Greenwashing, or misleading environmental communication, presents a significant impediment to achieving decarbonisation and sustainability goals and undermines consumers’ ability to make informed choices, diminishing their empowerment as rights holders. Misinformation not only undercuts efforts to protect the environment, but also obstructs the progress made by companies genuinely committed to sustainability.
Many companies operating in the EU published environmental information concerning their activity on a voluntary basis long before such reporting become an obligation, for example in their annual reports. Many did this to promote a positive image of the company and demonstrate their corporate social responsibility engagements. Such an image has increasingly become a source of competitive advantage due to consumers’ growing awareness and scrutiny of environmental impact.
The information disclosed or promoted by a company can relate to environmental characteristics of a product or its environmental impact or, more broadly, to the company’s commitments in the field of sustainability. This information can take different forms: advertising, public statements or through the creation of or subscription to a broad range of labels.
False or misleading information, and also information that does not comply with environmental information obligations, is potentially harmful to consumers, companies and investors and hampers their ability to make ‘greener decisions’. Effective tools are necessary to ensure access to information and to challenge and punish companies providing such misleading information.
Consumers’ access to reliable information on products (or services), such as information relating to environmental impact, is protected primarily by monitoring the fairness of commercial practices, including advertising, as well as through different kinds of certifications, or through obligations related to disclosure of information.
This chapter compares research findings in selected Member States relating to the existing legal framework to enforce consumer rights in the context of green claims and access to information about the environmental impact of products. Sections 1.1 and 1.2 focus on rules on misleading commercial practices, and carbon neutrality claims in particular. Section 1.3 looks at the effectiveness of binding and non-binding regulations on advertising and Section 1.4 provides examples of efforts to introduce reliable environmental labels. Section 1.5 compares findings relating to potential use of the Aarhus Convention by consumers. While not directly related to greenwashing, the relevant provisions of the convention allow the claimants to obtain environmental information held by public authorities, which in specific situations may relate to products or services. Section 1.6 briefly mentions the relevance of due diligence and reporting obligations.
Definitions
According to the Commission’s UCPD guidance, the expressions ‘environmental claims’ and ‘green claims’ refer to the practice of suggesting or otherwise creating the impression (in a commercial communication, e.g. marketing or advertising) that a good or a service has a positive impact or no impact on the environment or is less damaging to the environment than competing goods or services. This may be due to its composition, how it has been manufactured, how it can be disposed of or the reduction in energy or pollution expected from its use.
When such claims are not true or cannot be verified, the practice is called greenwashing. Greenwashing in the context of business-to-consumer relations can relate to all forms of business-to-consumer commercial practices concerning the environmental attributes of products. This can include all types of statements, information, symbols, logos, graphics and brand names, and their interplay with colours, on packaging and labelling, in advertising, in all media (including websites) and made by any organisation, if it qualifies as a ‘trader’ and engages in commercial practices towards consumers.
In several Member States, the prohibition of misleading commercial practices has proven to be a valuable legal measure for consumer or environmental protection organisations to rely on to combat greenwashing practices. This section provides examples of its application in practice.
The prohibition of unfair commercial practices is covered by legislation against unfair competition and is part of the EU acquis. The unfair commercial practices directive (UCPD) distinguishes between two categories of commercial practice that are unfair if they cause the average consumer to make a purchasing decision that they would not have made otherwise: misleading commercial practices (by action or omission) and aggressive commercial practices.
According to the UCPD, business-to-consumer commercial practices cover ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’.
The UCPD aims to enhance consumer trust and facilitate cross-border trade for businesses. It effectively governs and regulates any unfair commercial practices that transpire prior to, during and after business-to-consumer transactions. By enforcing the EU regulations on unfair commercial practices, national authorities and courts can effectively curtail a wide range of unjust business behaviours. These encompass providing consumers with misleading information and employing forceful marketing tactics aiming to manipulate consumers’ decision-making processes.
In December 2021, the European Commission adopted a new Commission notice on the interpretation and application of the UCPD (‘UCPD guidance’). It explains key concepts and rules and includes practical examples to facilitate enforcement for national authorities.
Initially, the UCPD did not provide specific rules on environmental claims. However, in September 2023, the Council and the European Parliament reached a provisional agreement on the proposal for a directive on empowering consumers for the green transition through better protection against unfair commercial practices [4] See the press release ‘Council and Parliament reach provisional agreement to empower consumers for the green transition’, 19 September 2023. . In January 2024, the European Parliament adopted the proposal meaning explicit rules on environmental claims could be included in the UCPD. The proposal intends to prohibit environmental claims ‘if they are not supported by clear, objective and verifiable commitments and targets given by the trader’ and supporting such claims ‘by an independent monitoring system to monitor the progress of the trader with regard to the commitments and targets’. The Council of the European Union adopted the directive on 20 February 2024.
However, the broad definition of commercial practices makes it possible to cover greenwashing, even before EU and national legislators explicitly referred to environmental claims, as confirmed by the 2021 UCPD guidance issued by the Commission.
The general rules on misleading practices can be applied to greenwashing practices when they negatively affect consumers, using a case-by-case assessment. But neither the directive nor its Annex I (the blacklist) contains any specific rules that would explicitly declare such practices to be unfair in all situations.
According to the UCPD guidance, the application of the UCPD to environmental claims can be summarised as follows.
Based on Articles 6 and 7 UCPD, green claims must be truthful, not contain false information and be presented in a clear, specific, accurate and unambiguous manner, so that consumers are not misled.
Under Article 12 UCPD, traders must have the evidence to support their claims and be ready to provide it to competent enforcement authorities in an comprehensible way if the claim is challenged.
Furthermore, Annex I to the UCPD contains a list of unfair practices that are prohibited in all cases. Several points of Annex I relate to specific claims or the use of relevant certifications, labels and codes of conduct for marketing purposes.
The general clause of Article 5(2) UCPD provides for the possibility of assessing unfair commercial practices. It functions as an additional ‘safety net’ to capture any unfair practice that is not caught by other provisions of the UCPD (i.e. that is not misleading, aggressive or listed in Annex I). It prohibits commercial practices that are contrary to the requirements of professional diligence if they are likely to materially distort the economic behaviour of the average consumer.
Turning to national legislation, laws implementing the directive contain corresponding wording. Environmental claims are therefore not explicitly mentioned in the legislation, but rather in relevant interpretative guidance issued by public authorities.
For example, the Belgian Code of Economic Law defines what ‘misleading commercial practices’ are in Article VI.97. To clarify the application of this provision, the Federal Public Service Economy (‘FPS Economy’) published guidelines on environmental claims in May 2022. Within the FPS Economy, the Consumer Protection Service is responsible for legislation regarding unfair commercial practice, together with FPS Public Health and regional governments.
According to the Polish Act on Counteracting Unfair Market Practices, a market practice is unfair if it is contrary to accepted principles of morality and materially misleads or is likely to mislead the behaviour of the average consumer before, during or after the conclusion of a contract.
Under French Consumer Code Article L121-2°(b) and (e), two elements of the definition of misleading commercial practices were deemed relevant to practitioners in the context of environmental claims. They include, inter alia, claims about the essential characteristics of the good or service and the scope of the advertiser’s commitments. This interpretation was confirmed by the new Climate and Resilience Law of 2021, which explicitly refers to the environmental impact of a product or service as being among its essential characteristics.
In addition, in 2014 the French National Consumer Council published its Practical Guide on Environmental Claims for Professionals and Consumers.
The Danish Consumer Ombudsman distinguishes between general and concrete statements. General statements are positive statements about a company or product, for example ‘green’, ‘climate friendly’, ‘environmentally friendly’ or ‘sustainable’. The position of the Danish Consumer Ombudsman in its Quick Guide on Environmental Claims is that such free-standing, general statements will be interpreted by the consumer literally. Companies must be able to support such statements through a life cycle analysis of the product conducted by independent experts that demonstrates that the product generally has a significantly smaller impact on the climate or the environment than equivalent products.
In Austria, according to the Federal Act against Unfair Competition, displaying a label, quality mark or equivalent without having obtained the necessary authorisation is regarded as misleading, in compliance with point 2 of Annex I to the UCPD.
According to the UCPD, each Member State has the discretion to decide whether these provisions will be enforced through judicial or administrative proceedings, and whether the courts or administrative authorities should be able to require prior use of other methods to address complaints, such as codes of conduct.
Under Article 11 UCPD, Member States must give courts or administrative authorities the power to act in cases of unfair commercial practices – even without proof of actual loss or damage or of intention or negligence on the part of the trader – which can include:
In Member States covered by this study, the provisions relating to misleading commercial practices are primarily enforced through administrative or civil procedures, while some provide for both. France is one of the few countries worldwide to criminalise greenwashing.
Despite similar definitions of misleading commercial practices, and the Commission’s UCPD guidance, significant discrepancies have been observed between Member States in the application of these provisions to combat greenwashing. While a considerable number of cases have been instituted by civil society and obtained successful results in France and Germany, there are no cases based on these provisions in Bulgaria or Portugal and very few in other countries.
Experts involved in the research have differing opinions about the effectiveness of administrative or judicial proceedings in cases of greenwashing, especially when the law provides both options. In general, administrative proceedings are more appropriate where speed and flexibility are crucial, whereas judicial proceedings are better suited to cases where strong legal protection, enforcement and transparency are key. Court proceedings may also provide better publicity and the added benefit of establishing a legal precedent, which could be valuable for strategic litigation by civil-society organisations (CSOs). In several countries where both public and private options are available, examples show that CSOs start their legal battle against big corporations with administrative authorities, and then continue with judicial proceedings.
The UCPD requires Member States to ensure that adequate and effective means exist to combat unfair practices, and that penalties are effective, proportionate and dissuasive. Important differences exist between sanctions under different regimes. For example, fines can be an effective tool to combat greenwashing if they are sufficiently high to be dissuasive. In the context of greenwashing, these can be either administrative fines or damages ordered by courts.
The EU also plans to introduce penalties against greenwashing, including fines, confiscation of revenues and temporary exclusion from public procurement. The green claims directive proposal highlights in the preamble to recital 64 that, ‘when setting penalties and measures for infringements, the Member States should foresee that, based on the gravity of the infringement, the level of fines should effectively deprive the non-compliant trader from the economic benefit derived from using the misleading or unsubstantiated explicit environmental claim or non-compliant environmental labelling scheme, including in cases of repeated infringements’.
The efficiency of a legal avenue is strongly influenced by the procedural position of the claimant. In Poland, the Office of Competition and Consumer Protection (UOKiK) initiates proceedings ex officio and the reporting entity is not considered a party to the proceedings and cannot take any legal measures if they are not satisfied with the actions taken. The Danish Consumer Ombudsman also is not obligated to address every complaint, and its decisions cannot be challenged. However, it can issue injunctions if negotiations with the company are unsuccessful, which can be reviewed by a court.
While it is for national law to establish rules regarding the burden of proof, the directive recommends enabling courts and administrative authorities to require traders to produce evidence as to the accuracy of factual claims they have made. In countries covered by this study, the burden of proof that a given market practice does not constitute an unfair practice usually rests on the company carrying out that practice.
