is thus responsible for energy labelling, and must comply with all associated obligations (see below). In addition, by virtue of Article 7 of the Market Surveillance Regulation (EU) 2019/1020, all economic operators shall cooperate with market surveillance authorities regarding actions which could eliminate or mitigate risks that are presented by products made available on the market.

The authorised representative

The authorised representative is defined as:

‘a natural or legal person established in the Union who has received a written mandate from the manufacturer to act on its behalf in relation to specified tasks ‘

In the case of a third-country manufacturer, in the absence of an importer, the authorised representative must have a written mandate to act in relation to all the supplier's tasks.

The authorised representative has the following obligations:

Perform all the tasks as required in the mandate received by the manufacturer (all supplier’s task if the manufacturer is established in a third country).

In addition, as specified in the Market Surveillance Regulation (EU) 2019/1020, the authorised representative shall:

Provide a copy of the mandate to the market surveillance authorities upon request, in a Union language determined by the market surveillance authority.
Have the appropriate means to be able to fulfil their tasks.
Cooperate with market surveillance authorities regarding actions which could eliminate or mitigate risks that are presented by products made available on the market.

Tasks of the supplier

The main responsibilities of the supplier are outlined below and further detailed in the individual delegated acts:

Ensure that products that are placed on the market are accompanied, for each individual unit, free of charge, with accurate printed labels and with product information sheets.
Deliver printed labels, and product information sheets, to the dealer free of charge, within five working days upon the dealer's request.
Ensure the accuracy of the labels and product information sheets that it provides and produce technical documentation sufficient to enable the accuracy to be assessed.
Before placing a unit of a new model on the EU market, enter in the public and compliance parts of the product database the information for that model, as set out in Annex I of the Regulation.
Indicate in the database when units of the product are no longer placed on the market.
Keep the information concerning that model in the compliance part of the product database for a period of 15 years.
Make reference to the energy efficiency class of the product and the range of the efficiency classes available on the label in visual advertisements or technical promotional material for a specific model/
Cooperate with MSAs and take immediate action to remedy any case of non-compliance with the requirements set out in the regulations which falls under their responsibility, at their own initiative or when required to do so by MSAs.
In case of non-compliance, ensure that all appropriate corrective or restrictive action is taken in respect of all the products concerned that he has made available on the market throughout the Union, where appropriate to withdraw the product from the market, or where appropriate, to recall it within a reasonable period, as instructed by MSAs by virtue of Art 9(2) of the EL Regulation.
Request explicit consent from the customer regarding any changes intended to be introduced to the unit by means of updates that would be detrimental to the parameters of the energy efficiency label for that unit; inform the customer of the objective of the update and of the changes in the parameters, including any change in the label class; give the customer the option of refusing the update without avoidable loss of functionality.

NB: when the supplier is the authorised representative, the references above to placing on the market or making available on the market can be understood as placing or making available on the market by the manufacturer the authorised representative is representing.

Service providers for online platforms

As specified in the Market Surveillance Regulation (EU) 2019/1020, products offered for sale online or through other means of distance sales shall be deemed to be made available on the market if the offer is targeted at end users in the Union. An offer for sale shall be considered to be targeted at end users in the Union if the relevant economic operator directs, by any means, its activities to a Member State.

Information society service providers (e.g. online sales platforms) shall cooperate with the market surveillance authorities, at the request of the market surveillance authorities and in specific cases, to facilitate any action taken to eliminate or, if that is not possible, to mitigate the risks presented by a product that is or was offered for sale online through their services.

In addition, some energy labelling delegated regulations specify that where a hosting service provider (as referred to in Article 14 of Directive 2000/31/EC) allows the direct selling of a product in scope through its internet site, the service provider shall enable the showing of the electronic label and electronic product information sheet provided by the dealer on the display mechanism in accordance with the applicable provisions and shall inform the dealer of the obligation to display them.

Useful Definitions

‘making available on the market’ means the supply of a product for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge;

‘placing on the market’ means the first making available of a product on the Union market;

‘putting into service’ means the first use of a product for its intended purpose on the Union market;