Enforcing consumer rights to combat greenwashing.
Date: 2025-03-06
Institutions: European Union Agency for Fundamental Rights
Subjects: EU Member State, application of the law, consumer information, consumer law, greenwashing, indemnification, report

Contents

Key findings

A human rights approach to environmental protection empowers consumers
Environmental protection – the advantages and limitations of consumer laws
Adopting more precise legal frameworks to ensure uniform interpretation
Ensuring effective enforcement of rights

Dissuasive sanctions
Rules on burden of proof and disclosure of information

Enhancing cohesion of the supervisory system
Representative action and procedural rights of civil society organisations
Significance of awareness-raising

Introduction

Human rights implications of ‘greenwashing’
Legal and policy background

EU law on consumer and environmental protection
Recent EU developments addressing greenwashing
EU commitment to international instruments
Due diligence and reporting

Methodology
Structure

1. Consumers’ right to reliable information and environmental impact

1.1 Combating greenwashing as a misleading commercial practice

1.1.1. Applying rules on misleading practices in cases of greenwashing
1.1.2. Enforcement

1.2. Carbon-neutral and carbon ‘offsetting’ claims
1.3. Combating greenwashing through advertising regulations

1.3.1. Judicial and administrative measures
1.3.2. Non-binding self-regulatory codes

1.4. Labels and certification
1.5. Aarhus Convention provisions relevant to consumer protection
1.6. Due diligence and reporting obligations

2. Legal requirements for enforcing collective consumer and environmental rights

2.1. Collective consumer actions relating to the environment

2.1.1. Enforcement under general consumer law
2.1.2. Environmental claims regulated by specific legislation
2.1.3. Environmental claims dispersed in different laws

2.2. Legal standing in collective actions relating to the environment
2.3. Requirement of harm and possibility of actio popularis
2.4. Burden of proof in collective consumer and environmental claims

3. Ways forward

3.1. Ensuring effective enforcement of rights
3.2. Enhancing cohesion of the supervisory system
3.3. Representative action and procedural rights of civil society organisations
3.4. Training and awareness-raising
3.5. Guidance for business
3.6. Incorporating sustainability into consumer protection policy
3.7 Due diligence and reporting

Endnotes

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About this publication

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Key findings

Human rights and the environment are intrinsically linked: a clean, healthy and sustainable
environment is essential to the enjoyment of a range of human rights. Under international
human rights treaties and the EU Charter of Fundamental Rights, governments have an
obligation to protect, respect, promote and fulfil all human rights. This includes an
obligation to prevent foreseeable harm to rights, such as that presented by climate change.
There is growing recognition of these links in international soft law and in regional human
rights frameworks.

The key messages on human rights and climate change of the Office of the United Nations
High Commissioner for Human Rights highlight the human rights obligations of states and
the responsibilities of other actors, including businesses, with respect to climate change-
related agreements, policies and actions.

Protecting consumer rights and protecting the environment can align in several ways, since
both aim to promote sustainable practices and responsible consumption by addressing
green marketing, encouraging sustainable consumption and consumer education, and
combating ‘greenwashing’.

Greenwashing refers to the practice of conveying false or misleading information about the
environmental friendliness of a company’s products. It involves using deceptive advertising
or marketing tactics to convince the public that the company’s products, goals and policies
are environmentally sound. It can be found in advertising, sponsorship and public
messaging in the media, including on social media. Examples of greenwashing can range
from simply changing the name or label of a product to make it seem more natural, even if it
contains harmful chemicals, to launching elaborate and expensive campaigns that portray
highly polluting companies as being eco-friendly.

In today’s dynamic business landscape, companies are faced with growing demands from
consumers, governments and investors to embrace sustainability and address climate
change. Regrettably, however, some companies seek to capitalise on the increasing
demand for environmentally friendly products and use greenwashing to project an image of
social responsibility without actually changing their operational practices, thus diverting
public attention from the negative impact these may have. Greenwashing therefore results
in a range of potential harms to consumers as rights holders, by deceiving and
disempowering them through encouraging economic choices that do not in fact advance
sustainability goals.

Recognising the potential role of consumers in advancing responses to climate change has
led the EU and national legislators to connect consumer and environmental protection in EU
legislative and policy initiatives.

The European Green Deal emphasises the importance of empowering consumers to make
informed decisions. The 2022 proposal on empowering consumers for the green transition ,
adopted in February 2024, aims to strengthen consumer rights, in particular by revising the 
unfair commercial practices directive (UCPD), in order to expressly address greenwashing
practices. In addition, a 2023 proposal for a new green claims directive provides more
specific rules on substantiation and communication of environmental claims.

The report examines legal frameworks in selected EU Member States (Austria, Belgium,
Bulgaria, Denmark, France, Germany, Italy, the Netherlands, Poland and Portugal) to assess

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whether they ensure consumers’ access to accurate information about the environmental
effects of products and services, and whether they hold companies accountable for making
misleading green claims (greenwashing). This report presents examples of the application
of existing legislation, where available, and points to shortcomings or inconsistencies in its
implementation. In addition, the report identifies areas for improvement and proposes
solutions to address the gaps in effective protection (see Chapter 3on ways forward). The
findings are relevant for EU and national policymakers, and also for enforcement bodies
when implementing provisions targeting misleading environmental claims.

A human rights approach to environmental protection empowers
consumers

Adopting a human rights approach to environmental protection and corporate climate
accountability requires a focus on the obligations of governments and the responsibilities of
large companies, and also on empowering consumers as rights holders.  It can help promote
sustainable consumption, as it encourages consumers to make choices that are good for
both themselves and the environment. Tackling greenwashing is an example of an issue for
which human rights, consumer rights and climate goals align.

Furthermore, consumer empowerment depends on access to information and effective
access to justice to ensure the enforcement of rights. As demonstrated by the European
Union Agency for Fundamental Rights (FRA)’s prior research on business and human rights,
the presence of procedural obstacles frequently prevents individuals from asserting their
rights against corporations, thereby rendering those rights ineffectual. A rights-based
approach to environmental protection also aims to increase access to justice not only for
individual victims but also for communities. This includes allowing non-governmental
organisations (NGOs) to represent communities and protect the environment in the public
interest. In July 2022, the United Nations General Assembly adopted 
a resolution declaring that everyone has the right to a healthy environment . Allowing NGOs
to challenge greenwashing without having to prove individual harm is therefore consistent
with emerging international law and acknowledges the right of communities to actively
participate in shaping policies related to climate change.

Environmental protection – the advantages and limitations of

consumer laws

Environmental protection can be improved through more effective protection of consumer
rights. Incorporating sustainability into consumer protection policy can promote economic
and social development and environmental goals.

Consumer protection laws can empower consumers to make informed decisions and hold
businesses accountable for the negative environmental impacts that may result from
misleading claims, but their potential may be hindered by lack of awareness and procedural
obstacles.

The research suggests that consumer law is more effective than administrative
environmental law in addressing greenwashing. This is because consumer law is
specifically designed to protect consumers from deceptive advertising, whereas
administrative environmental law focuses primarily on regulating environmental impact.
Consumer law offers legal protection and advantageous procedural rules to consumers who

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have been misled by greenwashing claims, and it can result in penalties for companies
involved in such practices. In contrast, environmental law may not have the same extent of
enforcement measures, and experts did not identify the legal possibility to tackle
greenwashing through traditional environmental laws in most countries covered by the
research. Furthermore, laws on access to environmental information are primarily directed
towards public authorities and not corporations; therefore, their application is limited.

However, the study shows that the existing legal framework on consumer protection in
several Member States addresses environmental harm only to a limited extent. Consumer
protection laws should explicitly address the environmental impact of products and
services in order to improve their effectiveness.

Adopting more precise legal frameworks to ensure uniform
interpretation

The research found that relevant legislation applicable to greenwashing in Member States
covered by this study is the result of the EU acquis, in particular relating to unfair
commercial practices.

The broad definition of commercial practices under the UCPD has made it possible to
address greenwashing practices in several Member States, prior to the existence of EU and
national legislation explicitly providing definitions of environmental claims.

The research found significant discrepancies between Member States in the application of
the provisions on unfair commercial practices to greenwashing, not only with respect to the
interpretation of specific terms but also as regards the existence of initiatives to challenge
greenwashing at all. In some of the Member States, civil society has initiated a significant
number of legal actions, while in others few if any cases have been brought based on these
provisions.

Moreover, different approaches have emerged as to how the responsibility for the
potentially misleading communication is assigned: courts in some Member States require
companies to provide evidence for all aspects of environmental claims, while others find
that consumers have a responsibility to research information and seek alternative sources
before claiming to have been deceived.

Experts consulted in this research claimed that it is necessary to have more precise
legislation at the EU level expressly addressing greenwashing and to provide clear criteria to
be met by companies when making any kind of green statement.

The new EU legislative initiatives relating to green claims aim to address these gaps,
establishing explicit rules on the admissibility and substantiation of sustainable
performance claims.

In addition, the research shows that these proposals have triggered more detailed and
targeted legislation in Member States or have already been invoked in successful court
litigation. Thus, initiatives at the EU level can drive legislative reforms in Member States and
help strengthen laws against greenwashing, even before final adoption.

Ensuring effective enforcement of rights

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The enforcement of consumer rights to combat greenwashing may be positively or
negatively influenced by a variety of factors, such as dissuasiveness of sanctions, burden of
proof and conditions for civil-society representation.

Dissuasive sanctions

Judicial and administrative sanctions can foster prevention, namely by serving as a
deterrent against unlawful or abusive behaviour, and redress, namely by providing public
and official recognition of the wrongdoing and conveying the message that 
justice is being served.

Sanctions, such as fines, can be an effective tool to combat greenwashing if they are
sufficiently severe to be dissuasive. These can be either administrative fines or damages
ordered by courts. Administrative fines are fixed by law, and according to experts are too
small to have any significant dissuasive effect and effectively deter large corporations, to
which they are typically directed, considering large corporations’ substantial financial
resources and potential costs of misleading marketing campaigns.

This issue has been addressed in targeted legislation adopted in some countries, where
fines for greenwashing can amount to up to 80 % of the cost of the misleading promotional
campaign.

The EU plans to introduce penalties for greenwashing in the proposed 
green claims directive, including fines, confiscation of revenues and temporary exclusion
from public procurement (Article 17). The proposal highlights in recital 64 of the preamble
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 infringement’.

Rules on burden of proof and disclosure of information

The research finds that the rules concerning burden of proof can impose an excessive
burden on consumers pursuing claims.

According to the UCPD, it is for national law to determine the rules regarding burden of
proof, but courts and administrative authorities should have the power to request evidence
from businesses to support their claims. In most EU Member States studied, the burden of
proof usually rests on the company to prove that their information is correct and complete.
However, in some Member States the burden of proof falls on the plaintiff if the lawsuit is
based on the seller’s contractual obligations. In all Member States, when damages are
claimed, the consumer must prove a link between the unlawful act (such as misleading
advertising) and the harm.

As regards disclosure, the corporate sustainability reporting directive(CSRD) introduced
significant advancements in the regulations governing the disclosure of social and
environmental information by companies. It remains to be seen how this directive will
improve access to environmental information for evidence purposes.

Disclosure of information is closely linked to access to information. The EU and its 27
Member States are all parties to the Aarhus Convention, which explicitly guarantees the

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right to access to environmental information held by public authorities. The findings of this
research show, however, that in certain cases this access can be limited by law, for example
on grounds relating to protected data, pending legal proceedings, intellectual property rights
violations and public security. In addition, third-party information of commercial value may
be withheld if it could harm a company’s competitive position. Experts consulted for this
research expressed concern that these exceptions are sometimes applied too broadly,
blocking access to information, contrary to the spirit and purpose of the Aarhus Convention.
Furthermore, the review process for challenging these denials is sometimes ineffective and
slow, while the relevance of the information may diminish over time.