In some countries, where the civil lawsuit is based in principle on the contractual obligations of the seller, the burden of proof lies with the plaintiff. This is the case in Belgium.
In France, the environmental claims can be challenged through administrative, civil or criminal proceedings. Taking the administrative avenue, private individuals, professionals or recognised (either through the accreditation (agrément) granted or through specific recognition in an order) consumer protection associations can report an infringement, including online, of consumer law to the Directorate-General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF).
France is one of the few countries worldwide to have criminalised greenwashing, and it further increased criminal sanctions in its 2021 Climate and Resilience Law. Fines can now amount to 80 % of the cost of the false promotional campaign. In cases of misleading commercial practices, the choice between civil and criminal legal action lies with the plaintiff. Private individuals or recognised consumer protection associations can lodge a criminal complaint, and they can also act as civil parties in criminal proceedings to claim compensation. Consumers can also file a complaint in civil courts to obtain an injunction to stop the wrongdoing or to seek compensation for any harm suffered.
Several cases in France based on prohibition of misleading commercial practices showed that these provisions can be successfully used to combat greenwashing (see Box below).
France: decisions illustrating the broad understanding of misleading practice
Monsanto
Monsanto was punished for its advertising presenting the pesticide ‘Roundup’ as environmentally friendly, clean, effective, safe (e.g. a TV advertisement showing a dog rolling on the grass) and biodegradable, and also for putting this information on the packaging along with a logo of a bird. In October 2008, the Court of Appeal found that these claims were likely to mislead consumers and make them less cautious about the product’s substantial qualities, such as the biodegradability of its active substance, glyphosate, which proved to be toxic for small animals and aquatic organisms.
Monsanto and some of its directors were fined EUR 15 000 and ordered to pay damages to two associations that initiated civil action within criminal proceedings (Eau & Rivières de Bretagne and Consommation Logement Cadre de Vie - CLCV) and to partially publish the decision. The Court of Cassation dismissed the application for judicial review (*).
Hyundai
In March 2018, Hyundai was ordered by the Tribunal de Grande Instance de Paris (**) to pay damages to the Association France Nature Environnement for a misleading commercial practice consisting of advertisement that showed cars in natural spaces where public traffic is prohibited under Articles L362-1 to L362-4 of the Environmental Code. The tribunal found that this marketing strategy could mislead consumers about the use of the vehicles and may encourage behaviour harmful to the environment. Hyundai had already removed the disputed advertising after receiving a request from the organisation.
Sources:
(*) France, Court of Cassation (Cour de cassation), , 6 October 2009, upholding the judgment of the Lyon Court of Appeal, (Cour d'appel de Lyon), 1012/07, 29 October 2008.
(**) France, High Court of Paris (Tribunal de Grande instance de Paris), 17/06330, 13 March 2018.
Since the adoption of the Climate and Resilience Law, the number of cases in France against misleading commercial practices related to environmental claims have been increasing (see Box below).
France: examples of pending cases under the Climate and Resilience Law
The associations Consommation Logement Cadre de Vie (CLCV) and CCFD-Terre Solidaire filed a complaint with the court in October 2021, alleging misleading commercial practices against Nespresso (for claiming to use ‘100 % recyclable capsules’ and ‘100 % carbon neutral coffee’) and Volvic (for claiming to be ‘100 % recyclable’, ‘100 % recycled’ and ‘carbon neutral’). According to CLCV, the ‘100 % recycled’ claim seems to have been subsequently removed from the packaging which might suggest that a lawsuit can influence corporate behaviour even before the court ruling (*).
In June 2022, Zero Waste France filed a criminal complaint against Adidas and New Balance accusing them of misleading consumers with their claims about the environmental impact of their products and their environmental commitments. The organisation refers to Adidas’s ‘Made to be remade’, ‘End Plastic Waste’ and ‘FutureCraft.Footprint’ sneaker slogans and to New Balance’s ‘green leaf’ standard, which claims that, for products bearing this standard, 50 % or more of the materials are from environment-friendly sources (**).
(*) CLCV (2022), ‘Green marketing and consumer protection’, (‘Le marketing vert et la protection des consommateurs’), July 2022, p. 8.
(**) Zero Waste France (2022), ‘On your marks, get set, attack: zero waste france files a complaint against adidas and new balance for greenwashing’, (‘A vos marques, prêts, attaquez: Zéro Waste France porte plainte contre Adidas et New Balance pour greenwashing’), 22 June 2022.
In Poland, the law provides for administrative proceedings to enforce prohibition of infringing collective consumer rights and civil proceedings to enforce prohibition of unfair market practices.
The Competition and Consumer Protection Act protects collective consumer interests. It prohibits practices that infringe the law or offend morality, – in particular, breaches of the obligation to provide consumers with correct, truthful and complete information which includes unfair market practices. It is enforced in administrative proceedings by the president of the Office of Competition and Consumer Protection (UOKiK). UOKiK initiates proceedings ex officio and the reporting entity is not considered a party to the proceedings and cannot take any legal measures if they are not satisfied with the actions taken.
There are very few instances in which this provision has been used in environmental cases (see Box below)
Poland: proceedings before UOKiK
In March 2021, the ClientEarth Poland Foundation notified the President of UOKiK that the use of the name ‘eco-pea coal’ (a), along with packaging and website information suggesting that the product is environmentally friendly, violates consumer rights. The foundation provided evidence showing that consumers are influenced by misleading marketing from the coal industry, and also a scientific analysis proving that eco-pea coal is harmful to health. However, the President of UOKiK declined to take action, stating that the use of the name is legal according to a relevant legal act (since repealed). In June 2023, the Minister of Climate and Environment changed the legal name of ‘eco-pea coal’ to ‘pea plus’.
In 2022, the Frank Bold Foundation took legal action against two energy companies for spreading false information about energy prices. The companies claimed that the price increase was due to EU emissions trading system carbon prices, but failed to mention their own high carbon costs resulting from their refusal to reduce CO2 emissions. Clients received this information via post, emails and company websites. Initially, the President of UOKiK dismissed the case, stating that the companies’ actions were of a political nature and not a commercial practice that could affect consumers’ decisions (b)(*). Subsequently, however, the president changed their stance and requested the companies’ response in view of potential proceedings, due to concerns that information provided to consumers was untrue and could have a potential impact on their decisions (**).
Note:
(a) Pea coal, which is a small anthracite coal, is utilised in boilers for domestic heating purposes. ‘Eco-pea coal’ was a brand name used for retail sales of pea coal, and in 2018 it was categorised as a higher-quality coal under a regulation defining quality standards for coal. However, the implementation of this regulation is currently on hold, rendering the ‘eco’ prefix solely a trade name without any assurance of meeting environmental standards.
(b) Significantly, the notification originally addressed to UOKiK by the Foundation was related to a suspected breach of collective consumer interests, not unfair market practices, which are regulated in another act.
(*) President of UOKiK answer of 25 February 2022, DAR-4.60.137.2022.
(**) President of UOKiK answer of 18 March 2022, DAR-4.60.184.2022.
In cases of unfair market practices, which are prohibited in Poland by its Act on Counteracting Unfair Market Practices, a lawsuit can be brought before a civil court, including by the ombudsman, the Financial Ombudsman, a district consumer ombudsman and consumer protection organisations.
Poland: judicial proceedings against ‘eco-pea coal’
An example of the application of this provision in practice is the case filed by the ClientEarth Poland Foundation against a company that sells non-ecological coal fuel under the misleading name of ‘eco-pea coal’. The foundation has called on the company to stop this unfair market practice and its misleading promotional activities that suggest that burning coal is environmentally friendly. This case is a continuation of previous action taken by the foundation, which included an information campaign and an administrative complaint to UOKiK (see also previous box). The case is still pending.
In Austria, according to the Federal Act against Unfair Competition, a claim for injunction can be initiated by any entrepreneur who produces or sells similar goods or services (a competitor), by associations that represent the interests of affected entrepreneurs and by institutions such as the Federal Chamber of Labour, the Federal Economic Chamber, the Austrian Trade Union Federation and the consumer organisation Verein für Konsumenteninformation.
In Belgium, environmental claims are regulated through the provisions on misleading and unfair practices under the Belgian Code of Economic Law. These provisions can be enforced through administrative or civil avenues, and also alternative dispute resolution. The Economic Inspectorate, a division of FPS Economy, investigates misleading commercial practices, including those related to greenwashing claims, in administrative proceedings. According to the FPS Economy annual report, in 2021 the Economic Inspectorate received nine reports of greenwashing and carried out 29 inspections, which resulted in 16 warnings being issued to businesses, all of which were voluntarily complied with. Experts consider that consumers are not yet very aware of the possibility of complaining to FPS Economy with regard to environmental claims [5] Interview with the European Consumer Centre Belgium, 16 September 2022. .
Consumers in Belgium can pursue alternative dispute resolution (mediation, conciliation, etc.). They are advised to submit a complaint to the Belgian Consumer Mediation Service before taking legal action. The ombudsman services are free, but consumers must first try to reach a settlement with the company. However, the institution does not typically receive complaints related to greenwashing or environmental practices [6] Interview with the Belgian Consumer Ombud Service, 14 September 2022. .
Civil lawsuits can be brought by consumers in cases of claims based on non-conformity of a product with its description or advertisement. The advantage of such lawsuits is that the consumer must prove only that the product was defective, thereby reversing the burden of proof.
The limited number of court decisions in Belgium regarding greenwashing could be attributed to the existence of other avenues, such as administrative avenues, mediation and through competence of self-regulatory bodies [7] Heremans, T., (n.d.), ‘Sustainability claims and greenwashing’, CMS; Borres, S., (2018), ‘Between consumer expectations and commercial policy of businesses: the legal response to greenwashing. How to ensure that businesses and consumers play a role in the ecological transition?’, (‘Entre attentes des consommateurs et politique commerciale des entreprises : la réponse du droit au greenwashing. Comment assurer aux entreprises et consommateurs un rôle dans la transition écologique?’), Université catholique de Louvain, Louvain-la-Neuve, 2018. .
In addition, Belgian courts appear to place emphasis on the legal requirement that for an advertisement to be deemed misleading it must have the ability to deceive the average consumer.
Consequently, even if a claim is not entirely accurate, Belgian courts may determine that it does not constitute a misleading commercial practice if the level of inaccuracy is too minor to influence the consumer’s ultimate transactional decision.
This approach can be illustrated by two cases before Belgian courts (see Box below).
Cases alleging greenwashing before Belgian courts
In the case of Werner & Mertz ‘Froggy’ v Ecover (*), it was claimed that a soap bottle was made with 50 % plastic recycled from the ocean, when the actual percentage was less than 50 % and the plastic was sourced from ocean beaches. The Court of Appeal of Brussels concluded that the advertisement was not misleading, as the average consumer would interpret the environmental claims in a general sense rather than literally. Therefore, the consumer’s economic behaviour would not have been affected if the claims had been accurately stated.
In Ferrero v Delhaize (**), Ferrero accused the supermarket chain Delhaize of misleading environmental (and nutritional) claims in its ‘free from palm oil’ campaign. Delhaize claimed that its palm oil-free spread was healthier and better for the environment than an equivalent product containing palm oil.
