Greenwashing
EU Initiative Against So-Called "Greenwashing"
In general, “greenwashing” refers to organizations’ attempts to project a “green” or “sustainable” image—particularly through communication and marketing efforts—without actually and systematically implementing corresponding sustainability-oriented activities in their day-to-day operations.
The discrepancy between “reality” and “appearance” is already problematic under current law. At the EU level, work is underway on two directives addressing this issue in order to curb such abuse. These are, first, the so-called Green Claims Directive and, second, the Empowering Consumers Directive.
The Anti-Greenwashing Directive (“Directive on Empowering Consumers for the Green Transition”) is intended to ensure that, in the future, companies no longer advertise their products or services using terms such as “environmentally friendly,” “natural,” “biodegradable,” “climate-neutral,” or “ecological” unless they provide sufficiently recognized evidence of the underlying environmental performance. The directive was adopted on February 28, 2024, and entered into force on March 26, 2024. Member states now have two years to transpose the directive into national law
The primary aim 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-related claims must be substantiated; certain claims are prohibited outright; and the proliferation of sustainability labels is to be curbed through a certification system.
"Directive on Green Claims." It was proposed by the European Commission in March 2023 and is currently being discussed by the committees of the European Parliament. While the recently adopted law contains general rules prohibiting certain advertising messages, the Green Claims Directive is intended to establish detailed conditions for the use of environmental claims in corporate communications.
In Germany, for example, the Unfair Competition Act (UWG) contains provisions that prohibit such misleading advertising. Violations of these provisions may result in fines or civil liability.
A whole series of rulings by German courts demonstrates that it is already highly problematic to advertise using terms or statements such as “organic,” “eco,” or “climate-neutral”; Regional Court of Kleve (Order of June 22, 2022 – 8 O 44/21), Higher Regional Court of Koblenz (Judgment of August 10, 2011 – 9 U 163/11), Higher Regional Court of Koblenz (Judgment of August 10, 2011 – 9 U 163/11). This applies even if, from the advertiser’s perspective, the advertising claim was “merely” an exaggeration customary in the industry. The decisive factor is that misleading conduct may already be present in such cases. (Higher Regional Court of Munich, Order of November 21, 2014 – 6 W 2103/14). Regarding green regional electricity: Higher Regional Court of Schleswig (Judgment of September 3, 2020 – 6 U 16/19), but the Higher Regional Court of Karlsruhe took a different view (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 Oct. 20, 1988 – I ZR 238/87 – BGH, judgment of Dec. 5, 1996 – I ZR 140/94).
The EU's initiative shows that it does not wish to rely on judicial development of the law, but rather intends to address the issue systematically.