Enhancing cohesion of the supervisory system

National authorities in individual countries are responsible for the enforcement of EU
consumer protection laws. According to the UCPD, a Member State can decide whether
these provisions will be enforced through judicial or administrative proceedings, and
whether prior use of other avenues, such as codes of conduct, should be required. The
current proliferation of regulations at the national and EU levels, while helpful, makes the
legal landscape more complex and fragmented, rendering it potentially less effective or
even counterproductive.

The research findings and the experts consulted for this study point to the fragmentation of
the current supervisory system regarding issues such as misleading commercial practices
or access to environmental information. In addition to instances of shared competence by
administrative and judicial bodies, a number of experts highlighted the existence of multiple
national authorities responsible for overseeing various consumer rights. This may lead to
confusion among consumers about the respective competencies of supervisory bodies.

Furthermore, in some Member States the authorities can refuse to take any action when an
alleged infringement is reported, and in some Member States consumers cannot appeal
their decisions.

Representative action and procedural rights of civil society
organisations

Consumer and environmental protection associations play an important role in empowering
rights holders and protecting environmental interests. They do this by promoting
transparency and accuracy in environmental marketing, advocating for stronger consumer
protection laws, filing complaints on behalf of consumers or in the public interest and
raising awareness among consumers. Furthermore, civil-society organisations bring expert
knowledge about environmental issues, which judges may not possess, especially in cases
where companies use scientific terms to promote their products.

The 2020 representative actions directive (RAD) allows consumers in the EU to protect their
collective interests through legal action brought by representative ‘qualified entities’. The
RAD distinguishes between domestic and cross-border representative actions, with different
criteria for each, and Member States have more flexibility in setting criteria for qualified
entities in domestic actions.

The research confirms that the legal standing of NGOs in litigation relating to consumer and
environmental rights varies across Member States, which can make judicial procedures

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against multinational corporations more difficult.

In some Member States, NGOs are allowed to sue even if their rights or legal interests are
not affected by the acts or omissions in question, while in other Member States legal action
brought by an NGO based on its statutory objectives, such as environmental protection, may
be considered inadmissible in litigation based on consumer rights, owing to lack of legal
standing for such claims.

Environmental organisations are often barred from pursuing legal action in consumer
affairs, where legal standing is reserved for qualified consumer organisations. Furthermore,
in certain Member States, only nationally recognised NGOs have legal standing to file a legal
action, even though the defendant may be a multinational corporation and the alleged
environmental concerns span multiple countries and have been raised throughout the EU.

Significance of awareness-raising

Consumers who are aware of greenwashing practices are more likely to make informed
decisions and avoid products that are not environmentally friendly. This can lead to declines
in sales and customer loyalty for companies that engage in greenwashing practices. In
addition, consumers can alert market surveillance authorities and amplify the impact of
awareness-raising campaigns, and also initiate litigation.

However, complaints and the decisions of administrative bodies are often not published,
further hindering transparency and educational effect in this regard.

The research finds that raising awareness of greenwashing practices is primarily carried out
by civil society organisations who often face significant resource constraints.

Raising awareness among consumers is essential to combat greenwashing practices and
ensure that companies are held accountable for their environmental claims. In addition,
Member States’ obligation to promote human rights includes ensuring that people are
aware of their rights. Raising awareness is therefore another way to protect consumers and
the environment through a human rights approach to climate protection.

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Introduction

Human rights and the environment are intrinsically linked: a clean, healthy andsustainable
environment is essential to the enjoyment of human rights. International human rights law
imposes on governments the obligation to protect rights affected by climate change, such
as the rights to life, health, water and a healthy environment. These legal obligations should
inform and underpin the commitment towards a green transition.

This research explores the intersection of consumer and environmental protection in
national laws, with a particular focus on access to reliable information about the
sustainability of products and services and addressing greenwashing.

The purpose of the report is to inform EU policymaking, support enforcement efforts and
highlight emerging risks related to greenwashing. It provides insights, examples and
guidance to support the effective regulation of misleading environmental claims and to
protect consumer rights. The findings of the report are relevant for EU and national
policymakers, and also enforcement bodies responsible for implementing relevant
legislation.

In particular, this report examines the relevant legal framework in 10 EU Member States
(Austria, Belgium, Bulgaria, Denmark, France, Germany, Italy, the Netherlands Poland and
Portugal) to determine whether they adequately protect consumers’ access to reliable
information about the environmental impact of products and services and hold companies
liable for misleading green claims / greenwashing. The report provides positive examples
and examples of shortcomings or inconsistencies in the implementation of existing EU
legislation, identifies areas in need of improvement and offers solutions for closing existing
gaps.

Human rights implications of ‘greenwashing’

In July 2022, the United Nations General Assembly adopted a resolution recognising the
right to a clean, healthy and sustainable environment as a human right and noting that the
right to a clean, healthy and sustainable environment is related to other rights and existing
international law. The resolution calls on ‘[s]tates, international organisations, business
enterprises and other relevant stakeholders to adopt policies, to enhance international
cooperation, strengthen capacity-building and continue to share good practices in order to
scale up efforts to ensure a clean, healthy and sustainable environment for all’.

To promote an understanding of the relationship between the environment and the
protection of human rights, the Council of Europe published its 
Manual on Human Rights and the Environment, highlighting principles emerging from the
case-law of the European Court of Human Rights and the conclusions and decisions of the
European Committee of Social Rights.

The pressing need to tackle climate change has led to the introduction of several new
legislative measures by the EU. A number of these initiatives are focused on consumer
rights, with growing recognition of the role of consumers themselves in changing their
consumption habits and making more sustainable choices. But demanding sustainable and
ethical behaviour from businesses cannot be left solely to consumers or civil society.

According to the Office of the United Nations High Commissioner for Human Rights

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(OHCHR)’s 
Applying a human rights-based approach to climate change negotiations, policies and
measures
, a human rights-based approach can be used to guide policies and measures on climate
change mitigation and adaptation:

A human rights-based approach is a conceptual framework that is normatively based on
international human rights standards and operationally directed to promoting and
protecting human rights. It seeks to analyze obligations, inequalities and vulnerabilities and
to redress discriminatory practices and unjust distributions of power that impede progress
and undercut human rights.

Taking a human rights approach to environmental protection and corporate climate
accountability means focusing on the obligations of governments and the responsibilities of
large companies, rather than on choices of individual consumers. It also implies
empowering the consumer as a rights holder. This approach aims to prevent the worst
impacts of climate change on a large scale and prioritises the protection of rights holders
and affected communities.

Tackling misleading environmental claims – ‘greenwashing’ – aligns with Article 38 of the
Charter of Fundamental Rights of the European Union (the Charter), which provides that the
EU shall ensure a high level of consumer protection, as it aims to ensure that environmental
claims are reliable, comparable and verifiable. It also aligns with the goal of maintaining a
high level of environmental protection in accordance with Article 37 of the Charter.
Furthermore, combating greenwashing will help advance fair competition among
businesses in promoting their environmental friendliness, which ultimately protects their
freedom to conduct business as guaranteed be Article 16 of the Charter.

A human rights-based approach to corporate climate accountability is rooted in the concept
of human rights due diligence  defined in the 
UN Guiding Principles on Business and Human Rights (UNGPs), which affirm that business
enterprises have a responsibility to respect human rights, should be accountable for their
impacts on the climate and should participate responsibly in climate change mitigation and
adaptation efforts with full respect for human rights.

OHCHR highlights the importance of incorporating human rights principles into corporate
climate accountability efforts in its 
Frequently Asked Questions on Human Rights and Climate Change  : The corporate
responsibility to respect human rights requires that business enterprises take a human
rights-based approach to climate action, drawing upon the human rights principles of
participation, non-discrimination, transparency, accountability and empowerment.

In this context, the EU put forward a 
proposal for a directive on corporate sustainability due diligence (CSDDD)  to advance
sustainable and responsible corporate conduct, and to ensure that human rights and
environmental concerns are embedded in companies’ operations and governance. The core
elements of this duty include identifying, terminating, preventing, mitigating and accounting
for negative human rights and environmental impacts in the company’s own operations, in
those of their subsidiaries and in their value chains. That includes accountability not only for
their actions, but also for ensuring accurate, transparent and ethical communication
practices.

Communication plays an essential role in prompting a collective response to climate

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change, as stressed by the Intergovernmental Panel on Climate Change and others (e.g.
Depoux et al.). The primary objective of communication is to raise awareness, foster
agency and participation among individuals and ultimately empower rights holders to make
proactive and informed decisions. Such objective of communication is connected to the
state obligation to promote human rights, since, without such awareness, rights holders
cannot claim their rights. To achieve this, therefore, it is imperative to safeguard individuals’
right to access to the information needed (Article 11 of the Charter).

Greenwashing refers to the practice of conveying false or misleading information about the
environmental friendliness of a company’s products. It involves using deceptive advertising
or marketing tactics to convince the public that the company’s products, goals and policies
are environmentally sound. It can be found in advertising, sponsorship and public
messaging in the media, including on social media. Examples of greenwashing can range
from simply changing the name or label of a product to make it seem more natural, even if it
contains harmful chemicals, to launching elaborate and expensive campaigns that portray
highly polluting companies as committed to being eco-friendly  [1] .

The phenomenon of greenwashing or misleading environmental communication emerges
as a significant impediment to achieving decarbonisation goals (a strategic reduction of
human-induced CO2 emissions to combat the severe impacts of climate change) and
undermines consumers’ autonomy and their empowerment as rights holders. Greenwashing
diminishes consumers’ ability to make informed and meaningful choices that advance their
own economic and sustainability goals. Finally, such misinformation not only undermines
efforts to protect the environment, but also undermines the efforts of companies genuinely
committed to sustainability  [2] .

Consumer protection laws can help ensure that businesses are held accountable for
misleading consumers with false or exaggerated environmental claims. Legislative
frameworks play a substantial role in addressing the issue, with the EU increasingly linking
consumer and environmental protection.

In this context, it is also important to ensure effective access to justice in order to enforce
the relevant laws (Article 47 ofthe Charter). As demonstrated by the European Union Agency
for Fundamental Rights (FRA)’s prior research on business and human rights, the presence
of procedural obstacles frequently impedes individuals from asserting their rights against
corporations, thereby rendering their rights ineffectual.

Human rights-based approaches to environmental protection and environmental justice aim
to increase access to justice not only for individual victims but also for communities. This
includes enabling and empowering non-governmental organisations (NGOs) to represent
communities and protect the environment in the public interest. Allowing NGOs to challenge
greenwashing without having to prove individual harm is therefore consistent with
international human rights law and acknowledges the right of communities to actively
participate in shaping policies related to climate change, as they are the ones most
affected.

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FRA activity - Ongoing FRA project: ensuring the right to environmental protection

Launched in 2023, this project seeks to identify the most immediate and significant impacts on
social and fundamental rights of the EU’s green transition and relevant implementing legislation in
light of climate change and the UN 2030 Agenda for Sustainable Development promise to leave no
one behind.
In 2024, FRA will map the key legal and policy provisions of the Green Deal that ensure a just
transition and that link to the European Pillar of Social Rights. It will identify fundamental rights risks
for different groups in vulnerable living conditions and localities. FRA will cooperate and consult
closely with relevant stakeholders, including the European Commission, the European Environment
Agency, the Council of Europe as well as other international organisations and civil society to identify
the most urgent research questions and areas of concern.
Based on the initial research, the project will develop in-depth case studies in selected EU Member
States to assess the implementation of relevant EU regulations, directives and policies
accompanying the Green Deal in national law and policies from a fundamental rights perspective.