Ferrero won the case and the court ordered Delhaize to stop saying that ‘no palm oil’ is healthier and more sustainable. The ruling was not about Delhaize’s palm oil-free claims themselves, which featured on packaging, but about its marketing campaign that implied that its product was healthier and more environmentally friendly because it contained no palm oil. Ferrero argued that this campaign damaged its Nutella brand, which was displayed next to Delhaize’s Choco spread in the supermarket.
The Brussels Court of Appeal determined that Delhaize’s environmental claims were unverified and subjective and ordered the cessation of the advertising campaign, under a penalty fine of EUR 25 000 per new broadcast.
(*) Belgium, Brussels Court of Appeal, Werner & Mertz ‘Froggy’ v Ecover, 28 June 2019.
(**) Belgium, Brussels Court of Appeal, Affaire Ferrero, 2 June 2017.
According to the European Consumer Centre Belgium and the Belgian Consumer Ombuds Service, consumer groups in Belgium criticise the pursuit of private damages for misleading commercial practices as an ineffective way to prompt more sustainable behaviour from companies owing to the time and financial resources required, evidentiary hurdles and small potential gains for consumers [8] Interview with the Belgian Consumer Ombuds Service, 14 September 2022; interview with the European Consumer Centre Belgium, 16 September 2022. . They believe that administrative enforcement or government regulation would be more effective to address greenwashing [9] Interview with the Belgian Consumer Ombuds Service, 14 September 2022; interview with the European Consumer Centre Belgium, 16 September 2022. .
In Germany, misleading claims about a product, including its environmental impact, are regulated under the Act against Unfair Competition [10] Germany, Gesetz gegen den unlauteren Wettbewerb. . The act allows individuals to seek injunctive relief for unfair trade practices or to seek compensation for harm caused by unfair business practices.
A 2018 study commissioned by the Federal Ministry for Economic Affairs and Energy concluded that the existing norms protecting consumers and fair competition are flexible enough to cover new business models and practices. The Federation of German Consumer Organisations argues that ‘Case-law already recognises that missing information relating to environmental statements can be considered material information and therefore misleading by omission.’
Case-law: Germany
‘Environmental Angel’ (Umweltengel)
The groundbreaking ‘Environmental Angel’ decision by the Federal Court of Justice (*) in 1988 marked the first time that environmental claims in advertising were addressed by that court. In this case, a seller had displayed the ‘Blue Angel’ (‘Blauer Engel’) environmental seal, which includes the words ‘environmentally friendly’ and which is awarded to qualifying products according to guidelines set out by a multi-stakeholder jury. However, the seller failed to specify which specific aspect of environmental friendliness the label referred to. The court decided that environmental labels must be evaluated according to strict criteria. Like health claims, environmental labels are particularly suited to speak to consumers’ emotions. Environmental labels therefore carry an increased risk of misleading consumers. Not only must the conditions for awarding the label be met, but the producer must also indicate when a product is only ‘environmentally friendly’ in certain regards, in case when a label covers multiple dimensions of sustainability.
Consumer expectations in the absence of an existing label
In 2007, the Hanseatic Higher Regional Court (**) examined a case involving the distribution of a hydraulic lubricant marketed as ‘rapidly biologically degradable’ (‘schnell biologisch abbaubar’). The product did not use an existing label for the relevant product class (e.g. the ‘Environmental Angel’), nor did the product meet the requirements such label establishes for this particular product class. The court nevertheless determined that the claim was misleading to the average consumer because of the lack of additional explanation. The defendant should have disclosed that the tests underlying the claim did not correspond to those usually applied for awarding widely used environmental labels.
(*) Federal Court of Justice, Judgement of 20 October 1988 (I ZR 219/87)
(**) Hanseatic Higher Regional Court, Judgment of 2 May 2007 (5 U 85/06)
Environmental claims are monitored by various organisations, including environmental organisations, as well as the Centre for Protection against Unfair Competition, an independent self-regulatory institution established by German business. The publicly funded consumer protection organisations, along with competitors in the same sector [11] Interview with a business organisation on 1 November 2022. , also take on misleading green claims by businesses.
With respect to recycled products and sustainable packaging, the case-law in Germany reveals that consumers will assume that a product or its packaging is composed entirely of recycled materials unless the contrary is stated explicitly. General claims about sustainable packaging may therefore deceive consumers [12] Rehart, N. K., Isele, J. F. and Ruhl., H. J., in Fritzsche, Münker, Stollwerck, Beck Online Commentary Act against Unfair Competition, 17th edition, 1 July 2022, s. (5), paras 392, 403. .
In Bulgaria, the potential application of the Consumer Protection Act in environmental cases could not be confirmed as no such cases have so far been brought before the Commission for Consumer Protection (under administrative procedure) or before the courts under general rules of civil law.
Experts from Bulgaria point to the need for greater awareness of greenwashing and state that consumer rights associations should educate consumers on how to identify greenwashing:
I do not know why but the Bulgarian consumer does not seem to care that much about the so-called greenwashing. I have not heard of any signals from consumers concerning greenwashing practices and I can imagine there are many such cases. Probably the reason is that the consumers are not aware of greenwashing.
Representative of the Commission for Consumer Protection, Bulgaria
The Danish Marketing Practices Act outlaws aggressive or misleading marketing. The Danish Consumer Ombudsman is responsible for ensuring compliance with the act and can consider cases on its own initiative or based on complaints, both by consumers and by companies. The ombudsman is not obligated to address every complaint, and its decisions cannot be challenged. It can issue injunctions if negotiations with the company are unsuccessful, which can be reviewed by a court.
The Consumer Ombudsman and anyone with a legal interest (including business and consumer organisations) may initiate court proceedings for prohibitions, injunctions or compensation. The prohibitions can be directed at various involved parties, such as the company selling the product or the advertising agency running the marketing campaign.
Case-law: Denmark
In 2011, the Danish Maritime and Commercial High Court prohibited a company from using statements that claimed that their plastic products were more environmentally friendly than metal or glass products. The company had already removed the statements and destroyed brochures, but the prohibition still applied to future actions. The court found that the company lacked evidence for its claims and that the statements were misleading because they did not specify that they applied only to certain stages of the product’s life cycle and disregarded the potential for metal reuse.
The court emphasised the importance of clear, true, specific and not misleading claims to prevent unfair competition and stated that companies must provide evidence from an unbiased expert to support their claims.
Source: Denmark, Danish Maritime and Commercial High Court, H-9-10 judgment of 30 December 2011.
In 2014, the Danish Consumer Ombudsman issued guidancefor companies promoting their products as environmentally friendly on application of the Marketing Practices Act, further clarified in a quick guide published in 2021. The guidance states that companies must provide factual information supported by studies from independent experts.
According to the Danish Consumer Ombudsman, the requirements of the Danish Marketing Practices Act are sufficient to ensure that companies provide accurate information. However, the absence of judicial and administrative case-law on the application of the Marketing Practices Act to green marketing has been noted.
Danish Consumer Ombudsman’s perspective on companies’ obligations
In 2009, a petrol company in Denmark advertised a petrol product on TV by showing a car covered in grass. After refuelling with the product, the car drove away leaving a trail of flowers, accompanied by the slogan ‘5 % less CO2. Same price – better for the environment.’ The Danish Consumer Ombudsman ruled that if an environmental benefit cannot be proven through a proper life cycle analysis, it should not be used in marketing. In this case, the company was unable to provide evidence of such a benefit, making their marketing misleading (*).
In 2010, the Danish Consumer Ombudsman ruled on a case involving an airline that advertised its propeller aircraft as being more environmentally friendly than standard jet aircraft. The airline used a study by the Danish Energy Agency to support its claims, but it failed to mention that trains emitted even less CO2. The advertisement was considered misleading because it omitted important information and used visuals to imply that flying with that airline had no negative environmental impact (**).
In another decision, from August 2022, the Danish Consumer Ombudsman ruled that a company cannot label a plastic product as ‘recycled plastic’ if it is less than 55 % recycled plastic. This label would mislead the average consumer into thinking the product is made mostly or entirely from recycled plastic (***).
(*) Denmark, Danish Consumer Ombudsman, decision of 30 June 2009.
(**) Denmark, Danish Consumer Ombudsman, decision of 22 September 2010.
(***) Denmark, Danish Consumer Ombudsman, decision of 29 August 2022.
In Italy, the provisions concerning unfair commercial practices included in the Codice del Consumo set out the main complaint instrument. The Italian Competition Authority (Autorita’ Garante della Concorrenza e del Mercato (AGCM)) is responsible for enforcing the law. The AGCM can stop unfair commercial practices, impose fines and suspend business activity for up to 30 days for repeated non-compliance. An appeal against decisions taken by the AGCM can be lodged with the competent administrative court, without prejudice to the jurisdiction of the ordinary judge in matters of unfair competition pursuant to Article 2598 of the Civil Code. Numerous cases have been filed against companies for misleading environmental information, with administrative proceedings initiated by the AGCM ex officio or by NGOs, consumer associations and other stakeholders.
Italy: Cases before the Italian Competition Authority and courts
In 2019, the AGCM fined Eni EUR 5 million for misleading consumers by promoting its product as ‘green diesel’ and emphasising the product’s renewable component in advertisements. The authority stated that the product’s environmental claims were not well-founded and that its ability to reduce harmful emissions was not confirmed (*). Eni’s appeal to the Regional Administrative Court was rejected in 2021.
In a judgment of 2017, the Council of State upheld a fine imposed on San Benedetto by the AGCM for unfair business practices in its advertising of mineral water. The company claimed to have reduced harmful emissions from polyethylene terephthalate (PET) bottle production, but it did not provide enough evidence to support this claim. The court stated that the burden of proving the legitimacy of the environmental claims is on the company, and the principle of professional diligence requires that the company communicates only information backed by precise, reliable and verifiable scientific evidence (**).
In 2022, MyTaxi Italia was fined EUR 400 000 by the AGCM for misleadingly using the name ‘Clean air fee’ to indicate a fee for taxi rides through the ‘FreeNow’ application. The fee was intended to offset emissions generated by the intermediary service, but only a part of the proceeds would be allocated to environmental improvement activities. The company’s environmental claim was misleading (***).
Alcantara S.p.A. vs Miko S.r.l. was the first Italian case between competitor companies related to ‘greenwashing’. Alcantara, a manufacturer of a micro-fibre product used in the automotive sector, requested an interim order to prevent its competitor from continuing its ‘green advertising’. This advertising included statements such as ‘environmentally friendly’, ‘natural choice’, ‘100% recyclable’, and ‘reduction of carbon footprint’. In 2021, the Court of Gorizia found these statements to be generic, false and unverifiable and thus misleading. It ordered that these should be immediately removed. It also ordered Miko to publish the decision on its website. The court specifically addressed the unfair competitive advantages gained through greenwashing, given today's increased awareness of environmental issues (****).
(*) Italy, AGCM, decision of 20 December 2019.
(**) Italy, Council of State, Section VI, judgment of 27 April 2017 (n. 1960).
(***) Italy, AGCM, decision of 5 July 2022.
(****) Italy, Court of Gorizia, (Tribunale Ordinario di Gorizia), judgment of 25 November 2021 (712/2021).
