No. 113: Greenwashing and the European Green Deal: Recent Developments with a Special Focus on the German Legal Situation
Abstract
The master’s thesis deals with the main topic of the European Green Deal and the fight against greenwashing, meaning the advertisement with unverifiable or false environmental claims. The main focus is on the EU Consumer Empowerment Directive (Dir (EU) 2024/825) and the draft EU Green Claims Directive (COM(2023) 166 final). With both directives, the EU legislator intends to fight misleading practices and to enable consumers to make informed decisions. These aims are supposed to be achieved by imposing obligations on traders, in particular information duties. The Consumer Empowerment Directive amends the EU Unfair Commercial Practices Directive (Dir 2005/29/EC), especially by adding several prohibitions to the blacklist of the Annex. The EU Consumer Rights Directive (Dir 2011/83/EU) is amended by mainly adding additional information duties. This raises the problem that consumers can only process information to a certain extent (information overload). The draft Green Claims Directive establishes a new legal framework for environmental claims and environmental labels. It provides for substantiation, communication and verification via a certificate of conformity issued by an independent verifier. What is decisive is that such a procedure must be completed before making an environmental claim public or displaying an environmental label (ex ante). Especially small and medium-sized enterprises and micro-enterprises will face considerable financial burdens. This is accompanied by a significant risk that traders will cease to make any environmental claims in future because the associated costs and risks are considered too high (greenhushing). Exemplarily, the legal situation in Germany is analyzed with respect to the (expected) impact of the two directives at the national level. There is not yet a German law on environmental claims, but the Law Against Unfair Competition (Gesetz gegen den unlauteren Wettberwerb – UWG). Additionally, case law has developed. The German Federal Court of Justice (Bundesgerichtshof – BGH) recently decided on misleading advertising with the term ‘climate neutral’. It is in particular the Green Claims Directive that will (if retaining the current draft) impose considerable bureaucratic and financial burdens on traders. Overall, it is questionable whether this approach serves the fight against greenwashing, the empowerment of consumers and the ultimate aim of climate protection.