Legal and policy background

EU law on consumer and environmental protection

The Charter guarantees a high level of consumer protection and the principle of
environmental protection. Article 38 of the Charter states that ‘Union policies shall ensure a
high level of consumer protection.’ Article 37 of the Charter states that ‘A high level of
environmental protection and the improvement of the quality of the environment must be
integrated into the policies of the Union and ensured in accordance with the principle of
sustainable development.’

Legal corner - Article 37 of the Charter

Article 37 CFR has been the subject of extensive study analysing its legal significance, enforcement
and potential influence on the relationship between environmental protection and fundamental rights
within EU law.
While Article 37 does not establish an individually justiciable right to environmental protection, it
plays a role in influencing the interpretation and application of EU law and the Charter provisions
guaranteeing individual rights. While Article 37 has rarely been invoked by the Court of Justice of the
European Union, some have argued that it could contribute to the integration of environmental rights
and duties, potentially providing the foundation for an emerging fundamental right to a sustainable
environment. In the meantime, the application and interpretation of Article 37 continue to evolve
within the context of EU law and environmental principles.
Sources:
Morgera, E. and Marin-Duran, G., ‘Commentary to Article 37 – environmental protection’, in Peers, S.,
Hervey, T., Kenner, J. and Ward, A. (eds), Commentary on the EU Charter of Fundamental Rights, 2nd
edition, Bloomsbury Publishing, London, 2021.
Scotford, E., ‘Environmental rights and principles: investigating Article  
37 of the EU Charter of Fundamental Rights’, in Bogojevic, S. and Rayfuse, R. (eds), Environmental
Rights in Europe and Beyond, Bloomsbury Publishing, London, 2018.

The Treaty on the Functioning of the European Union (TFEU) includes provisions relating to
consumer protection, such as Article 169, which allows the EU to adopt measures to protect
the health, safety and economic interests of consumers.

The TFEU also enables the EU to adopt measures to protect and improve the environment,
combat climate change, promote sustainable development and protect fundamental rights.
Article 191 outlines the objectives of EU policy on the environment, which include
preserving, protecting and improving the quality of the environment, protecting human
health and promoting measures at the international level to deal with regional or worldwide

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environmental problems.

Furthermore, Article 11 TFEU requires the EU to integrate environmental protection
requirements into its policies and activities and to promote measures at the international
level to deal with regional or worldwide environmental problems.

Also relevant – although it is soft law – is the European Pillar of Social Rights, which
includes principles such as the right to fair working conditions, the right to social protection
and inclusion and the right to consumer protection.

Recent EU developments addressing greenwashing

Misinformation about the environmental impact of products has a potentially significant
impact on human health, environmental protection and consumer rights. It can have an
impact on corporate sustainability by leading to a loss of trust among consumers and
stakeholders, which can ultimately harm a company’s reputation and cause financial losses.
It can also make it difficult for consumers to identify and support sustainable businesses,
which can ultimately harm the environment. Furthermore, it undermines consumers’ ability
to make choices that advance their economic and sustainability goals, and potentially
disempowers them as rights holders.

A total of 94 % of Europeans say that protecting the environment is important to them
personally, and 68 % agree that their consumption habits adversely affect the environment
in Europe and globally (Special Eurobarometer 501).

In the European Green Deal, the Commission made a commitment to ensure that
consumers can make more informed choices and can actively participate in the ecological
transition. In particular, the European Green Deal aims to address false environmental
claims by providing consumers with trustworthy, comparable and verifiable information,
enabling them to make sustainable decisions and thereby reducing the risk of
greenwashing. The priority of addressing greenwashing was further emphasised in both the 
new circular economy action plan and the new consumer agenda. The recently
implemented Green Deal industrial plan emphasises the importance of allowing consumers
to make decisions based on transparent and reliable information about the sustainability,
durability and carbon footprint of products. It also highlights that market transparency is a
tool that promotes the adoption of technologically and environmentally superior net-zero
products.

The coordinated screening of websites for ‘greenwashing’ (‘sweep’) that was carried out by
the Commission and Consumer Protection Cooperation Network authorities in 2020 to
detect misleading environmental claims confirmed the prevalence of vague, exaggerated,
false or deceptive green claims. It confirmed the need to strengthen the rules to facilitate
enforcement in this area. A 2020 Commission study on environmental claims in the EU
assessed 150 environmental claims and found that a sizeable share (53.3 %) provide vague,
misleading or unfounded information on products’ environmental characteristics across the
EU and in a wide range of product groups (both in advertising and on the product).

To address this problem, the EU has proposed various legal initiatives aiming to ensure that
environmental labels and claims are credible and trustworthy, allowing consumers to make
informed purchasing decisions and boosting the competitiveness of businesses that strive
to increase the environmental sustainability of their products and activities.

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Empowering consumers to make informed decisions is a fundamental part of the 
European Green Deal. In 2020, the adoption of the  new consumer agenda to strengthen
consumer resilience for sustainable recovery stressed the need to empower consumers ‘to
make informed choices and play an active role in the green and digital transition’.

In 2022, the Commission put forth a proposal for a directive on empowering
consumers for the green transitionthat aims to bolster consumer rights in order to facilitate
informed choices and actively contribute to the shift towards a climate-neutral society. The
proposal amends the unfair commercial practices directive (UCPD) and the 
consumer rights directive to empower consumers for the green transition through better
protection against unfair commercial practices and better information. The proposal
includes additional specific rules on environmental claims and the prohibition of misleading
advertising. It includes a tool to prevent greenwashing and related unfair commercial
practices, and new regulations on the evidence that businesses must provide to back up
their environmental claims. Along with promoting more sustainable consumption and
enabling consumers to make informed decisions, it also aims to stop unfair business
practices that might have gone unnoticed in the past. The proposal was adopted in
February 2024.

To further combat greenwashing and misleading advertisements, on 22 March 2023 the
Commission adopted a proposal for a directive on substantiation and communication of
explicit environmental claims, known as the green claims directive. It aims to create the first
detailed set of EU rules for substantiating voluntary green claims and regulate the use of
environmental claims in marketing communications in the EU. The directive includes rules
for companies making environmental claims, including an obligation to be supported by
scientific evidence, such as a ‘product environmental footprint’ framework that tracks
environmental impacts across 16 categories, including air pollution and climate change.
The proposed directive would apply to almost all businesses operating in the EU, with the
exception of microenterprises (which have fewer than 10 employees and an annual turnover
of less than EUR 2 million), and would apply to all products and services sold in the EU.

This proposal complements the above 
proposal on empowering consumers for the green transition  by providing more specific
rules on environmental claims, in addition to a general prohibition of misleading advertising.

According to the explanatory memorandum to the green claims directive, the proposal is
designed to act as a safety net for all sectors in which environmental claims or labels are
unregulated at the EU level. While the revised UCPD covers all voluntary business-to-
consumer commercial practices before, during and after a commercial transaction in
relation to a product, the scope of this proposal covers the substantiation and
communication of voluntary environmental claims. In the same way, the abovementioned
proposal on empowering consumers for the green transition deals with sustainability labels
that cover environmental or social aspects or both. This green claims directive would be
limited to environmental labels only.

Both proposals define greenwashing or an ‘environmental claim’ as any message or
representation that is not mandatory under EU law or national law, including text, pictorial,
graphic or symbolic representation, in any form, including labels, brand names, company
names or product names, in the context of a commercial communication, which states or
implies that a product or trader has a positive impact or no impact on the environment or is
less damaging to the environment than other products or traders, respectively, or has
improved their impact over time.

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The consumer protection cooperation regulation lays down a cooperation framework to
allow national authorities in the European Economic Area to jointly address breaches of
consumer rules when the trader and the consumer are established in different countries.
While green statements made by a company could influence consumers across borders,
evidence of the implementation of this cooperation framework did not emerge in this
research.

Finally, the representative actions directive (RAD), adopted in 2020, aims to ensure
protection of consumers’ collective interests. The directive sets minimum requirements
with respect to collective actions on a wide range of topics. It is principle-based, with a fair
margin of discretion regarding implementation left to the Member States. The RAD should
have been transposed by all EU Member States by December 2022, and entered into force in
June 2023. By January 2023, however, the Commission announced that only three Member
States had properly transposed the RAD into their national legislation on time.

EU commitment to international instruments

The EU’s commitment to the sustainable development goals (SDGs)  aligns with its
commitments to sustainability, including to environmental and consumer protection. The
SDGs include SDG 12, which aims to ensure sustainable consumption and production
patterns. The first EU voluntary review on the implementation of the 2030 agenda
confirmed how the Commission’s policy priorities such as the European Green Deal
contribute to the global and domestic transformations required to achieve the SDGs.

The Aarhus Convention (1998) is a treaty adopted under the aegis of the United Nations
Economic Commission for Europe. It covers access to information, public participation in
decision-making and access to justice in environmental matters. It 
links environmental rights and human rights and acknowledges that sustainable
development can be achieved only with 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.

The convention provides that each state 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 (see Section 1.5).

The United Nations Human Rights Council in 2011 unanimously endorsed the 
UN guiding principles on business and human right (UNGPs ). They provide guidance for
states and companies with respect to human rights. The UNGPs rest on three pillars: the
state duty to protect human rights, the corporate responsibility to respect human rights and
access to remedy for victims of business-related abuses. While the UNGPs do not directly
refer to the environment, they imply its protection  owing to the environmental dimensions
of certain human rights, as noted by the United Nations Environment Programme and
OHCHR.

The EU has committed itself to promoting and implementing the UNGPs in various
strategies and pieces of legislation. In 2011, the EU adopted a 
communication on a renewed EU strategy for corporate social responsibility  and has since
taken stock of its efforts to implement the UNGPs such as in the 2019 Commission staff

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working document 
Corporate social responsibility, responsible business conduct, and business and human
rights
 – Overview of progress.

The OECD guidelines for multinational enterprises on responsible business conduct  are
soft law that cover key areas of business responsibility, including consumer and
environmental interests. In 2023, these OECD guidelines were updated to respond to urgent
social, environmental and technological priorities facing societies and businesses. While
they do not have the binding legal force of treaties or laws, they represent a global standard
for responsible business conduct, providing a framework for multinational enterprises to
operate in a socially and environmentally responsible manner, and can help to build trust
and confidence among consumers, investors and other stakeholders.

The environment features prominently in the OECD guidelines, with one chapter dedicated
to enterprises’ environmental performance. The guidelines recommend that multinational
enterprises align with internationally agreed goals on climate change, biodiversity and
pollution, and include due diligence expectations on the environment. The guidelines also
emphasise the importance of sound environmental management as an important part of
sustainable development, seen as both a business responsibility and a business
opportunity.

The National Contact Points (NCPs) receive complaints about alleged breaches of the
guidelines. An NCP does not have judicial or enforcement powers but provides a platform to
mediate between parties involved. Complaints can be brought by anyone who can
demonstrate a credible interest in the subject matter  [3] .

Due diligence and reporting

The EU’s proposal for a directive on corporate sustainability due diligence (CSDDD ) is also
relevant for consumers and environmental information. The directive aims to foster
sustainable and responsible corporate behaviour throughout global value chains by
requiring companies to establish due diligence procedures to address adverse impacts. Due
diligence entails a duty to identify, prevent, terminate, mitigate and account for adverse
human rights and environmental impacts. The directive aims to assist companies in
meeting the growing demand from consumers for ethical and environmentally sustainable
products and help consumers to obtain information about the products they buy and the
companies they support.