In the Netherlands, the Unfair Trade Practices Act (contained in Book 6 of the Civil Code) allows consumers to take legal action against businesses before civil courts.
The burden of proof falls on the business to prove that its information is correct and complete. The consumer must provide a link between the unlawful act (misleading advertising or misleading labelling) and the damage.
The Netherlands: consumer obligation to verify misleading claims
In January 2019, the Pigs in Need Foundation (Stichting Varkens in Nood) and the Rights of Animals Foundation (Stichting Dierenrecht ) filed a lawsuit before the Hague District Court against the foundation Meat.nl for its promotion of pork consumption as sustainable. Meat.nl explained that it merely claimed that its farmers operated sustainably.
The court rejected the claim. It emphasised that consumers should be aware that advertisers have their own interests and may not be neutral. Consumers should be aware of Meat.nl’s interest in improving the image of farmers and exaggerating product benefits, including its environmental impact. Therefore, consumers should not blindly trust the information provided by farmers. According to the court, the average consumer is responsible for investigating information and seeking alternative sources to make their own decisions.
Source: Netherlands, District Court of The Hague, judgment of 30 January 2019 (C/09/550422/HA ZA 18-354).
Consumers and consumer associations can also report unfair trade practices, such as misleading advertising and improper use of labels, to the Netherlands’ Authority for Consumers and Markets. If consumers want to seek damages, they need to initiate separate legal proceedings before the court.
In 2022, the Authority for Consumers and Markets issued a mandatory guideline on of sustainability claims for businesses. This requires businesses to clearly state the sustainability benefits of their products, provide evidence and ensure that claims and labelling are helpful to consumers.
In Portugal, the Directorate-General for Consumer Affairs (DGC) is responsible for overseeing investigations under the Unfair Commercial Practices Act. Furthermore, if an environmental claim is found to be misleading or to omit information, it is considered an economic offence under theLegal Framework for Economic Offences.Anyone with a legitimate interest can file a complaint to the appropriate administrative authority, including competing professionals and consumer associations. The burden of proof is always on the trader, and the DGC has access to information about complaints related to misleading advertising entered in the complaints book, required for all suppliers and service providers who engage with the public. A digital platform is also available for reporting complaints (Complaints Book Law).
Information about the claims and complaints examined by the DGC is not publicly available. In December 2022, the DGC confirmed in an interview that several investigations were ongoing. The Portuguese Association for Consumer Protection (Associaçáo Portugesa para a Defesa do Consumidor (DECO)) identified three cases of greenwashing and reported them to the DGC.
Greenwashing cases in Portugal submitted by DECO
DECO made three accusations against Ryanair, Renault and ‘The Good Bottle’. Ryanair claimed to have the lowest carbon emissions of any airline in Europe, but a report from the European Federation for Transport and Environment showed that it is among the EU’s top 10 carbon emitters.
Renault falsely claimed in an advertisement that electric vehicles produce no pollution and therefore do not have to pay road tolls.
‘The Good Bottle’ was marketed as 100 % biodegradable, but the producer website stated that the biodegradability rate was only 74 % after 45 days and 90 % within 12 months, depending on the environmental conditions.
The outcomes of these cases are not publicly available. According to DECO, Ryanair had not responded to the accusation by December 2022. The Renault advertisement was suspended by the advertising self-regulation body. ‘The Good Bottle’ was cleared by the DGC, which found no evidence of an administrative offence regarding the advertising since the bottle was never available for purchase by consumers.
Source: Portugal, DECO, written response, 7 December 2022.
Carbon neutrality means having a balance between emitting carbon and absorbing carbon from the atmosphere in carbon sinks (e.g. soil, forest).
Carbon offsetting is a process that involves reducing greenhouse gas emissions from the atmosphere to compensate for emissions that cannot be reduced directly by an individual or a company. This can be done through investment in renewable energy, energy efficiency or other clean, low-carbon technologies. The EU’s emissions trading systemis an example of a carbon-offsetting system.
Achieving carbon neutrality by 2050 is crucial to prevent global warming exceeding 1.5 °C, with warming above this level considered unsafe by the Intergovernmental Panel on Climate Change and as outlined in the Paris Agreement, signed by the EU and 195 countries.
An example of highly debated green claims emerged in the use of the term ‘carbon-neutral’ in product or service advertisements. Climate change has already had serious and irreversible human rights impacts, and these impacts are likely only to intensify in the future. Not only has the spread of unregulated company publicity involving ‘net-zero’ or ‘climate-neutral’ claims inhibited climate action, but most carbon-offsetting projects are located in so-called risk countries, where the protection of human rights is already precarious.
Consequently, the use of carbon offsets to attain carbon neutrality is under heightened global scrutiny, and there is growing scepticism surrounding their implementation. In February 2023, a group of 37 environmental organisations sent a joint letter to the European Parliament and the Council of the European Union requesting a ban on all climate neutrality claims such as ‘carbon-neutral’ and ‘CO2-neutral’. They referred, inter alia, to a recent report by Carbon Market Watch, which exposed the deceptive nature of net-zero and carbon neutrality targets set by some of the world’s largest companies. In that report 12 companies were assessed who claimed to be carbon neutral. However, their offset efforts accounted for only 3 % of their total emissions on average. In March 2023, 80 NGOs signed another letter urging the EU to reject carbon offsets, following an investigation by Die Zeit, The Guardian and the NGO SourceMaterial. This investigation revealed significant flaws in the voluntary carbon-offset market. A group of academic researchers evaluated 29 projects and determined that over 90 % of the credits issued by those projects held no value. The ongoing debate and advocacy by NGOs point to a complex and evolving landscape regarding the use of carbon offsets in the EU’s climate goals.
However, some experts consulted maintain that a total ban on carbon offsetting could be counterproductive and instead call for more effective regulation of carbon neutrality and a requirement for science-based emission reductions, while keeping carbon offsetting as a last resort. This was recommend by the updated OECD guidelines for multinational enterprises on responsible business conduct.
On 19 September 2023, the Parliament and the Council reached a provisional agreement on the proposal for empowering consumers for the green transition. It includes a ban on carbon and climate neutrality claims, based on emissions-offsetting schemes, that a product has a neutral, reduced or positive impact on the environment. The text agreed and adopted by the Parliament in January 2024 states that ‘such claims should only be allowed when they are based on the actual lifecycle impact of the product in question, and not based on the offsetting of greenhouse gas emissions outside the product’s value chain, as the former and the latter are not equivalent’.
It follows from findings of this research that ‘carbon neutrality’ or ‘carbon offsetting’ claims are currently only rarely forbidden in national regulations, and most prohibitions provide for exceptions.
Among the countries covered by the study, only France (through Article L229-68 of the Environmental Code) prohibits advertisements claiming that a product or service is carbon-neutral or using similar language. However, broad exceptions exist for situations in which the advertiser (1) provides the public with a report on the product’s or service’s direct and indirect greenhouse gas emissions, (2) details the process of avoiding, reducing and offsetting emissions and (3) follows specific minimum standards for offsetting residual emissions.
Decree No 2022-539 relating to carbon offsetting and claims of carbon neutrality in advertising entered into force in January 2023. It aims to prevent greenwashing and regulates the use of carbon neutrality claims for products and services when advertised in various media. It obliges advertisers to produce a report on the greenhouse gas emissions of the product or service concerned, covering its entire life cycle.
Promising practice: using the ‘carbon neutrality’ argument in communications
The French Agency for the Environment and Energy Management (Agence de l’environnement et de la maîtrise de l’énergie) published an expert opinion explaining why ‘neutrality’ arguments can be misleading and expose organisations to the risk of controversy, ‘why they do not make it possible to distinguish between real approaches and those that are greenwashing’ and ‘ultimately how they prevent the spotlight from being shone on actors who are sincere and genuinely committed to the climate’.
Interestingly, even before this provision was adopted in France, ‘carbon neutral’ claims had been challenged in court for misleading marketing practices, as in the lawsuit against TotalEnergies. In this case, the plaintiffs referred to the Commission’s proposal on empowering consumers for the green transition to support their argument, even though it had not yet been adopted. This example highlights the potential impact of EU policy on the interpretation of existing legal provisions.
Lawsuits against the French oil company TotalEnergies in France and Germany
In France, a lawsuit for misleading commercial practices was filed in March 2022 by Greenpeace France, Friends of the Earth France and Notre Affaire à Tous, supported by ClientEarth.
NGOs have challenged claims made by TotalEnergies about its commitment to carbon neutrality by 2050 and its role in the energy transition. They argued that the company’s advertising campaign falsely portrays it as taking action on the climate crisis, thus misleading consumers. The lawsuit also criticises the promotion of gas and biofuel as environmentally friendly options by TotalEnergies.
TotalEnergies has been promoting its questionable carbon neutrality claims through various media such as billboards, press outlets, its website, advertisements in service stations, television and social media platforms.
In Germany, in April 2023, Deutsche Umwelthilfe won a lawsuit against TotalEnergies over ‘climate-neutral’ heating oil claims. Deutsche Umwelthilfe criticised the ambiguously presented measures to achieve supposed climate neutrality and criticised the use of emission credits from a forest protection project in Peru to offset CO2 emissions. The Düsseldorf Regional Court ruled that claims made by TotalEnergies on climate neutrality were misleading. The court also prohibited further advertising of its heating oil as ‘CO2 compensated’.
Source: Germany, Düsseldorf Regional Court, judgment of 5 April 2023.
In Germany, environmental claims can relate to both the product and the production process. In Germany, certain claims regarding ‘climate neutrality’ have been classified by the courts as misleading or omitting material information. They have been classified as misleading when consumers would understand such claims to mean that emissions would be fully compensated [13] Higher Regional Court of Koblenz, judgment of 10 August 2011 (9 U 163/11), BeckRS, 2011, 23895. . They have been classified as omitting material information when it was not clear to what extent climate neutrality was achieved through real reductions in the company’s production rather than through the purchase of CO2 certificates, for example [14] See, for example, District Court of Frankfurt am Main (6th Division for Commercial Matters), judgment of 31 May 2016 (3-06 O 40/15), BeckRS, 2016, 141603. .
However, the exact boundaries of permissible claims are not clearly defined as the fact patterns underlying claims pertaining to climate neutrality are product specific and are not subject to review by the Federal Court of Justice. This can lead to different outcomes in lower courts, which can make such claims riskier for businesses [15] Steuer, ‘ “Klimaneutrale” Produkte im Lauterkeitsrecht’ [‘ “Climate neutral” products and the law of unfair commercial practices’], GRUR, 2022, 1408, p. 1417. and may also lower the value of the information for the consumer. In addition, in response to the changing legal landscape, companies have begun to introduce more nuanced claims, such as ‘climate neutralised’, when relying on CO2 compensation mechanisms.
Discrepancies observed in the use and interpretation of these provisions across various Member States further emphasise the necessity of implementing a targeted and coherent approach to addressing greenwashing at the EU level.
