Greenwashing
EU initiative against greenwashing
In general, "greenwashing" is the attempt by organizations to create a "green" or "sustainable" image, particularly through communication and marketing measures, without actually systematically implementing corresponding, sustainability-oriented activities in their operational business.
The discrepancy between "being" and "appearing" is already problematic under current law. At EU level, work is underway on two directives on this topic in order to curb abuse. These are the Green Claims Directive and the Empowering Consumers Directive.
The Anti-Greenwashing Directive ("Directive on empowering consumers for the green transition") is intended to ensure that companies no longer advertise their products or services with terms such as "environmentally friendly", "natural", "biodegradable", "climate neutral" or "ecological" if they do not provide sufficiently recognized evidence of the underlying environmental performance. The directive was adopted on February 28, 2024 and came into force on March 26, 2024. The member states now have two years to transpose the directive into national law
The main thrust of this directive is to enable consumers to make more reliable decisions by providing better protection against unfair practices and better information. In particular, environmental and sustainability claims must be verified, certain claims are prohibited per se and the proliferation of sustainability labels is to be restricted by a certification system.
Directive on green advertising claims" (Green Claims). It was proposed by the EU Commission in March 2023 and is currently being discussed by the committees of the European Parliament. While the currently adopted law contains general rules for the prohibition of certain advertising messages, the Green Claims Directive is intended to set out detailed conditions for the use of environmental claims in corporate communications.
In Germany, for example, the Unfair Competition Act (UWG) has provisions that prohibit such misleading advertising. Violations of this can result in fines or civil liability.
A whole series of judgments by German courts prove that it is already highly problematic to advertise with terms or statements about BIO, Öko, Klimaneutral, LG Kleve (decision of June 22, 2022 - 8 O 44/21), OLG Koblenz (judgment of August 10, 2011 - 9 U 163/11), OLG Koblenz (judgment of August 10, 2011 - 9 U 163/11). This is already the case if, from the advertiser's point of view, the advertising statement was "only" an exaggeration that is customary in the industry. The decision is that this may already be misleading. (OLG Munich, decision of November 21, 2014 - 6 W 2103/14). On green regional electricity OLG Schleswig (judgment of September 3, 2020 - 6 U 16/19), but different OLG Karlsruhe (judgment of December 10, 2008 - 6 U 140/08). Even the Federal Court of Justice (BGH) defined principles for this form of advertising very early on (BGH, judgment of 20.10.1988 - I ZR 238/87 -BGH, judgment of 5.12.1996 - I ZR 140/94).
The EU's initiative shows that it is keen not to rely on judicial interpretation of the law, but now wants to tackle the issue systematically.