In January 2023, the corporate sustainability reporting directive(CSRD) came into effect,
bringing about significant advancements in the regulations governing the disclosure of
social and environmental information by companies. It will replace the 
non-financial reporting directive, which remains in force until companies are required to
apply the new rules of the CSRD. It expands the scope of reporting requirements to a wider
group of large companies. It also aims to ensure that investors and other stakeholders have
access to the necessary information to evaluate the impact of companies on society and
the environment, while also enabling investors to assess financial risks and opportunities
arising from climate change and other sustainability concerns. The initial implementation of
these new regulations will be required for the 2024 financial year.

Methodology

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This research was carried out between July and December 2022 by FRA’s multidisciplinary
research network (Franet) and involved desk research and a limited number of consultations
with experts conducted by Franet in 10 Member States: Austria, Belgium, Bulgaria, Denmark,
France, Germany, Italy, the Netherlands, Poland and Portugal. Franet contractors conducted
four to six consultations per country, in the form of structured phone or online interviews.
The national experts consulted included representatives of environmental and consumer
protection NGOs and governmental bodies, experts in litigation and representatives of
business. Franet contractors aimed to consult at least one expert per category in each
Member State. The Member States covered by the research were selected taking into
account the anticipated presence of pertinent case-law, input from preliminary discussions
with different stakeholders and geographical diversity. Additional consultations with civil
society and relevant EU institutions, including the European Commission and the European
Environment Agency, were undertaken by FRA in 2023.

The results do not purport to provide an exhaustive account of a given situation in a
Member State, but should instead be read as selected insights and case studies that help to
highlight common challenges encountered by consumers when seeking remedies for
misleading environmental claims.

This report presents a broad overview of national legislation and examples of relevant case-
law. It draws on detailed national studies on this topic, which are published on FRA’s
website. As this report is published only online, hyperlinks are used instead of detailed
references in footnotes where possible.

Structure

Chapter 1 outlines findings relating to national implementation by administrative and
judicial bodies of the available legal tools in the context of green claims / greenwashing and
access to information about the environmental impact of products. Chapter 2 analyses the
procedural requirements for collective consumer claims and their relevance for enforcing
consumer rights in environmental contexts. Chapter 3 provides suggestions on ways
forward to improve the protection of environment-related consumer rights.

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1. Consumers’ right to reliable information and

environmental impact

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.

1.1 Combating greenwashing as a misleading commercial

practice

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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.

1.1.1. Applying rules on misleading practices in cases of greenwashing

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] . 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

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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

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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.

1.1.2. Enforcement

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:

ordering the cessation of such practices or initiating legal proceedings to stop them
(an injunction);
prohibiting practices that have not yet occurred.

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,

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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.

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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 (**).
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.

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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.
Sources:
(*) 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

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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] .

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] .

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] .

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).

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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.
Sources:
(*) 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] . They believe that administrative enforcement or
government regulation would be more effective to address greenwashing  [9] .

In Germany, misleading claims about a product, including its environmental impact, are
regulated under the Act against Unfair Competition  [10] . 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.’

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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.
Sources:
(*) 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] , 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] .

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

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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 (***).
Sources:
(*) 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

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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 
rejectedin 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 (****).
Sources:
(*) 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.

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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 sustainabilityclaims 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.

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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-regulationbody. ‘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.

1.2. Carbon-neutral and carbon ‘offsetting’ claims

Definitions

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.

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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.

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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] . 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] .

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]  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.

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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.
Sources:
(*) 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 (***).
Sources:
(*) 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).

1.3. Combating greenwashing through advertising regulations

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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:

cease illicit advertising, even where there is no proof of actual loss or damage or of
intention or negligence on the part of the advertiser;
prohibit illicit advertising that has not yet been published.

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.

1.3.1. Judicial and administrative 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

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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]  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 (**).
Sources:
(*)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 

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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] .

1.3.2. Non-binding self-regulatory codes

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.

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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’ (***).
Sources:
(*) 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 criticisedby 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 (**).
Sources:
(*) 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 

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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] .

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 (***).
Sources:
(*) 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.

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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 Advertisingand 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 CO2neutral’ 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 (***).
Sources:
(*) 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

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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.

1.4. Labels and certification

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.

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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 

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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.

‘Blue Angel’, a voluntary environmental label awarded based on product group-specific
environmental criteria, introduced in 1978 and owned by the Federal Ministry of the
Environment.
‘Green Button’, created by the Federal Ministry for Economic Cooperation and
Development in 2019 for the textile sector, and revised as ‘Green Button 2.0’ in 2022.
The Green Button has set out demanding criteria for existing textile labels and
recognises the labels that meet these criteria. The Green Button is the first registered
certification mark and includes measures to protect human and labour rights as well as
the environment. Consumer organisations believe that this government-accredited
label can enhance trust and transparency regarding sustainability aspects. However,
they also point out that simply adding another label to an already crowded field will not
help consumers in determining which labels can be trusted.
The German Council for Sustainable Development introduced the ‘ Sustainable
Shopping Cart’ in 2003. This platform offers guidance on sustainable consumption and
provides independent information on labels and product marking. The Ministry of
Justice and Consumer Protection supports the platform label-online.de, which includes
a wide range of labels, from regional labels to quality marks.
In 2021, the government updated its platform  siegelklarheit.de (‘label clarity’), funded
by the Federal Ministry for Economic Cooperation and Development and managed by
the German Agency for International Cooperation GmbH. This platform assists
consumers in understanding sustainability labels and provides assessments based on
methodology designed by the government together with experts, civil society and the
private sector. The assessment criteria are decided by the federal government.
Negative results are not published on the Siegelklarheit website, as the labels undergo
the evaluation on a voluntary basis; only the ratings ‘very good choice’ or ‘good choice’
are awarded.
Finally, the Federal Environmental Agency provides a ‘ consumer platform’ that gives
guidance on environmentally conscious consumption.

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

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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] . All sustainability labels should be based on accredited standards that fulfil legal
minimum requirements and are audited by independent third parties  [20] .

However, one of the consumer organisations highlighted the main concerns regarding these
government sustainability initiatives:

reliable sustainability logos such as the Green Button have a very low market share;
the duplication of government efforts and sources of information can overwhelm
consumers and lead to conflicting results.

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

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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.

1.5. Aarhus Convention provisions relevant to consumer
protection

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 state of the environment;
policies or measures affecting the environment;
public health and safety where these are affected by the state of the environment.

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] . The act provides access to environmental information that public authorities

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hold  [22] . Anyone can request such information from public authorities. The entity
requesting information is not required to demonstrate a legal or factual interest  [23] .

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] . 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] . However,
denial of access must not be automatic and the public interest must be considered in every
case  [26] .

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] . 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] .

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]  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

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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] .

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).

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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 (**).
Sources:
(*) 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] , 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.

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The Aarhus Convention was ratified in Italy by Law No 108/2001. An example of the
application  [32]  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]  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 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.

1.6. Due diligence and reporting obligations

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.

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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.

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2. Legal requirements for enforcing collective

consumer and environmental rights

Definitions

Collective action and representative action are two different legal mechanisms that allow consumers
to protect their collective interests. The relevant definitions include the following.
Collective action / class action refers to action taken together by a group of people whose goal is to
enhance their condition and achieve a common objective.
Collective interests can be defined as interests that are common to all members of a particular
group.
Diffuse interests refer to interests that are not individualised and are shared by a large number of
people, such as the environment or public health.
Representative action means an action for the protection of the collective interests of consumers
that is brought by a qualified entity as a claimant party on behalf of consumers to seek an injunctive
measure, a redress measure or both. The RAD was adopted, in 2020, to ensure protection of
collective consumer interest in the EU, by making representative actions effective and regulating the
use of collective actions. Its measures should be applicable in Member States as of June 2023.
Damages is the compensation provided to a person or entity who/that has suffered harm or loss due
to the omission or action of another. Damages try to quantify in financial terms the extent of harm
suffered by a plaintiff due to the actions of the defendant.
Damage refers to actual and/or physical damage to tangible property.
Harm means an adverse impact affecting the life, health, physical integrity or property of a natural or
legal person, or causing significant immaterial disadvantage.

Protecting consumers and protecting the environment can align in several ways, as both
aim to promote sustainable practices and responsible consumption by addressing green
marketing, sustainable consumer protection policies, sustainable consumption, consumer
education and greenwashing. Tackling corporate failures and promoting sustainability
initiatives, in support of consumer and environmental protection, can be pursued through
collective or representative actions, given the collective nature of consumer interests and
owing to the collective interest of most environmental actions.

In the area of private enforcement, the RAD introduced, in all Member States, the possibility
of enforcing the UCPD through representative actions. Such actions could be brought by
qualified entities, seeking injunctive relief or damages on behalf of the affected consumers.

The legal systems of EU Member States regulate legal (material and procedural) conditions
for collective actions mostly in civil law. This chapter analyses and compares how the legal
frameworks of 10 EU Member States regulate the requirements for collective and
representative consumer actions when linked to the protection of environmental rights. In
this, it identifies gaps, barriers and promising practices.

2.1. Collective consumer actions relating to the environment

Definitions

An opt-out mechanism automatically includes individuals in a lawsuit unless they choose to remove
themselves from the class. They must actively opt out by notifying the court that they do not want to
participate.
An opt-in mechanism requires individuals to take proactive steps to join the class or collective
action.
The RAD allows EU Member States to choose whether collective actions operate on an opt-in basis,
an opt-out basis or a combination of both.

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Rules on collective action in national legal systems vary. They can be regulated either in the
general administrative or civil law, which is the case for Austria, Belgium, Bulgaria, Denmark,
Italy and the Netherlands, or in consumer-specific legislation focusing on the environment
which is the case for France. In some Member States, namely Germany, Poland and
Portugal, the possibility of collective action appears ‘fragmentated’ in several legislative
acts.