Germany: ‘Climate-neutral’ versus ‘climate reduced’
In a case related to garbage bags, the Higher Regional Court of Schleswig (*) decided in June 2022 that, unlike the claim ‘environmentally friendly’, the claim ‘climate-neutral’ contains an unequivocal statement. The claim of climate neutrality was printed on the product and was accompanied by a visible reference suggesting that the product supports ‘gold standard certified’ climate protection projects. According to the court, consumers could understand this claim to mean only that the product has a neutral CO2 balance, not that CO2 emissions are avoided altogether in the production process. The court found that the product advertisement was not misleading, as the product packaging provided a website link to the company's compensation program. This aligns with a case of August 2021 decided by the Higher Regional Court of Hamm (**) in which the claim ‘climate reduced’ was found to be of such generality that it remained completely open whether the claim related to the production, packaging or distribution and under which standard the climate reduction was achieved.
In July 2023, the Düsseldorf Higher Regional Court has ruled (***) on two appeal cases submitted by the Centre for the Protection against Unfair Competition (Wettbewerbszentrale). The cases related to two products claiming to be ‘climate-neutral’: a jam and a fruit jelly. They endorsed the previous approach of other appeal courts that the average consumer understands climate neutrality as the process of offsetting the carbon emissions of a product. The court emphasised that advertisers have a responsibility to disclose how they achieve climate neutrality so that consumers can make informed choices. The jam manufacturer failed to provide enough information, while the fruit jelly manufacturer provided additional information through a QR code and website link, which was deemed sufficient. The fruit jelly case is pending appeal at the Federal Court of Justice.
(*) Schleswig-Holstein Higher Regional Court, judgement of 30 June 2022 (6 U 46/21).
(**) Higher Regional Court of Hamm, judgment of 19 August 2021 (4 U 57/21).
(***) Düsseldorf Higher Regional Court, judgments of July 6, 2023, (I-20 U 72/22 and I-20 U 152/22).
In other Member States, authorities and courts are increasingly faced with carbon neutrality claims, which are currently dealt with under rules on misleading commercial practices. The divergent decisions of domestic bodies and the complexity of this issue point to the need for more targeted legislation and precise, science-based rules.
Carbon neutrality claims
Italy: Ferrarelle – Impatto Zero
In 2012, the Italian Competition Authority AGCM deemed Ferrarelle’s advertising campaign for its bottled mineral water as misleading. The campaign highlighted Ferrarelle’s temporary membership of an environmental project as offsetting CO2 emissions from its bottle production (*).
Danish dairy company Arla
The Danish dairy company Arla marketed some of its foods as being ‘CO2-neutral’, claiming to offset its emissions through carbon credits purchased from deforestation projects in Brazil and Indonesia. The Margarine Association complained that this was greenwashing and violated the Marketing Practices Act. In 2021, Arla was cleared of violating the law by the Danish Veterinary and Food Administration. However, consumer groups and environmental organisations have appealed the decision, claiming that Arla’s marketing campaign was misleading. In a majority decision , the Danish Environment and Food Board of Appeal dismissed the appeal as inadmissible (**).
Austrian Airlines
In 2023, Austrian Airlines advertised a CO2-neutral flight to Venice, claiming that the money from an additional ticket fee would be used to purchase sustainable aviation fuel made from plant oil. However, the consumer organisation Verein für Konsumenteninformation argued that CO2-neutral flights are not currently possible. The case was brought to the regional court in Korneuburg which ruled in June 2023 that the advertising was misleading. It ordered Austrian Airlines to stop the advertising and publish the judgment on its homepage (***).
(*) Italy, AGCM, decision PS/7235, 8 February 2012.
(**) Denmark, Danish Environment and Food Appeals Board, decision of 23 May 2023 (21/14127).
(***) Austria, Regional Court Korneuburg, judgment of 29 June 2023 (29 Cg 62/22).
Under EU law, the misleading and comparative advertising directive seeks to protect traders against misleading advertising from other businesses (i.e. business to business), which is equivalent to an unfair commercial practice. It also defines the conditions under which comparative advertising is authorised.
According to the directive, advertisements that mislead, or may mislead, the people who receive them are forbidden, as they can affect the economic behaviour of consumers and traders or may be detrimental to a competitor.
EU Member States must ensure that those persons or organisations with a legitimate interest may initiate judicial or administrative action against illicit advertising in order to:
The audiovisual media services directive prohibits commercial communication that encourages behaviour grossly prejudicial to the protection of the environment. Advertising that promotes the use of environmentally hazardous products, such as single-use plastics or goods that contribute to deforestation, is an example of illegal communication.
The environmental laws in most Member States covered by this study do not include provisions against greenwashing, except in France and to some extent in Poland. While France introduced an express prohibition of greenwashing in its 2021 Climate Law, few Member States covered by this study have targeted avenues to challenge misleading environmental claims in advertisements other than through consumer laws.
In some Member States, there are non-binding rules relating to advertising, most often established by business itself, and ‘enforced’ through non-judicial dispute resolution. However, the perceived lack of impartiality of such bodies leads to divergent and less strict decisions regarding greenwashing, while the biggest weakness of this avenue is the lack of legal enforcement.
This section provides examples of the application of both administrative/judicial and self-regulatory avenues for addressing misleading environmental advertising and evaluates the effectiveness of such measures.
In Poland, Article 80 of the Environmental Protection Act forbids advertising or other promotion of goods or services that promotes a consumption model contrary to the principles of environmental protection and sustainable development. This includes content that uses images of wildlife to promote products and services negatively affecting the environment. The terms ‘advertising’ and ‘promotion’ are understood broadly; however, since only ‘goods and services’ are mentioned explicitly, social and political campaigns fall outside the law’s scope, as long as they do not intend to advertise a specific product. An example that would not be covered by Article 80 is social campaigns created by non-eco-friendly companies (such as those producing plastic bottles and not taking care of waste) to promote recycling, falsely presenting the company as eco-conscious, although not marketing a specific product.
The Environmental Protection Act provides for administrative and civil enforcement. Social organisations and other associations can ask competent administrative authorities to take measures to stop advertising that violates the rules described in Article 80. A civil claim to a court to enforce Article 80 is available only for environmental organisations. They can challenge the producer, the advertising agency and the entity publishing the advertisement [16] Poland, Appellate Court of Warsaw (Sąd Apelacyjny w Warszawie), VI ACa 621/09, 8 December 2009; VI ACa 666/09, 10 January 2010. and request the cessation of promotion, but they cannot claim damages. Consequently, as organisations do not have to prove damage or show legal interest in the proceedings, this mechanism serves as an actio popularis.
While the prohibition stemming from Article 80 of the Environmental Protection Act appears to be broad enough to cover most greenwashing practices, it is rarely used in practice. By November 2022 there seemed to be only three cases in which environmental organisations brought a claim to enforce the prohibition and only one of these was successful.
Poland: application of the Environmental Protection Act to an advertisement using images of wildlife
An example of prohibited advertisement under Article 80 of the Environmental Protection Act is the use of images of wildlife to promote products and services negatively affecting the natural environment. Wildlife is understood as referring to both inanimate and animate nature. Objects must be pictured in the environment in which they occur in nature. However, not every use of the images of wildlife is prohibited – only those that promote products and services that negatively affect the natural environment. The Court of Appeal in Warsaw ruled in a case where an environmental organisation sued a beer producer for using an image of wildlife in their advertisement. The court stated that it is not enough that the image is used, nor is it enough that a product has any impact on environment (as nowadays every product has some environmental impact). The impact has to be more severe – the model of consumption should destroy or degrade the environment and lead to an imbalance (*).
In another case, an environmental organisation brought a claim against a bank that used an image of a bison in their advertisement. The Court of Appeal in Warsaw was of the opinion that even though the bank’s logo is not a real image of wilderness, it is covered by Article 80. This is because in the public perception the image constitutes an element of wilderness, even if its representation is made through a pictogram. However, the court found that the plaintiff had not proved that the image in question promotes a consumption model that is contrary to the principles of environmental protection and sustainable consumption, or that the products, services and banking activities bearing the defendant’s logo have a destructive, damaging effect on the environment (**).
(*)Poland, Appellate Court of Warsaw (Sąd Apelacyjny w Warszawie) VI ACa 621/09, 8 December 2009.
(**)Poland, Appellate Court of Warsaw (Sąd Apelacyjny w Warszawie) VI ACa 666/09, 10 January 2010.
In Portugal, a misleading environmental claim can be considered misleading advertising and an unfair commercial practice according to Article 11 of Advertising Code and constitutes an administrative offence. While this provision applies only to advertising directed at commercial professionals in their relationships with other professionals, it can indirectly protect consumers since it prohibits all advertising that infringes on consumer rights. The Consumer Institute (Instituto do Consumo) – an institute linked to the Portuguese Directorate-General for Consumer Affairs (DGC) – is responsible for monitoring compliance with the law and investigating complaints. The burden of proof lies with the advertiser to demonstrate the accuracy of the information in their advertisements.
In October 2021, the DGC released a ‘Guide on Environmental Claims in Commercial Communication’ to help professionals promote transparency and empower consumers to make eco-conscious choices. The Civil Institute for the Self-Regulation of Advertising also published a self-regulation code of conduct.
The 2021 Climate and Resilience Law in France introduced into its Environmental Code restrictions on advertising for products and services that have a significant negative impact on the climate. This includes a ban on advertising for fossil fuels as of August 2022, with the specific fuels to be determined by government regulation. In addition, starting in January 2028, advertising for new passenger cars that emit more than 123 grams of carbon dioxide per kilometre will also be prohibited [17] France, Environnemental Code, Articles L229-61 to L229-67. .
In all Member States voluntary, self-regulatory codes of conduct exist to regulate advertising, including advertising related to environmental and ecological issues. However, this avenue is limited because decisions are not legally binding and lack enforcement.
While they can help improve the implementation of ethics rules within the profession by publicly exposing wrongdoers, several examples of such decisions have been criticised for being unduly lenient in permitting greenwashing.
In Poland, advertising is regulated in the Advertising Code of Ethics issued by the Advertising Council, an independent organisation that established and oversees a self-regulatory system for advertising. It consists of advertising branch associations as regular members and companies as supporting members. The code provides guidelines for advertising that includes environmental information. Such advertising should not undermine public trust, take advantage of the audience’s lack of knowledge or deceive consumers about the product or actions of the advertiser. Environmental information must be relevant to the product and claims such as ‘environmentally friendly’ should be accurate. Information about the product’s environmental impact, and accessible methods for reducing waste if harmful substances are present, should be provided. In March 2023, the code was extended and new provisions on environmental advertising added, as a result of the Green Project (see Box below).
Promising practice: Poland – promoting ethical communication in environmental advertising
An example of a promising practice, launched by the Polish Advertising Council in 2021, is the Green Project – an initiative to promote ethical communication and advertising in terms of environmental responsibility and sustainable development, including preventing greenwashing. Furthermore, the council adopted a position paper calling for an end to the excessive and arbitrary use of the terms ‘ecological’, ‘environmentally friendly’ and ‘eco’.
Complaints can be submitted to the Advertising Ethics Committee by natural and legal persons and other entities and associations without legal personalityThe committee can recommend amending the advertisement or discontinuing it. Appeals can be made to the Appeal Panel.
Poland: complaints before the Advertising Council
One of the complaints concerned an advertisement by Orlen, a Polish fuel company. The advertisement described its fuel as pro-ecological and reducing smog. The committee determined that the advertisement did not provide enough clear and documented information, violating Advertising Code rules. However, the opinion did not suggest discontinuing or altering the advertisement (*).
Another case dealt with complaints against PGE Polska Grupa Energetyczna, which advertised its pro-ecological character despite, as the plaintiffs claimed, being the owner of the biggest Polish lignite mines (Turów and Bełchatów), the biggest producer of coal energy in Poland and the biggest single emitter of CO2 in Europe. However, the committee found that the advertiser created a positive, pro-environmental image in an acceptable manner or that the advertiser clearly explained its plans for achieving the goals stated in the advertisement, and dismissed all complaints. These decisions seem not to have taken into account Article 35 of the Advertising Code, according to which advertising referring to specific products or activities may not unjustifiably extend the environmental advertising effect to all of the advertiser’s activities (**).
There were also a few complaints about the advertising of ‘eco-pea coal’ before the Advertising Council (see Section 1.1.2 for administrative and civil proceedings), but no breach of the Advertising Code was found in using it as a statutory brand name. In some resolutions, the Advertising Council found a violation of the Advertising Code in using the terms ‘ecological pea’ or ‘ecological fuel’. Later, the Advertising Council issued an opinion calling for the discontinuation of the name ‘eco-pea’ (***).
(*) Poland, Advertising Ethics Committee, 23 March 2022 (ZO/023/22o).
(** )Poland, Advertising Ethics Committee, 9 March 2022 (ZO/019/22u).
(***) Poland, Advertising Ethics Committee, 23 June 2021 (ZO/062/21o).
Similarly, in France, individuals, associations or businesses can lodge a complaint with the Jury of Ethical Advertising (Jury de Déontologie Publicitaire (JDP)) alleging that an advertisement violates the ethical rules of the advertising sector, including self-regulatory rules as outlined in the codes of the Professional Advertising Regulatory Authority (ARPP). However, only courts or the administrative bodies can address violations of legal provisions. Challenges based in particular on the ARPP recommendation on sustainable development can be an effective means of promoting positive changes in corporate conduct.
Below are examples of successful complaints. However, several opinions issued by the JDP were criticised by researchers for being unduly lenient in permitting greenwashing.
France: complaints before the JDP
In 2022, the JDP concluded that EasyJet’s claim that it ‘compensate[s] for all greenhouse gas emissions from fuel usage’ could mislead the public and downplay the environmental impact of using airline services. This, and other claims of the company, violated the recommendation on sustainable development and ethical rules (veracity and proportionality requirements), potentially removing consumer inhibitions and encouraging excessive air travel despite its negative environmental effects (*).
In another case, of 2020, the JDP criticised an advertisement by Orano, a nuclear fuel cycle company, for portraying nuclear energy as environmentally friendly. The JDP emphasised that any advertisement promoting nuclear energy should leave no room for ambiguity as to its environmental impact (**).
(*) France, JDP, EASYJET – 798/21, 4 January 2022.
(**) France, JDP, opinions of 29 April 2020 regarding the recycling of nuclear fuel and greenhouse gas emissions, Opinion 634/20 and Opinion 625/20. See also the Greenpeace France, press release, ‘Déchets “recyclés”, nucléaire vertueux pour le climat: le Jury de Déontologie Publicitaire épingle les publicités mensongères d’Orano’, 4 May 2020.
Opinions of the JDP are made public and can be challenged within 15 days following receipt of the opinion, before the Advertising Ethics Reviewer (Réviseur de la déontologie publicitaire), which is nominated by the majority of the ARPP board of directors.
In Belgium, the most notable voluntary initiative in the advertising sector is the Code of Environmental Claims, established by the advertising industry. It applies to any advertisements that make claims about the environmental impact of a product or service during its life cycle, including the packaging. The Jury for Ethical Practice in Commercials (JEP) oversees the code’s implementation. It is a self-regulatory body consisting of equal representation from civil society and advertising industry. The JEP can offer advice to the industry on request and handle complaints. If a company does not comply with its decisions, the JEP can request the suspension of an advertisement from the relevant media even though its decisions are not legally binding. Any individual, organisation or public authority acting in the interest of consumers or the advertising industry can submit a complaint to the JEP. A jury of 10 members reviews a decision on appeal, excluding those who were involved in the initial case. Complainants need not prove any harm or damage. However, voluntary initiatives such as the JEP have been criticised for being biased in favour of the companies that create them and lacking real sanctions [18] Interview with Belgian Consumer Mediation Service, 14 September 2022. .
Belgium: complaints before the JEP
The decisions of the JEP are publicly available. The JEP’s approach differs from that of the Belgian courts. The JEP requires advertisers to prove the accuracy and truthfulness of their claims, while in courts the burden of proof is usually on the plaintiff unless specified by the law.
The advertising campaign by Gas.be, which featured a green and blue logo and claimed that gas is environmentally friendly, was criticised for misleading consumers about the sustainability of fossil fuels. The JEP recommended that the wording of the advertisement should be changed or removed. However, it did not find the visual elements problematic (*).
Ferrero faced criticism for using the terms ‘natural’ and promoting a healthy lifestyle in its description of Nutella, a hazelnut cocoa spread, while also including palm oil in its ingredients. The JEP initially ruled that the packaging should exclude the term ‘respectful of the environment’ and that the claim ‘naturally extracted from the fruits of the oil palm’ should exclude ‘naturally’. However, on appeal the decision was revised. The term ‘respectful of the environment’ was deemed accurate as it referred to the production process rather than the product’s impact on the environment. The removal of the word ‘naturally’ was upheld (**).
An association brought a complaint against Shell for its claims of making existing fuels cleaner and more efficient. The JEP held that, because the advertisement in a magazine was not promoting specific products, it was of an informative nature without absolute or misleading assertions or representations (***).
(*) Belgium, JEP, Gas.be, 8 June 2021.
(**) Belgium, JEP, Ferrero, 5 September 2013.
(***) Belgium, JEP, Shell, 27 January 2010.
In Italy, to challenge a green claim, a citizen, a consumer protection association or a company can report the case to the Institute of Advertising Self-Discipline (Istituto dell’Autodisciplina Pubblicitaria (IAP)). The IAP is an Italian association established to protect the public, consumers and businesses. It is a self-regulatory system for the entire advertising sector.
Article 12 of the Self-Discipline Code states that marketing communication about environmental benefits of a product or activity must be truthful, relevant, specific and supported by scientific evidence.
Italian Institute of Advertising Self-Discipline
In 2021, the IAP determined that the advertisement for ‘Freshly Cosmetics’ violated the Self-Discipline Code by highlighting the company’s sustainability and qualities such as ‘natural’, ‘vegan’ and ‘sustainable’ without providing any evidence to support these claims. Moreover, the use of the term ‘sustainable’ did not specify how the environmental benefit was achieved, making it a generic and inadmissible claim.
Source: Italy, IAP, Injunction n. 50/21 of 2 December 2021.
Any person claiming to be harmed by a commercial communication that is contrary to the Self-Discipline Code may submit a written complaint to the IAP’s so-called Giurì. Giurì members are university professors in relevant fields of law (e.g. commercial law, private law, economic law) and may not exercise their professional activity in the field of commercial communications to ensure their independence and impartiality when taking decisions. Giurì may order termination of an advertisement. In cases of non-compliance, the IAP announces the non-compliance in the press. Its decisions are public.
In the Netherlands, consumers may turn to the Advertising Code Committee (Reclame Code Commissie (RCC)) with a complaint based on the self-regulatory Code for Environmental Advertising and the general part of the Dutch Advertising Code. These codes help ensure that advertisements do not make misleading or unsubstantiated environmental claims. The burden of proof lies with the advertiser. The RCC provides recommendations, and, while there are no sanctions for failure to comply, the procedure can result in advertisements being banned from media platforms. Parties may appeal to the Board of Appeal of the Advertising Code Foundation.
The Netherlands: examples of cases before the RCC
Arla, a producer of organic dairy products, claimed in its advertisements that its products are climate-neutral. In 2022, the Board of Appeal found the advertisements to be misleading, because the claim ‘climate-neutral’ was not immediately recognisable to the average consumer as a reference to a certified climate-neutral quality label obtained by the company, and could be interpreted as a self-standing claim (*).
KLM claimed that its emissions could be offset by travellers, making their flights climate-neutral. KLM’s advertisement claimed that travellers can compensate for their emissions, resulting in CO2-zero emissions. Plaintiffs argued that the terms ‘CO2 neutral’, ‘CO2ZERO’ and ‘Compensation of CO2 emissions’ may be interpreted by the average consumer as reducing net emissions and that flying has no negative impact on the climate. The Advertising Code Committee found that KLM could not prove this claim and misled its customers. As a result, the committee recommended in 2022 that KLM stop this advertising. KLM adjusted one of its statements to clarify that consumers can ‘reduce’ their impact instead of ‘neutralise’ it (**). (See also the judicial proceedings against KLM)
In a complaint against an advertisement campaign by Royal Dutch Shell that included ‘Make the difference. Drive CO2 neutral’ and claimed that drivers could compensate the effects of the use of fossil fuels, the Advertising Code Committee found in 2021 that the advertisements were misleading and ordered their discontinuation. The committee noted that the statements were too absolute in terms of guaranteeing a result that is not certain. The company had not demonstrated its claim that CO2 emissions from driving did not have any negative impact on the environment (***).
(*) Netherlands, RCC, 06 July 2022, 2021/00472 – CVB.
(**) Netherlands, RCC, 8 April 2022, 2021/00553.
(***) Netherlands, RCC, 27 August 2021, 2021/00190.
In Bulgaria, the National Ethical Standards for Advertising and Commercial Communication were established in 2009 by the National Council for Self-regulation and updated in 2020 to include more detailed section on environmental statements. These standards are mandatory for members of the council , and a committee has been created to handle complaints and ensure compliance. Interestingly, no complaints related to environmental issues have been received since the inclusion of the environmental considerations.
In Germany, the Centre for Protection against Unfair Competition is the largest and most influential self-regulatory institution operating nationwide to enforce the law against unfair competition. It also promotes companies' own responsibilities.
Ecolabels provide information to consumers about the environmental performance or attributes of a product or service through a label or logo. They can help consumers make informed choices and encourage producers to improve their environmental standards, thereby empowering the consumers as rights holders and supporting environmental sustainability objectives.
This section considers national examples that illustrate approaches to the certification criteria and monitoring of ecolabels.
Member States implement several EU sustainability-related labels, such as energy labelling and ecodesign. The market surveillance authorities are usually responsible for monitoring and enforcement. For example, the European regulation on energy labelling was introduced to provide consumers with information about the energy consumption and resources used by certain products, allowing them to compare different options on the market. The ecodesign directive sets ecological requirements for energy-related products, aiming to reduce energy consumption and greenhouse gas emissions. The proposal for a new ecodesign for sustainable products regulation, which is part of the European Green Deal initiative, expands the scope of the directive to cover all products and includes additional requirements such as durability, reparability and environmental footprints.