2.1.1. Enforcement under general consumer law

The ‘Dieselgate’ cases across Europe

The ‘Dieselgate’ scandal, also known as ‘Emissionsgate’, is a significant automotive industry scandal
that primarily involved the Volkswagen (VW) Group and its subsidiaries Audi, Škoda, Seat and other
brands. The VW Group was accused of using deceptive software during emissions testing and
providing false information that buyers relied on when making their car purchases. While the scandal
originated in the United States, it had widespread implications for the entire European automotive
industry, as it raised concerns about both the emission levels of diesel vehicles and the regulatory
oversight of emissions testing. In many European countries, consumer and environmental CSOs took
legal actions based primarily on provisions for misleading commercial practice, resulting in fines,
recalls and individual compensation. Consumer protection laws played a crucial role in holding the
carmakers accountable for misleading advertising, product liability, lack of transparency and lack of
disclosure, and in the enforcement of consumer rights through measures such as class action
lawsuits and strengthened regulatory oversight, as below.
In Belgium, the consumer organisation Test Achats filed a collective action against VW in 2016. The
Court of First Instance of Brussels applied an opt-out approach, requiring consumers to demonstrate
their intention not to receive compensation by July 2018. Owing to the lack of settlement between
the parties, the court proceeded with the litigation, and in July 2023 the court ruled that VW (but not
importers or other brands of the VW Group) must compensate affected buyers located in Belgium,
who should receive either 5 % of the purchase price or 5 % of the difference between the purchase
price and resale price if they come forward within 4 months of the court’s decision.
The case shows that collective actions face lengthy proceedings and financial burdens, which a
representative consumer organisation willing to engage in such cases must be able to bear.
Also in 2016, the Italian NGO Altroconsumo filed a class action against VW. In 2017, the first
instance court held the group responsible for unfair commercial practices and ordered to pay around
200 million euros of compensation to 63 037 consumers. VW appealed. In December 2023, the Court
of Appeal of Venice confirmed that VW manipulated its software and ordered it to pay EUR 300 to all
consumers involved as compensation for moral damages. Altroconsumo appealed to the Supreme
Court to obtain pecuniary damages for affected consumers. Federico Cavallo, Head of External
Relations at Altroconsumo, stated as follows: ‘This is a historic result which adds a very important
piece to the history of class actions in our country: this tool is not yet fully known and used, certainly
perfectible and for this reason evolving in both national and European legislation. A tool, however,
that proves to be one of the most effective and important weapons to protect the rights of individual
consumers who, by coming together, can face the major players in the global market.’
In the Netherlands, the relevant collective action was brought before the District Court of Amsterdam
in July 2021 by the Volkswagen Car Claim Foundation. The VW Group admitted to the deceit but
claimed that environmental friendliness was not a significant factor for car buyers. However, the
court held that buyers would choose a more environmentally friendly car if given the option.
Moreover, VW’s actions contradicted claims about the importance of the environment in its
advertisements. As a result, the court ordered a reduction in the price of the cars and allowed the
Volkswagen Car Claim Foundation to negotiate damages with the defendant, as the law did not allow
the court to award damages at that time.
Prior to this, in October 2017, the Netherlands Authority for Consumers and Markets imposed a fine
of EUR 450 000 on the VW Group for deceiving consumers regarding the sustainability of its
vehicles.
Lawsuits have also been filed in France, Germany and other Member States. In France, the
consumer association CLCV filed lawsuits in 2015. The CLCV also provides an informative toolkit on
their website for consumers who wish to file an individual civil lawsuit. In Germany, lawsuits filed by
the Federation of German Consumer Organisations were settled in 2020. Lawsuits have been filed in
several other Member States. These lawsuits were reported by the European Consumer Organisation
(BEUC) in the Dieselgate 7threportpublished in 2022.

Whether under administrative law, civil law or consumer law, class actions and/or collective
actions are available in Austria, Belgium, Bulgaria, Denmark, Germany, Italy and the

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Netherlands.

Austrian law does not explicitly regulate consumer claims related to the environment. Two
types of action exist:

1.  class actions (Verbandsklagen) for injunctive relief against unlawful clauses or the impairment

of general consumer interests or unfair business practices, which can only be brought by
certain plaintiffs exhaustively listed in the law;

2.  collective actions (Sammelklage österreichischer Prägung), which cede claims to a plaintiff,
who pursues a joint claim for all claimants and their damages in the form of an accumulation
of claims (Klagshäufung).

Class actions (e.g. for injunctive relief against greenwashing business practices) and
collective actions (e.g. bundled claims of consumers harmed by such practices) on
environmental issues are possible under the current legal framework, using the broader
interpretation of the relevant provisions of the Consumer Protection Law.

The Belgian Code of Economic Law (Book XVII, Title 2 introduced in 2014) provides for
consumers who are victims of the same conduct by a company to file a collective action for
damages at the Commercial Court of Brussels. Such action constitutes a civil law claim for
repair of damage suffered by a group of consumers due to a similar cause, for instance a
similar violation of contractual or statutory obligations by an undertaking. The Code of
Economic Law was amended on 30 March 2022 to introduce the concept of ‘damage to the
collective interests of consumers’. This is defined as the actual or potential harm to the
interests of a number of consumers affected by infringements.

Grounds for collective actions are intentionally limited by the legislator, and matters such as
the environment or public health are excluded. Collective damage claims would be possible
on the basis of Book VI (market practices and consumer protection) and Book IX (safety of
products and services) of the Code of Economic Law, regarding advertising and information
on the product or service, but not solely or directly on the grounds of a company’s failure to
comply with environmental legislation.

Since the introduction of the collective action regime in Belgium, as of December 2022, nine
class actions have been initiated, eight of which were brought by Test Achats, the main
Belgian consumer protection organisation. They were focused on particular consumer
protection rights, such as the rights of air passengers and the rights of car buyers in the 
Dieselgate scandal.

The Bulgarian Consumer Protection Act provides for the possibility of bringing both
collective and representative claims beyond the scope of consumer matters. Although
matters related to the environment (including greenwashing) are not explicitly listed as
potential grounds for seeking collective redress, the act’s provisions prohibiting the
implementation of unfair commercial practices could be used for that purpose.

Claims that do not fall within the scope of collective consumer protection can still be filed
under the general collective action rules of the Civil Procedure Code, which allows for two
categories of collective actions: (1) establishing harmful acts or omissions, their
unlawfulness and guilt; and (2) discontinuing violations, remedying consequences and
compensating damages. In practice, the option to file complaints related to the environment
is not commonly used under the Consumer Protection Act, but there have been rare cases
of collective complaints on environmental issues filed under the Civil Procedure Code (see
Box below).

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Examples of collective actions on environmental issues in Bulgaria are mainly related to air
pollution

In 2017, the Supreme Cassation Court of Bulgaria ordered the Municipality of Plovdiv and the
Regional Environmental Protection Agency to improve air quality in Plovdiv. The defendants were
accused of failing to protect the air quality, which resulted in excessive levels of fine particulate
matter. The court ordered them to achieve legally permissible levels within 12 months (*).
Another case was filed in 2017 by the Clean Air Group (a group of citizens and NGOs) against Sofia
Municipality for contributing to air pollution in Sofia. The group claimed that the municipality allowed
excessive fine particulate matter emissions, putting people’s health at risk. The court ordered the
municipality to implement measures to improve air quality, such as using alternative heating
methods, assessing the measures taken in the transport sector and constructing interconnected
bicycle paths (**).
Sources:
(*) Bulgaria, Court of Appeal of Velikovo Tarnovo, Case No 239/16 of 22 February 2017.
(**) Bulgaria, Sofia City Court, Decision No 266455 on Civil Case No 6614/2017,
ECLI:BG:DC:110:2021:20170106614.001, 8 November 2021.

In Denmark, Chapter 23 of the Danish Administration of Justice Act allows for
collective/representative action if several conditions are simultaneously fulfilled. These
conditions are thatmultiple people hold similar claims, the claims can be processed in
Denmark, the court seized has competence to examine the claims a collective action is the
best way to process the claims, members of a collective action claim can be identified and
notified in an appropriate way, and a representative for the collective action claim is
appointed. If the conditions are met, the legal framework allows for consumer
collective/representative action related to environment.

The Danish Administration of Justice Act has an opt-in system for identifying collective
action members. However, if the claims are too small to be pursued individually, the court
can include those who did not opt out of the collective action. There is a specific time limit
for withdrawing from the action, and in certain cases registration can still be allowed after
the deadline. Registering for the action is a simple process that requires only filling out a
form with personal information. The deadline for registration is typically 4–8 weeks after
receiving notification of the case (in case of individual notification to the individual group
members) or 2–3 months in other cases.

Representative action claims related to the environment before Danish courts include cases
against Danish Crown (see Box below) and the Danish dairy company Arla ( see Section 1.2),
both pertaining to environmental greenwashing through the marketing practices of the
involved companies.

Danish Crown

A representative action was filed in 2022 against the company Danish Crown , for potential
greenwashing and misleading marketing of its pork products. The company’s label claimed that its
pork was ‘climate-controlled’ and more environmentally friendly than it actually is. Moreover, the
company used the phrase ‘Our pigs are more climate friendly than you think.’ Greenpeace and
several other environmental organisations complained that the company cannot prove this claim
since the labelling is a set of voluntary targets established by the company and initiated legal action
for violation of the Danish Marketing Practices Act. The case has been 
referred to the Western High Court because of its general public importance. The judgement is
expected in February 2024.

In Germany, the Bundled Enforcement of Consumer Rights Act and the 
Actions for Injunctions Act provide for representative actions (Vebandsklagen) in civil law
matters, particularly regarding:

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injunctive measures against unlawful clauses or the impairment of general consumer
interests or unfair business practices;
redress measures for the benefit of consumers registering their claims with a specific
representative action;
declaratory judgments in favour of such consumers.

Representative actions can be brought only by registered qualified entities that fulfil certain
requirements regarding their size and financing. Representative actions are not limited to
claims relating to the environment but encompass every possible consumer claim
irrespective of its legal foundation.

In addition, Germany’s Code of Civil Procedure allows for complementary collective action
instruments such as consolidated action (Sammelklage or Einziehungsklage) and enables
certain consumer organisations to represent consumers in low-value claims, where no
attorney is required. However, this provision applies only to representation in court, and
consumer claims are usually assigned to consumer protection organisations for collection.
This approach is primarily used for test cases owing to its limited reach and 
resource constraints.

In Italy, the Consumer Code provides for the collective action to protect consumers
exclusively. Courts decide on liability and individual damages together and victims’
compensation is defined on a lump-sum basis. In 2021, Law No 31/2021 introduced organic
regulation of collective civil proceedings, in the Code of Civil Procedure, including
injunctions and class actions from the Consumer Code. It has a wider scope of application
than the RAD but does not regulate cross-border infringements.

In the Netherlands, the Dutch Civil Code previously allowed representative action on behalf
of a group of people with similar interests and in the public interest (including
environmental interest), as long as the legal representative had the authorisation of the
persons concerned. Since 2020, it has been possible for a representative entity to bring a
collective action on an opt-out basis and claim damages under the 
Resolution of Mass Damage in Collective Actions Act. Persons who live abroad can join the
collective action on an opt-in basis. So far, several class actions have been initiated by civil
society organisations (see Box 
The Netherlands: consumer obligation to verify misleading claims  and Box 
The ‘Dieselgate’ cases across Europe and Box Dutch lawsuits against big polluters).

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Dutch lawsuits against big polluters

In April 2019, the environmental group Milieudefensie filed a lawsuit against Shell in the Netherlands,
accusing the company of violating Dutch law and human rights obligations (including Article 8 of the
European Convention on Human Rights) by contributing to climate change. The case involves several
NGOs and over 17 000 citizens seeking a court ruling to reduce CO2 emissions in line with the Paris
Agreement. The case against Shell builds on the Urgenda case (which found that the Dutch
government’s inadequate action on climate change violated a duty of care to its citizens), arguing
that private companies have a duty of care to reduce greenhouse gas emissions, based on the Paris
Agreement’s goals and scientific evidence. In May 2021, the court (*) ordered Shell to reduce
emissions by 45 % across both its own operations and use of the oil it produces. The court
acknowledged that Shell has individual partial responsibility in the global problem for its contribution
to global emissions, which it can control. The court made the decision provisionally enforceable even
during the appeal process. The court allowed the case to proceed as a class action, as it aligned with
the objectives of the environmental groups and NGOs involved. In July 2022, Shell appealed. The
appeal is pending.
In July 2022, ClientEarth, along with Fossielvrij Netherlands and Reclame Fossielvrij, filed a lawsuit
against KLM in the Netherlands, challenging the airline’s misleading marketing that promoted the
sustainability of flying. It also challenged KLM’s carbon-offset marketing, which suggests that
customers can reduce their flight’s impact by supporting reforestation projects or the airline’s costs
of purchasing small quantities of biofuels. It is the 
first-ever legal claim challenging airline industry greenwashing . KLM has denied the allegations and
argued that the group bringing the lawsuit did not represent most KLM customers and did not have
the right to bring a lawsuit. In a significant development, in June 2023, the District Court of
Amsterdam granted permission (**) for the lawsuit to proceed to a full trial (see also the 
Advertising Code Committee decision in Section 1.2).
Sources:
(*) District Court of The Hague, Milieudefensie et al. v Royal Dutch Shell PLC, 
judgment of 26 May 2021, C/09/571932/HA ZA 19-379.
(**) District Court of Amsterdam, Foundation for the promotion of the fossil free movement, 
judgment of 7 June 2023, C/13/719848/HA ZA 22-524.