The EU Ecolabel is a scheme created in 1992 that promotes environmentally friendly goods and services. The EU Ecolabel is awarded to products or services that have a reduced environmental impact throughout their life cycle. It helps consumers recognise more environmentally friendly products or services. It is recognised by all EU Member States and by Iceland, Liechtenstein and Norway. It uses standardised processes and scientific evidence to determine which products have a lower environmental impact than comparable products. The label, featuring a flower and 12 blue stars, aims to help consumers identify these products.
The Eco-Management and Audit Scheme (EMAS) and the International Organization for Standardization standards, particularly ISO 14001 and ISO 14024, play significant roles in the context of ecolabels. EMAS is a premium environmental management tool developed by the EU that helps organisations optimise their internal processes, achieve legal compliance, reduce environmental impacts and use resources more efficiently. EMAS-registered organisations can use their environmental statements and the official EMAS logo to signal their commitment to environmental performance, backed by real data. However, as the registration is strictly related to the activity of an organisation, the EMAS logo must not be used on products or their packaging to avoid misleading customers.
While EMAS focuses on the environmental management of organisations, the EU Ecolabel focuses on the environmental impact of products or services. Both schemes are complementary and aim to promote environmental sustainability, but they target different aspects of the production and consumption process.
In addition, there is a growing number of private labels that indicate the environmental impact of everyday products. Some criticisms of ecolabels include the risk of greenwashing when private, unregulated ecolabels are utilised. In addition, concerns may arise regarding potential redundancy if multiple ecolabels certify the same attributes; the high costs of certification, which may be a hindrance for smaller producers; and the challenge of effectively substantiating a positive impact.
Several countries endeavour to regulate and monitor these labels to protect consumers or issue more reliable governmental certifications.
The Austrian Ecolabel (Umweltzeichen) is given to products and services that meet strict standards for environmental protection and quality. An ecolabel guideline is drawn up by an expert committee chaired by the Association for Consumer Information (Verein für Konsumenteninformation) on the proposal of the Environmental Label Advisory Board, an advisory body to the Minister of the Environment. These guidelines are reviewed every 4 years and consider the product’s entire life cycle. The Association for Consumer Information (acting on behalf of the Federal Ministry for Climate Action, Environment, Energy, Mobility, Innovation and Technology) conducts inspections on products to ensure that the Austrian Ecolabel is being used correctly. According to the ministry, the majority of label users apply it correctly; however, market monitoring is still seen as crucial to maintaining its credibility. The governmental website Label-Kompass includes information on quality labels for sustainable products. In addition, the Consumer Information Association examines and questions environmental advertisements on the Greenwashing-Check website.
The Ministry of Environment and Water in Bulgaria is responsible for granting the EU Ecolabel, but it has awarded very few licences compared with other EU Member States. Various public authorities have also implemented certification programmes to recognise environmentally responsible businesses, such as an annual competition for an ecolabel for sustainable buildings organised by Sofia Municipality. However, compliance with the criteria after the award is not monitored.
Promising practice: Bulgaria – providing more complete information on small packaging
Some Bulgarian companies use QR codes on small packages to give consumers more information about the environmental impact of products. However, the information is not verified by any official rules or procedures.
Source: Consultation with a representative of a large food corporation in Bulgaria.
The Danish Ministry of Environment actively informs citizens on environment issues through different initiatives and communication channels, including two voluntary type I ecolabel third-party certification schemes. Ecolabeling Denmark offers labels such as EU-Blomsten (the EU Ecolabel) and Svanemærket (the Nordic Swan Ecolabel) to companies that meet specific environmental requirements. Ecolabeling Denmark is part of Danish Standards (Dansk Standard). It is a commercial fund, but it has signed a performance contract with the Danish Environmental Protection Agency concerning the EU and Nordic ecolabels.
Svanemærket is a Nordic label and EU-Blomsten is an EU label. The main difference lies in their market coverage, with more product groups eligible for Svanemærket than EU-Blomsten. Companies can apply for a label to Ecolabelling Denmark if they meet all the specific requirements for their product group, outlined in a ‘criteria document’ for EU-Blomsten and Svanemærket, respectively.Companies pay a fee when applying for the labels and also when renewing, changing and using the licence.
The requirements for eco-labelled products vary depending on the type of product at issue. Manufacturers must meet the regularly evaluated requirements to keep using the label. Failure to comply may result in losing the licence. In extreme cases, they may report a company to the police. According to a 2021 report from Ecolabelling Denmark, only minor violations of labelling criteria were found during its inspections.
The trust attached to a label can be illustrated by a 2022 decision of the Danish Consumer Ombudsman, which confirmed that a company can use the phrase ‘a more environmentally friendly choice of floor paint’ because the products have been certified by EU-Blomsten, the indoor climate certification scheme (Indeklimamærket), the Forest Stewardship Council (FSC) certification and Svanemærket.
In Germany, several federal ministries have introduced sustainability initiatives emphasising different aspects of sustainability and employing different strategies, from consumer education and information to supply chain due diligence through verifiable labels.
In Germany, a 2019 study estimated that there are around 9 670 institutions offering environmental and nutrition advice. The consumer protection organisations provide information on their websites and in person through a network of information centres. As ‘independent, largely publicly funded, non-profit organisations’, they are seen as credible and trustworthy. The Federation of German Consumer Organisations website provides educational materials on sustainability matters. The magazine ÖKO-TEST, partly publicly funded, focuses on harmful substances in consumer products and also tests for durability and repairability. The online portal utopia.de provides rankings for sustainable products and background information on environmental and labour aspects. Public broadcasting channels also offer programmes dedicated to consumer affairs, such as ZDF Wiso or WDR Markt. This is as a good example of how public broadcasters can effectively carry out their public mission of providing informative, educational and unbiased content to the general public.
Environmental and consumer organisations interviewed noted that well-trusted labels such as the ‘Blue Angel’ should increase the frequency of recertification, use independent third parties for analysis and move away from funding label initiatives through licensing fees [19] Interview with consumer organisation on 4 October 2022; interview with environmental organisation on 6 October 2022. . All sustainability labels should be based on accredited standards that fulfil legal minimum requirements and are audited by independent third parties [20] Written information provided by consumer organisation on 15 October 2022. .
However, one of the consumer organisations highlighted the main concerns regarding these government sustainability initiatives:
Moreover, all these information and transparency initiatives tend to place the responsibility of sustainable consumption on consumers, who are unable to change the outcomes of the production process through their purchasing decisions.
The ‘Made Green in Italy’ label is the first national certification scheme on the Product Environmental Footprint, which was established in 2016 to assess and communicate the environmental impact of products. This voluntary scheme, promoted by the Ministry of the Environment, provides both quantitative and qualitative information on a product’s environmental performance through a logo and a product environmental footprint statement. The Ministry of the Environment grants companies a licence to use the label for 3 years after a positive verification by an accredited certification body, according to the conditions set out in the reference regulation. Accredia, the single accreditation body, is a private body appointed by the Italian Government to certify the competence and impartiality of certification bodies and laboratories.
The Netherlands Authority for Consumers and Markets called on the Dutch government to propose legislation that empowers consumers to make sustainable choices when it comes to packaging and products. Research has shown that consumers cannot currently make informed choices regarding sustainability because of numerous confusing and privately awarded labels. Businesses often provide misleading information about sustainability, as confirmed by recently completed investigations into the fashion industry and the energy sector. The government should therefore establish labelling that is accredited by a governmental or other independent body.
Due to the large number of labels available, the system lacks transparency, and consumers must search for additional information online to understand the environmental impact of products from production to sale. This also applies to packaging. The Food Centre (Voedingscentrum) recommends 12 labels for food information, most of which also pertain to the environment. Focus on the Environment (Milieucentraal) provides explanations for labels, including 27 labels specifically for meat, about half of which are related to the environment. This demonstrates the difficulty in making choices for food, let alone for all products and services.
Consumers struggle to make informed decisions about sustainability because of the abundance of ecolabels in the market. Many of these are confusing and only a few of them actually help consumers choose environmentally better products. To assess ecolabels, consumers should prioritise transparency and be cautious of companies declaring their products to be environmentally friendly. It is necessary to have clearer and more standardised eco-labelling practices to prevent consumer confusion and enhance trust in sustainability claims.
The Aarhus Convention of 1998 is a United Nations Economic Commission for Europe convention on access to information, public participation in decision-making and access to justice in environmental matters. The EU and its 27 Member States are all parties to the Aarhus Convention. The convention links environmental rights and human rights. It protects every person’s right to live in a healthy environment and guarantees the public three key rights on environmental issues: access to information, public participation in decision-making and access to justice.
It acknowledges that sustainable development can be achieved only through the involvement of all stakeholders, including consumers. It also guarantees the right to receive environmental information held by public authorities, which can help consumers make informed environmental choices. In addition, the convention establishes that every person has the right to live in an environment adequate for their health and well-being, which includes protection from environmental harm caused by consumer products. Article 5(8) of the convention provides that each party shall develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner that enables consumers to make informed environmental choices.
Access to information refers to the public’s right to receive environmental information held by public authorities. This includes information on:
The access to environmental information directive aims to ensure that environmental information is systematically made available by the authorities to the public either actively or on request. The directive contains provisions that are in compliance with the Aarhus Convention. The Aarhus regulation (No 1367/2006) extended Regulation (EC) No 1049/2001 regarding public access to environmental information to all EU institutions and bodies. It was revised in 2021 by Regulation (EU) 2021/1767 to allow for better public scrutiny of EU acts affecting the environment by NGOs and members of the public. The revision increased the range of decisions that may be subject to internal review.
In Poland, the Aarhus Convention was implemented in the Act on Environmental Information, Public Participation and Environmental Impact Assessments (hereinafter the ‘EIA act’) [21] Poland, Act of 3 October 2008 on Providing Information on the Environment and Its Protection, Public Participation in Environmental Protection and Environmental Impact Assessments (‘Ustawa z dnia 3 października 2008 r. o udostępnianiu informacji o środowisku i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko (t.j. Dz. U. z 2022 r. poz. 1029 z późn. zm.)’), 3 October 2008. . The act provides access to environmental information that public authorities hold [22] Article 8 of the EIA act. . Anyone can request such information from public authorities. The entity requesting information is not required to demonstrate a legal or factual interest [23] Article 13 of the EIA act. .
The law allows access to environmental information to be denied in certain cases, such as when data is protected, in case of pending legal proceedings, in cases involving intellectual property rights violations and for public security reasons [24] Article 16 of the EIA act. . Third-party information of commercial value, including technological data, may also be excluded from disclosure if submitted with a justification for a deterioration in competitive position [25] Article 16(1)(7) of the EIA act. . However, denial of access must not be automatic and the public interest must be considered in every case [26] Poland, Provincial Administrative Court of Warsaw (Wojewódzki Sąd Administracyjny w Warszawie) IV SA/Wa 2854/17, 19 March 2018. .
In practice, public authorities tend to apply this exception automatically if the company claims that releasing the requested information would result in a deterioration of its competitive position. However, administrative courts have taken the view that the company must always prove the plausibility of such a deterioration.