2.1.2. Environmental claims regulated by specific legislation

In France and Germany, there is specific legislation for collective actions relating to
environmental claims.

In Germany, Article 9(3) of the Aarhus Convention is implemented through the 
Environmental Appeals Act, which allows environmental organisations to bring
representative action if they meet certain criteria set out in this law and have been
recognised as an environmental organisation. However, the scope of the Environmental
Appeals Act is narrower than that of the Aarhus Convention and does not cover product
authorisations.

The connection between representative actions brought under this act and consumer
interests can be indirect or direct, depending on the specific environmental issue. It is often
indirect, such as in the case of the impact of conservation of bodies of water on drinking
water, but may be more direct, for example when related to waste reduction. The 
Federal Nature Conservation Act  and state nature conservation acts also provide for
representative action instruments.

However, the public and political backlash against environmental law enforcement has led
to threats to the non-profit status and tax benefits of environmental organisations.

French legislation provides for two types of collective/representative action relating to the
environment beyond consumer matters:

collective actions by accredited associations for environmental protection, as set out in
the Environmental Code;

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environmental group action, which is distinct from the group action available to
consumer associations.

Environmental group action was introduced in 2016 for the purpose of seeking cessation
and/or compensation for bodily injuries or material damage to the environment. The harms
covered here are broader than in consumer group actions, which are limited to pecuniary
injury caused by products with misleading or incomplete information, and offers remedy in
cases such as harm by a toxic product.

Beyond that, group action in consumer law has been progressively extended to include
accredited associations of health system users, with compensation limited to bodily
injuries. The 2016 Law on Modernisation of Justice of the 21stCentury established a
common legal framework for group actions in judicial and administrative proceedings, and
established a specific procedure in respect of discrimination, in particular related to work,
the environment and personal data. However, the autonomous nature of consumer action
groups remains in place.

The number of cases in France is limited (by the end of 2022 there were 21 group actions
and no entity had been held liable). The restrictive capacity to act, strict requirements and
long delays, particularly due to formal notice requirements, have hindered environmental
group action.

2.1.3. Environmental claims dispersed in different laws

Poland has a more fragmented legislative framework. Collective claims are regulated in the
Collective Claims Act  [35] , but can also be based on various  consumer protection
regulations, tort claims under civil law  [36]  or the separate Environment Protection Act. As
of 2021, none of the collective claims in civil proceedings related to the environment.
However, such claims beyond consumer matters are possible, for example, as tort claims
under Article 415 or 435 of the Civil Code.

The Collective Claims Act defines collective claims as claims of one type brought by at least
10 people, based on the same factual basis. The Act contains an exhaustive list of claims
which can be brought in collective action, such as claims relating to consumer protection,
product liability and tort claims and claims for bodily injury excluding other personal rights
claims. The court determines the admissibility of a class action before the case can be
heard in class proceedings.

Consumer protection cases, including those related to environmental protection, involve
consumer claims against entrepreneurs arising from various consumer protection
regulations in general, the provisions focusing on unfair market practices [37] .

The District Court of Warsaw stated that consumer protection cases are not limited to
claims based on specific consumer laws but cover all consumer cases against business
entities. The court emphasised the importance of meeting conditions for class actions in
consumer claims.

Portuguese legislation allows for collective actions in matters of consumer and
environmental law, to protect ‘diffuse interests’. According to the 
Supreme Court of Justice of Portugal, diffuse interests are characterised by having both an
individual and a supra-individual dimension. They are owned by each and every member of a
class or group (regardless of their will) and pertain to assets that can be enjoyed

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simultaneously, rather than exclusively. There are currently a limited number of registered
cases relating to protection of consumers and the environment.

2.2. Legal standing in collective actions relating to the
environment

Definitions

Legal standing refers to the right or capacity of a party to bring a lawsuit in court. A party seeking a
legal remedy is required to show that they have a sufficient legal interest in the matter at hand. Legal
standing is determined by the legislation of the state where the lawsuit is filed.
Legal representation is the act of representing a party in a legal proceeding.

Legal standing is an essential requirement for ensuring effective enforcement of consumer
and environmental protections, particularly with respect to collective action brought by
organisations. Without legal standing, these entities are unable to advocate for and protect
the rights and interests of consumers and the environment.

The RAD aims to ensure that consumers are able to protect their collective interests in the
EU through representative actions: the legal actions brought by representative entities (so-
called qualified entities). Qualified entities are organisations designated by Member States
to bring representative actions on behalf of consumers.

The RAD distinguishes between claims brought in a Member State where a qualified entity is
designated (a ‘domestic representative action’) and those brought by a qualified entity in a
Member State where it is not domiciled (a ‘cross-border representative action’). The RAD
sets out criteria that qualified entities must meet to bring cross-border representative
actions, including having at least 12 months of actual public activity. On the other hand,
Member States have more discretion in setting criteria for qualified entities in domestic
representative actions. Here, the RAD merely requires that Member States ensure that the
criteria ‘are consistent with the objectives’ of the directive.

Therefore, it seems unlikely that the implementation of the RAD by the Member States
(required by December 2022) would bring more harmonisation of the different conditions
that are currently set in Member States.

The regulation of legal standing in environmental matters in the EU Member States varies.
Some Member States allow civil society organisations and individual legal representatives
to provide representation without imposing specific conditions. This is the case for Austria,
Belgium, Bulgaria and Denmark. Other Member States require specific conditions and/or
registration for civil society organisations to have legal standing which is the case for
France, Germany Italy and the Netherlands. They also maintain a list of accredited civil
society organisations and/or consumer organisations. In Poland, civil society organisations,
including consumer protection organisations, are not allowed to represent groups of
plaintiffs in court under the Environmental Protection Act. However, they can have legal
standing in public interest.

Austrian legislation allows specific consumer protection organisations or NGOs to
represent consumers as plaintiffs in the collective actions.

Both Belgian and Bulgarian legislation provide legal standing in collective actions to any
non-profit consumer organisation that promotes consumer protection. Article XVII.39 of the

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Code of Economic Law of Belgium states that a group of consumers can bring a collective
action only through a group representative (other than a group member). Representatives
can be consumer associations with legal personality and sitting on the 
Special Consumption Advisory Commission, specific associations designated by the
Minister of Economy and Consumers, consumer ombuds institutions (only in the negotiation
phase) or a representative institution recognised by a Member State of the EU or European
Economic Area (EEA). To bring a collective action, the group must find an appropriate
representative (or create a new association) and identify all claimants individually affected
by a common situation. The judge determines whether an opt-in or opt-out system applies.

Under the Bulgarian Consumer Protection Act, consumers may be represented by consumer
protection associations, the Commission for Consumer Protection or a qualified
organisation of an EU Member State in the territory of which the consequences of the
infringement of the collective interest of consumers have occurred. In litigation under the
Civil Procedure Code, the persons affected by the violation can be represented by ‘an
organisation for the protection of injured persons or of the injured collective interest, or for
the protection against such violations’.

Danish legislation allows established and ad hoc organisations to bring a class action on
behalf of consumers in administrative/judicial proceedings. Collective actions require a
group representative, who can be a member of the group, an organisation, a private
institution or association, or a public authority. The Danish Competition and Consumer
Authority will publish a list of approved authorities and organisations for national class
actions, requiring approval from the Minister of Industry, Business and Financial Affairs,
according to the newly proposed draft 
act on access to the initiation of class actions for the protection of the collective interests
of consumers
.

In Portugal, in accordance with Article 14 of the 
Right to Procedural Participation and Popular Action Act , in popular action proceedings the
plaintiff shall represent, on their own initiative, all other holders of the rights or interests at
stake (that have not exercised the right of self-exclusion), without the need for a mandate or
express authorisation. Thus, a citizen or a group of citizens, an association/foundation or
even the public prosecutor’s office can file a claim in the name of other holders of the right
without their express authorisation. There is therefore no need to identify (potential) injured
parties to file a popular action.

In France, Germany and Italy, only CSOs that meet specific criteria outlined in the law can
represent consumers in collective actions.

In Germany, the new Consumer Rights Enforcement Act entered into force in October 2023
which introduced redress action that complements existing options for collective actions
against companies. Consumer protection organisations and consumer associations are
entitled to bring collective actions for consumer protection related to environmental matters
if they meet requirements for a ‘qualified institution’:

they have at least 30 member associations or 750 natural persons as members;
they have performed their statutory duties as a registered association for at least
1 year;
they do not receive more than 5  % of their funding from corporate sources.

French legislation regulates legal standing in consumer claims related to the environment in

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the Consumer Code and in the Environmental Code. The Consumer Code allows only CSOs
fulfilling specific criteria set by law to represent consumers. To be eligible for national
accreditation, the organisation has to have carried out, for at least 1 year, effective and
public action relating to the protection of consumer interests and have a minimum number
of members (at least 10 000). Therefore, individual lawyers also do not have standing to
bring a consumers’ collective action, only accredited consumer organisations.

Different criteria are provided for other types of class actions. Class actions under
environmental law are open to environmental associations accredited through a decree
(with a statutory aim entailing defence of victims of injuries or members’ economic
interests) or in accordance with Article L141-1 of the Environmental Code. Ad hoc or human
rights-focused associations would probably lack legal standing. These actions directly
concern accredited consumer associations if legal standing has been explicitly recognised
in other matters, such as ma environmental or personal data matters.

France: court decision on the legal standing of NGOs

In the greenwashing case against TotalEnergies, filed in March 2022 by Greenpeace France, Friends
of the Earth France and Notre Affaire à Tous, supported by ClientEarth, a pre-trial judge decided in
May 2023 to allow the legal action, confirming legal interest of French associations in the case
(l’intérêt à agir). However, the court did not allow ClientEarth, which is not a France-based NGO, to be
a formal intervener in the case.
Source: France, Greenpeace France, ‘Greenwashing de TotalEn 
ergies: première victoire procédurale des ONG’, 17 March 2022.

A similar approach is taken in Italy and the Netherlands, which allow consumer rights to be
represented by organisations that are registered and fulfil certain conditions.

In Italy, Law No 31/2019 amending the Code of Civil Procedure expanded the subjects
entitled to make use of the class action. Accordingly, non-profit organisations and
associations with statutory objectives for protecting homogeneous rights, and also each
member of the group, may bring action against the wrongdoer to seek (1) determination of
liability and (2) a court order for compensation and restoration. However, only organisations
and the associations fulfilling statutory requirements  and registered in a public list
established at the Ministry of Justice can bring the action. To meet the requirements, an
organisation must:

have been officially established and have been actively operating for at least 3 years,
with a democratic structure and a sole statutory purpose of protecting consumers
without making a profit;
keep an updated list of members and their fees;
have a certain number of members based on the national population and presence in
multiple regions or provinces;
provide financial statements and maintain proper bookkeeping;
have legal representatives with no convictions in relations to the association’s
activities and who do not own or manage any companies in the same sector.

The list of eligible organizations is constantly updated on the 
Ministry of Economic Development website. The acting entity will represent a group of
consumers who have chosen to participate in a class action (opt in).

The legal framework in the Netherlands provides extensive requirements for consumer
protection organisations seeking to bring collective action. In the case of CSOs, they must

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be a non-profit organisation  [38] . The representative organisation must be a foundation or
an association with full legal powers and they must protect similar interests of other
persons, insofar as they represent these interests pursuant to their articles of association
and provided that these interests are sufficiently safeguarded  [39] .

The relevant provisions in the Netherlands outline the 
requirements for consumer protection organisations, which must meet certain criteria
required by law. The representative body of the consumer protection organisation must
have the necessary experience and expertise to initiate legal proceedings and must 
account for its activities annually. Foreign organisations or public bodies may represent the
interests of persons who regularly reside in the country where these organisations or public
bodies are established.

In Poland, according to the Environmental Protection Act, if the threat or infringement
concerns the environment as a common good, the action may be brought by the State
Treasury, a local authority or an environmental organisation. Collective claims can be
brought by a group representative who is either a member of a group or a district consumer
ombudsman. Additionally, the claimant must be represented by a professional lawyer.
Currently, an environmental organisation or other NGO cannot represent or bring a class
action on behalf of the group (claimants). This should change following the implementation
of the RAD.

2.3. Requirement of harm and possibility of actio popularis

Definitions

Actio popularis is a legal concept that originated in Roman law and refers to the right of an individual
or a CSO to take legal action in defence of a public interest, even when they are not directly affected
or victimised by the issue at hand. The plaintiff therefore acts in the public interest and represents
the common good on its own behalf, without a specific complainant to support or represent, where
the discrimination case affects a larger, (partially) unidentifiable group of persons.
It can be said that actio popularis is a type of collective redress.
The OSCE report Use of actio popularis in Cases of Discrimination defines it as a ‘mechanism for the
protection of a particular group of people against systematic violations of rights which represents a
public interest in a society that is defined as democratic’.
The use of actio popularis varies across European legal systems (see also 
Equality bodies working on cases without an identifiable victim: Actio popularis).

In several jurisdictions, it is possible for individuals to seek damages in the event of a
breach of a law that is considered essential to safeguard fundamental rights. In order for a
legal action for damages to be pursued in court, three conditions must be met: a breach of a
legal obligation, the occurrence of harm, and the establishment of a causal link between the
breach and the harm. From the perspective of environmental protection, these requirements
present two main challenges: (1) the identification of a victim (who sustained harm) and (2)
the diffuse, collective, cross-border and generalised nature of the interest of environmental
protection. This section analyses the effectiveness of national safeguards of the general
interest of consumers in the event of environmental damages (i.e. existence of actio
popularis).

Italy allows for claims to be submitted in the general interest, with judicial action for
compensation for environmental damage brought by the Minister of Ecological Transition
(under the Environmental Code). An ‘extended’ class action mechanism was introduced by a
recent reform of the Civil Procedure Code.

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The Resolution of Mass Damage in Collective Actions Act was adopted in the Netherlands
in 2020 and applies to collective actions for damages relating to ‘events’ that occurred 
on or after 15 November 2016. It does not distinguish between different types of actions.
According to the 
explanatory memorandum to the Resolution of Mass Damage in Collective Actions Act , a
collective action can be brought on behalf of anyone and can be based on any type of legal
infringement that affects a class. Mass damages claims should be closely 
connected to the Dutch jurisdiction , although cross-border cases are still covered, if the
defendant has its headquarters  in the Netherlands or most of the consumers are Dutch.

In Poland, a civil judicial claim can be brought by environmental organisations (social
organisations whose statutory objective is the protection of the environment) only in case of
a breach of Article 80 of the Environmental Protection Act, and they can request only
injunctive relief, not damages. Consequently, organisations do not have to prove damage or
show legal interest in the proceedings – this mechanism serves as an actio popularis. As
confirmed by case-law  [40] , the producer, advertising agency and entity issuing the
advertisement can be sued in this case.

The Portuguese legal system allows an actio popularis (ação popular) through a
mechanism of collective action, when collective or diffuse interests are at stake, to respond
to infringements on consumer rights and/or environmental rights. The Portuguese
Constitution (Article 52(3)) recognises the right to popular action (ação popular) as a
judicial mean available to citizens (individually considered or through associations), to be
exercised before any court, for the defence of diffuse interests, without the necessity of
invoking a personal and direct interest or demonstrating any connection with the material
factuality in dispute. The conditions for filing a popular action are set out in other laws, such
as the Right to Procedural Participation and Popular Action Act . Additionally, the right to
popular action in environmental matters is established in Article 7 of the 
Bases of Environmental Policy Law.

Consumer rights and environmental rights are considered ‘diffuse interests’, being included
in the categories of ‘environment’ and ‘consumption of goods and services’ as regulated by
the Right to Procedural Participation and Popular Action Act .

In the case against Banco Comercial Português, the Supreme Court of Justice of Portugal
ruled on the admissibility of the class action and protection of diffuse interests, related to
bank guarantees. The ruling, as far as it regards the protection of collective interests and
homogenous individual interests, is also applicable to consumer protection and
environmental claims in general.

The important outcome of the judgment is that the popular legitimacy must be measured
by:

the power of the plaintiff to represent the holders of the diffuse interest;
the interest in suing – the advantage that the plaintiff derives from the merits of the
action.

2.4. Burden of proof in collective consumer and environmental

claims

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Definitions

The burden of proof refers to the requirement that the plaintiff shows the ‘weight of evidence’ that all
the facts necessary to win a judgment are presented and are probably true. In some cases, the
burden of proof may shift to the defendant if they raise a factual issue in defence during the
proceeding.
The concept of burden of proof is an essential aspect of legal proceedings, typically requiring one
party to adequately substantiate their claim. Usually, it is the party initiating the claim that bears the
responsibility of demonstrating its validity and carries the burden of proof. The general rule for civil
proceedings within the EU (and its Member States) is that a claimant must prove their case.
However, in certain circumstances, such as cases involving discrimination or product liability, this
burden of proof can be shifted. In EU consumer law, the shift of burden of proof is an important
aspect of consumer protection.

Legal regulation of burden of proof in consumer and environment related cases in the
analysed countries varies. National laws either provide specific provisions on burden of
proof in environmental law or administrative law or refer to general principles of consumer
law in civil, administrative or environmental law. Some Member States regulate the burden
of proof in various, complementary laws. (See Table 1).

Pursuant to Article 8(4) of the Civil Code in Belgium, the burden of proof lies with the
plaintiff unless otherwise stated by the law. This is applicable in the situation guaranteed by
the Code of Economic Law, when the application is given by the JEP, whose guidelines
differ from those provided by the Belgian courts. The JEP requires that the advertiser
demonstrates the accuracy and truthfulness of its claims, whereas in courts the burden of
proof rests with the plaintiff unless otherwise stated by the law.

In Bulgaria, according to the Contract and Obligations Act , there are no rules envisaging a
reversed burden of proof in environment-related cases.

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Table 1 – Laws regulating the burden of proof in consumer and environment related cases, by
Member State

Regulation of
burden of proof in
civil law /
consumer law

Regulation of burden of
proof in environmental
law / administrative law

Varied legal
regulations
regulating the
burden of proof

Shift of
burden
of
proof

Member
State

Austria

Belgium

Bulgaria

Denmark

France

Germany

Italy

Netherlands

Poland

Portugal

Source: FRA, 2023.

√

√

√

√

√

√

√

√

√

√

√

√

√

√

√

Specific provisions in the administrative law or environmental law relating to the burden of
proof and the claimant’s obligation to prove the fault of the defendant exist in Denmark,
Italy, the Netherlands and Poland.

Chapter 3 of the Danish Administration of Justice Act places the burden of proof on the
claimant filing a collective action claim to show how persons falling under the collective
action claim in question can be identified. In some cases, it is sufficient for the claimants to
attach a list of names and addresses of the members of the group. Otherwise, the claimant
can inform the group members in a specified local area through an advertisement in the
newspaper within a time limit set for notification by the court.

Article 840-bis of the Code of Civil Procedure in Italy allows non-profit organisations and
associations whose statutory objectives include the protection of the homogeneous rights
or each member of the class to safeguard individual homogeneous rights through class
action. It also refers to the requirement of providing evidence to justify the claim in order to
require the payment of damages.

In the Netherlands, the Resolution of Mass Damage in Collective Actions Act provides for
the possibility to claim damages, including environmental damages. It is possible for a
representative entity to bring a ‘collective action’ on an ‘opt-out basis’  [41] , which means
that individuals who do not want to be represented have to declare that they do not want to
be involved in the proceedings. The claimant always bears the burden of proof,
notwithstanding the type of action, and the mass damage must be connected to Dutch
jurisdiction.

In Poland, in proceedings before civil courts, the burden of proof that a specific market
practice does not constitute an unfair practice lies with the company using the practice.

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Claims for damages may be limited to a request to establish the liability, followed by
separate individual monetary claims by each of the claimants.

In case of tort claims under general rule of Article 415 of the Civil Code, in which claimants’
damage is connected to the environmental degradation, claimants must prove that the
damage is a normal consequence of the act or the omission in question  [42] , and that it is
the defendant’s fault. This claim can be brought against any natural or legal person,
including one exercising public authority  [43] . Under Article 435 of the Civil Code, operators
of enterprises or plants powered by natural forces are liable for any damage unless it was
caused by the injured party or an unavoidable event.

Article 323(1) of the Environmental Protection Act allows individuals to file a tort claim for
environmental damage caused by unlawful impacts. These claims are solely of a reparative
and preventive nature (a person seeking pecuniary damages must resort to the general
rules of the Civil Code). The burden of proof lies with the claimant. However, in an effort to
rectify the inequalities in access to essential information, the law stipulates that individuals
seeking compensation for environmental harm may request the court to compel the
responsible party to disclose all pertinent details essential for assessing the extent of their
liability.

More specific legal regulation regarding the burden of proof exists in Germany and Portugal.

In Germany, consumer claims are regulated in civil and administrative law. Civil law
regulation on consolidated action enables certain consumer organisations to represent
consumers’ interests and puts the burden of proof on the claimant.

In Portugal, the Consumer Protection Law mandates proof in consumer claims related to
the environment. However, because the Portuguese Constitution guarantees actio popularis
for diffuse interests, there is no burden of proof for the claim and no need to invoke a
personal and direct interest or demonstrate any causality in the dispute. 
The Right to Procedural Participation and Popular Action Act  and 
Bases of Environmental Policy Law also support popular action relating to environmental
rights and establish relevant conditions, including with respect to burden of proof.

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3. Ways forward

Addressing greenwashing aligns with both the Charter’s guarantee of consumer protection
(Article 38) and its provision on environmental protection (Article 37). The empowerment of
consumers as rights holders can help advance environmental sustainability and climate-
related policy goals.

One way to improve environmental protection is to strengthen consumer rights, for example
by facilitating the enforcement of regulations for unfair commercial practices, especially at
the EU level. This would hold businesses accountable for their environmental claims and
actions and prevent consumers from being misled by false or exaggerated statements, with
potentially negative impacts on their fundamental rights.

There have been ongoing important developments in this area. In light of the gaps and
obstacles identified in this report at both the national and the EU levels, relevant legal and
policy measures should be implemented without delay to provide adequate protection.

Green claims such as ‘CO2-reduced’ or ‘climate-friendly’ should be based on scientific
criteria informing the development and use of relevant certifications. The prevention of
misleading green claims should be prioritised, because once such claims are made it takes
time for legal action to take effect and for misleading claims to be prohibited. During this
time, the statement may continue to influence consumers’ perceptions. This approach will
also enable companies to steer clear of unnecessary legal disputes. To prevent the misuse
of sustainability claims as a marketing tactic, an accreditation system should be
established at the national and EU levels.