In France, the right to access to environmental information is provided for in several provisions of the law. Article 7 of the Environmental Charter, which has constitutional value as of 2005 and has direct effect, provides that ‘everyone has the right, under the conditions and to the extent provided in law, to access environmental information held by public bodies and to participate in public decisions that affect the environment.’
Public authorities have the obligation to provide environmental information held by or for them to anyone on request, without having to demonstrate an interest. The grounds for refusal in the Environmental Code include, inter alia, the risk that the disclosure of information infringes France’s foreign policy, public security, national defence, the safety of persons or administration information systems or the progress of ongoing legal proceedings.
An example is the petition filed by Greenpeace France in 2021 before the Commission on Access to Administrative Documents to challenge the implicit refusal of the Louvre Museum to disclose administrative documents relating to its partnership agreements with TotalEnergies Foundation. The Commission on Access to Administrative Documents issued a favourable opinion for Greenpeace.
The grounds for refusal of access to information are sometimes interpreted too broadly. Commercial or industrial confidentiality are, for instance, too often invoked to block free access to information [27] Implementation report submitted by France on the Aarhus Convention (2017), p. 8, available here: UNECE Aarhus Convention NIRs 19 01 2024 | Aarhus Clearinghouse Regarding the expanded definition of commercial secrecy since 2018, see General Council forenvironment and sustainable development and the General inspection of Justice (Conseil général de l’environnement et du développement durable (CGEDD) et de l’Inspection générale de la justice (ICJ)), Report “Justice for the Environment” (“Une justice pour l’environnement”), October 2019, p.35. . In addition, the possibility of review in the event of improper use of this power has been criticised because of long delays (proceedings can take up to 2 years), especially since the relevance of the information requested fades with time [28] See examples relating to the timber sector quoted by Monnier, L. and Gonzalez, C., ‘La démocratie administrative mise à mal par l’opacité de l’Administration’, Actu Environnement, 2021. .
The right to be informed can also be hampered by delays in the response of the administration due to lack of human resources or means [29] See, for instance, the implementation report submitted by France on the Aarhus Convention (2017), which mentions the lack of resource to process requests in some administrative authorities (p. 8). or knowledge of the topic.
In Austria, the application and administration of the Federal Environmental Information Act and relevant provincial acts are decentralised and thus carried out by the provinces or by district administrative and municipal authorities. The Austrian Environmental Agency (Umweltbundesamt) operates as a coordination office for environmental information and has the mandate to contribute to the improvement of environmental information. The requirement for the development of active environmental information systems is not fully implemented. Often, a direct enquiry to the responsible authorities such as district authorities and municipalities is necessary. The Federal Environmental Information Act stipulates that operators of facilities that are obliged to measure and record emission data must actively disclose this environmental information on their own initiative. In practice, some businesses voluntarily publish environmental information, such as through environmental statements or sustainability and activity reports. The present research did not unveil further practical implementation or specific Austrian case-law based on the above provisions.
In Belgium, the Aarhus Convention is implemented at the regional and federal levels indirectly through reference to Article 32 of the Constitution of Belgium, granting citizens a right to obtain a copy of a document stemming from a public authority. For example, in the Walloon Region, the Environmental Code allows citizens to request access to information on documents related to an environmental aspect such as applications for town planning or environmental permits, municipal development plans or impact studies. The code lists a [https://www.uvcw.be/focus/environnement/art-23092] to that right of access to information in line with the access to environmental information directive, such as confidentiality of personal data, intellectual property rights or confidentiality of commercial or industrial information. However, according to a recent assessment, the current legal framework does not fully comply with the directive, affecting citizens’ access to information about the environmental impacts of certain projects [30] Milieu, Conformity Study for DG ENV, Transposition by Belgium of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2014/52/EU, December 2019. .
Hundreds of requests to access environmental information are listed in the database of the Walloon Appeals Commission for the right of access to information on the environment, for example related to the general interest to access environmental information versus the specific interest not to divulge information owing to intellectual property rights. However, these provisions do not give the right for a consumer to claim the right to information directly against a business.
The main law in Bulgaria related to access to information on environmental matters is the Environmental Protection Act. The Access to Public Information Act provides the general legal rules on access to public information and applies in the absence of a special provision in the Environmental Protection Act.
The Environmental Protection Act fully transposes the definition of “information on environmental matters” envisaged in the Convention and states that “every person has the right to access information on environmental matters without the need to justify their interest (article 17). The right to request information is limited to public authorities and it is not possible to request information directly from business entities. However, the information requested from public authorities can concern third parties, which are broadly defined as ‘any natural or legal person providing public services relating to the environment and carrying out this activity under the control of the authorities which collect and process environmental information’. In such cases, the public authority must request the information from the third party and provide it to the person requesting it. Access to public information on environmental matters can be denied under certain specific conditions explicitly listed in the Environmental Protection Act, for example when the information is classified as a state, trade or official secret or when the information is subject to intellectual property rights.
Although there is no publicly available statistical data on the number of applications for access to information on environmental matters and their outcomes, several court cases reveal challenges in the application of the Aarhus Convention (see Box below).
Bulgaria: access to environmental information under the Aarhus Convention
In 2015, the Bulgarian branch of the World Wildlife Fund requested information on Pirin National Park’s management and contracts with third parties. The park director rejected a request for information owing to lack of consent from contractors. However, the administrative court revoked the refusal, deeming the contractor’s refusal unfounded as their interests were not affected, and the prevailing public interest was not properly considered by the administrative authority. This case demonstrates how the court resolved a conflict between the interest of a third party (protecting their reputation) and the public interest (*).
The environmental association For the Earth requested a report from the Ministry of Environment and Water on reducing harmful substance emissions from large combustion plants. The minister refused access owing to the report’s preparatory nature. The five-member panel of the Supreme Administrative Court held that the requested information constituted environmental information under the Aarhus Convention and the Environmental Protection Act, as it concerned environmental impact of emissions. The information was later used to file a lawsuit against the Municipality of Sofia. The court held that the provision of the general access to public information law, which permits the restriction of access to preparatory documents, did not apply to environmental matters, specifically those related to emissions of harmful substances (**).
(*) Bulgaria, Administrative court Blagoevgrad, Decision No 639 on case No 8/2016, 6 April 2016.
(**) Bulgaria, Supreme Administrative Court, Decision No 11951 on case No 7396/2014, 9 October 2014.
The right of access to information in Germany is covered by the Environmental Information Act (Umweltinformationsgesetz). In 2020, the Federal Environmental Agency commissioned a study to evaluate the (federal) Environmental Information Act; it concluded that the ‘right to access to environmental information is still widely unknown’ and only 52 cases relating to the federal Environmental Information Act came before administrative courts. During the diesel emissions scandal, the federal Environmental Information Act was successfully used to obtain information from federal ministries and agencies.
The study noted that consumer organisations were expected to make more use of the Environmental Information Act and confirmed that consumer organisations indeed rely on this act when claims under the Consumer Information Act do not achieve the desired result.
Furthermore, the Consumer Information Act, which is not based on EU law but was introduced as a response to food industry scandals [31] Herrmann, Beck Online Commentary Administrative Procedure Act (Verwaltungsverfahrensgesetz), Bader/Ronellenfitsch, 56th edition, 1 July 2022, APA s. 29, access to information for parties to the proceedings (Akteneinsicht für Beteiligte), para. 55. , allows anyone to access information without needing to prove a legitimate interest, similar to other freedom of information acts. The act covers information about consumer products, including health and safety risks, and information such as composition, labelling, origin and production of consumer products. Provisions of the act may potentially overlap with the Environmental Information Act.
Germany: information relating to animal protection is not environmental information
The Federal Administrative Court denied access to information on potential violations of animal welfare provisions related to livestock transport, despite their relevance for consumer decisions and environmental impacts of factory farming. The court deemed the information on farmed animals as not related to ‘biological diversity’, as defined in Directive 2003/4/EC and the Aarhus Convention.
Source: Germany, Federal Administrative Court, BVerwG 10 C 11.19, judgment of 30 January 2020.
In Denmark, the Environmental Information Act provides broader access to information regarding environmental matters than the Danish Public Information Act. It applies in particular to information on emissions and information that is (exclusively) included in public statistics or scientific studies.
The Aarhus Convention was ratified in Italy by Law No 108/2001. An example of the application [32] Input received by academics from the Italian National Research Council and also from activists of the Italian Clean Clothes Campaign. of the Aarhus Convention in the present context is the case filed by the environmental NGO A Sud and 200 plaintiffs in June 2021 before the Civil Court of Rome, alleging that, by failing to take action necessary to comply with Paris Agreement targets, the Italian government violated fundamental rights, including the right to a stable and safe climate. This could also give rise to non-contractual liability under the Civil Code. The action was part of the ‘Giudizio Universale’ campaignand aimed to obtain a declaration that the government’s inaction is contributing to the climate emergency and a court order to reduce emissions by 92 % by 2030 compared with 1990 levels. The case is still pending.
The Netherlands implemented the Aarhus Convention in the Environmental Management Act and the Government Information (Public Access) Act. Dutch case-law [33] See, for example, Case no ROT 21/18, 2022, Case no 202006761/1/A3 and Case no 202004537/1/A3. shows that the courts take great care to balance the right of civil servants to express their opinions against the interest in access to environmental information. The case-law shows that in practice there is a broad, and not restricted, interpretation of the concept and scope of environmental information [34] The Netherlands, Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak Raad van State), Case no 202101970/1/A3, 18 May 2022. .
The Aarhus Convention is therefore an important tool for promoting transparency, accountability and public participation in environmental decision-making, which can help to ensure that consumers have access to accurate and reliable information about the environmental impact of products and services.
Laws pertaining to due diligence can play a role in protecting the rights of consumers and increasing the proportion of sustainable products in the economy as a whole, thereby advancing environmental protection and sustainability goals.
According to the OECD guidelines for multinational enterprises on responsible business conduct – Chapter VIII of which is specifically dedicated to ‘Consumer interests’ – enterprises, ‘when dealing with consumers’, ‘should act in accordance with fair business, marketing and advertising practices and should take all reasonable steps to ensure the quality and reliability of the goods and services that they provide’. The reporting framework on the UNGPs also refers to consumers as among the individuals or groups that may be affected by business activities and relationships. Their rights should therefore be an integral part of due diligence processes.
Some EU Member States have already adopted national due diligence legislation, such as France, Germany and Portugal, but the implementation practice has yet to be established.
The majority of due diligence laws adopted or proposed do not specifically address the negative effects of corporate activities on climate change or the environment. However, the experts involved in this study noted the potential use of such instruments.
This research did not identify cases brought on the basis of the national due diligence laws invoking infringement of consumer rights. So far, such laws relate more broadly to human rights and environmental protection and climate change.
Experts from France pointed out that, even since the duty of vigilance law has been in effect, NGOs continue to use provisions relating to misleading commercial practices against big corporations such as TotalEnergies to hold companies accountable for their corporate social responsibility commitments and to protect the environment.
As the connection between consumer rights and larger societal concerns becomes clearer, it is likely that more specific laws or litigation will emerge targeting the infringement of consumer rights in relation to environmental and social responsibility matters. This shift would not only hold companies accountable for their actions but also empower consumers to make informed choices that align with their values.