The use of carbon neutrality claims and the compensation measures for emissions (carbon
offsetting) should be banned or limited in line with the Commission’s proposal to prohibit
carbon or climate neutrality claims if these are not supported by clear, objective and
verifiable commitments by the trader. They should also be supported by a monitoring
system. Companies should be required to demonstrate that they are making investments to
reduce their emissions.

An explicit prohibition of unsubstantiated ‘carbon-neutral’ claims as inherently misleading
would facilitate proving infringements of consumer rights involving environmental
protection.

3.1. Ensuring effective enforcement of rights

Administrative and judicial decisions against greenwashing should systematically include
sanctions in addition to ordering cessations of misleading green claims. Sanctions must be
effective and dissuasive, and for that purpose they must not only deprive the trader of any
benefit derived from using the misleading green claim in question, but also be proportionate
to the size and turnover of the company. With respect to access to evidence, denying
access to information for strategic or industrial reasons should not be allowed in matters
relating to corporate social responsibility. In addition, access to information could be
improved by restricting the exceptions pertaining to industrial confidentiality only to
instances where it is deemed necessary, and creating a process for interim relief if access
to environmental information is refused.

The rules on burden of proof should alleviate excessive hardships for consumers while

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ensuring that false environmental claims cannot be made easily.

FRA activity - FRA opinion 1 in Business and Human Rights – Access to remedy (2020)

Drawing on existing EU law in regard to shifting the burden of proof, the EU should encourage
Member States to consider shifting the burden of proof in cases where the fundamental rights of
individuals are infringed by corporate activity. This should apply to causality between the company’s
conduct and damage, as well as to proving liability for the supply chain. The burden of proof should
be shifted once it has been established prima facie that a business has breached a statutory duty.
Those found to have violated a legal norm should be required to prove that ensuing damages are not
the result of this violation. The same should apply to companies who fail to apply due diligence to
their supply chain.
The EU should facilitate the development of clear minimum standards on disclosing information by
companies. To ensure the application of the jurisprudential principle of equality of arms, companies
should have an obligation, in any dispute against them, to disclose all their documents that relate to
the incident, in order to ensure that anyone affected can access information that is necessary to
establish a claim.
Source: FRA, Business and Human Rights – Access to remedy
, Publications Office of the European Union, Luxembourg, 2020.

3.2. Enhancing cohesion of the supervisory system

Greater cohesion and standardisation in the supervisory system at both the national and the
EU levels would be beneficial for upholding consumer rights.

Rules regarding administrative enforcement of consumer rights should not afford excessive
discretion to administrative bodies regarding examination of a complaint, or the possibility
to appeal a decision, which could result in depriving consumers of effective access to a
remedy.

Moreover, to make the enforcement of consumer protection laws more effective, the
competent authorities need to be adequately resourced, and collaboration with civil society
and government administration needs to be promoted.

The EU should consider improving consistency and complementarity between its various
relevant legislative initiatives such as the corporate sustainability reporting directive (CSRD),
the proposal for a corporate sustainability due diligence directive (CSDDD ) and various
reporting obligations.

Some experts also suggest that the creation of an independent environmental authority and 
courts specialised in environmental matters could help uphold such cohesion and ensure
that the requisite expertise could be relied on.

The French Senate’s report recommends strengthening the powers of the Directorate-
General for Competition Policy, Consumer Affairs and Fraud Control and promoting synergy
between various agencies and administrations. The Court of Auditors recommends
strengthening the governance of the consumer movement and better collaboration between
accredited associations and administrations.

The 
Dutch Minister’s letter to parliament on building blocks of corporate social responsibility
legislation
recommends establishing an EU supervisory body to make it easier for consumers to report
harmful business behaviour, in particular regarding cross-border corporations. In the
context of greenwashing, this would also benefit the environment.

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3.3. Representative action and procedural rights of civil society

organisations

Strengthening the legal capacity of consumer and environmental organisations to hold
governments and business to account can improve the protection of consumer rights and
environmental interests. Moreover, it would be important to expand the eligibility of
organisations to take legal action, including actions in the general interest (actio popularis),
and broaden the scope of consumer group actions. Such organisations should also be able
to intervene in judicial proceedings in support of consumers (e.g. as amici curiae) in
individual lawsuits.

While the primary legal responsibility remains with relevant state authorities as duty bearers
under EU human rights law, improving the management of litigation risk and supporting civil
society to address the growing number of environmental claims by businesses is essential
in light of the proliferation of environmental claims by businesses and limited resources of
NGOs to exercise their watchdog role in this respect.

FRA activity - FRA opinions 2 and 3 in Business and Human Rights – Access to remedy
(2020)

FRA opinion 2
The EU and Member States should provide for effective collective redress and representative action
beyond consumer protection to other cases of business-related human rights abuse.
[...]
The EU and Member States should ensure that legislation providing for representative action on
behalf of persons affected by the actions of a business allows for legal standing of civil society
organisations acting in the public interest, as well as statutory human rights organisations, such as
national human rights institutions, Ombuds institutions or equality bodies.
FRA opinion 3
The EU and its Member States are encouraged to ensure adequate funding and legal protection for
civil society organisation (CSOs) to enable them to effectively fulfil their role in supporting victims of
business-related abuses and monitoring business compliance with human rights standards.
Member States should ensure that the criteria for obtaining qualified status by CSOs in order to be
eligible for legal standing or obtain financial help from the state are clearly defined and not
excessive.
Source: FRA, Business and Human Rights – Access to remedy
, Publications Office of the European Union, Luxembourg, 2020.

3.4. Training and awareness-raising

The public authorities' lack of awareness of the significance of greenwashing in the context
of environmental protection and of applicable legislation is often a greater obstacle than
substantive or procedural gaps in the regulatory or enforcement system. It is important to
provide training for administrative authorities, judges and lawyers on environmental aspects
of consumer laws, and in particular regarding interpretation of misleading practices in the
context of greenwashing.

Governments should fulfil their obligation to promote human rights and be proactive in
educating consumers about their rights regarding misleading environmental advertising in
order to empower them to take action. This includes campaigns to raise awareness of
greenwashing and providing information on how to report it. Complaints and decisions of
administrative bodies and courts should be published on the websites of relevant
institutions and in professional journals, and also on company websites.

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Without prejudice to the obligations of the Member States in this regard, and subject to the
availability of adequate resources, national human rights institutions can play a significant
role not only by engaging more actively in the development of relevant legal and policy
measures, but also by developing their expertise on both consumer rights and the impact of
climate change and the green transition  [44] .

3.5. Guidance for business

Businesses need guidance and support to comply with national and international legal
norms. It is important to provide guidance for businesses to comply with environmental
obligations and encourage sustainable behaviour in line with the increase in reporting
requirements.

With the increasing number of reporting requirements at both the national and the EU levels,
coherence, complementarity and easily understandable guidance are essential to ensure
that companies focus on avoiding or reducing negative impacts rather than only reporting
them. It is important to include small and medium-sized companies in these efforts, and fair
commercial practices must be considered from a competition law perspective.

3.6. Incorporating sustainability into consumer protection policy

Consumer protection laws are still often seen as effective only when a product presents a
physical danger to the consumer. Legislation, however, should also consider any negative
impact of a product on the environment, which also affects consumers. The relevant
legislation should consider that environmental protection is a fundamental rights issue and
connected to the broader protection of consumer rights.

Sustainability criteria, including environmental impact through the whole life cycle of a
product, should be defined and explicitly included in warranty law. Warranty periods should
be extended for durable products and the burden of proof should be on manufacturers, who
should also be held accountable for ensuring durable product designs. Moreover, penalties
for planned obsolescence should be strengthened. Planned obsolescence is defined as a
practice in which products are intentionally designed to fail after a certain age or amount of
use, which can lead to increased waste and overconsumption.

To incentivise a circular economy, which involves sharing, leasing, reusing, repairing,
refurbishing and recycling products, the Commission presented the circular economy action
plan in March 2020 as one of the main building blocks of the European Green Deal, Europe’s
new agenda for sustainable growth. The circular economy action plan aims to promote
more sustainable product design, reduce waste and empower consumers. The
Commission’s proposals on ecodesign and the consumer empowerment directive are
crucial for promoting ecological change in the EU.

Transparent sustainability labelling is essential to help consumers make informed choices.
Labelling should be regulated by independent authorities to ensure the reliability,
trustworthiness and comprehensiveness of the information provided. Quality labels should
employ consistent criteria and be independently monitored, for example through a pre-
approval system, such as the one proposed by the European Consumer Organisation, for
green claims and labels, which would both help prevent greenwashing and promote those
businesses with better environmental and substantiality performance.

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3.7 Due diligence and reporting

A human rights-based approach to environmental protection and corporate climate
accountability is rooted in the concept of human rights due diligence defined in the UNGPs
and reflected in the proposal for a corporate sustainability due diligence directive (CSDDD ).

In this context, laws pertaining to due diligence, such as the proposed CSDDD, could play an
important role in protecting the rights of consumers and increasing the proportion of
sustainable production in the economy.

According to the UNGPs, the due diligence process should include assessing actual and
potential human rights impacts, integrating and acting on the findings, tracking responses
and communicating how impacts are addressed. It is imperative to ensure that due
diligence regulations are comprehensible and practical: a balance must be struck between
robust and effective regulation and minimal administrative encumbrance.

Based on FRA’s work in the area of business and human rights and the views of experts
consulted for this report, the following aspects should be considered in the implementation
phase of the proposed CSDDD:

coverage of all companies operating in the EU internal market;
binding regulations for corporate responsibility along supply chains at the national, EU
and international levels;
provisions ensuring effective access to justice;
the obligation to comply with all internationally recognised human and labour rights
and climate and environmental standards, as established by relevant international
institutions, such as the Council of Europe, the UN, the EU (including the European
Environment Agency) and the International Labour Organization;
establishment of civil liability (and effective remedies) for companies for due diligence
violations;
establishment of independent monitoring institutions and effective sanctions and
penalties for violations;
public accessibility of relevant companies’ reports.

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Endnotes

[1] For a literature review aiming to identify the main concepts and typologies of greenwashing, see Freitas
Netto, S. V., Sobral, M. F. F., Ribeiro, A. R. B. and da Luz Soares, G. R., ‘Concepts and forms of greenwashing:
a systematic review’, Environmental Sciences Europe, Vol. 32, No 19, 2020. 

[2] See, for example, Bernini, F. and La Rosa, F., ‘Research in the greenwashing field: concepts, theories, and
potential impacts on economic and social value’, Journal of Management and Governance, 2023. 

[3] For examples and assessment of the efficiency of NCPs, see FRA,  Business and Human Rights – Access
to remedy, Publications Office of the European Union, Luxembourg, 2020. 

[4] See the press release ‘Council and Parliament reach provisional agreement to empower consumers for the
green transition’, 19 September 2023. 

[5] Interview with the European Consumer Centre Belgium, 16 September 2022. 

[6] Interview with the Belgian Consumer Ombud Service, 14 September 2022. 

[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. 

[8] Interview with the Belgian Consumer Ombuds Service, 14 September 2022; interview with the European
Consumer Centre Belgium, 16 September 2022. 

[9] Interview with the Belgian Consumer Ombuds Service, 14 September 2022; interview with the European
Consumer Centre Belgium, 16 September 2022. 

[10] Germany, Gesetz gegen den unlauteren Wettbewerb. 

[11] Interview with a business organisation on 1 November 2022. 

[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. 

[13] Higher Regional Court of Koblenz, judgment of 10 August 2011 (9 U 163/11), BeckRS, 2011, 23895. 

[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. 

[15] Steuer, ‘ “Klimaneutrale” Produkte im Lauterkeitsrecht’ [‘ “Climate neutral” products and the law of unfair
commercial practices’], GRUR, 2022, 1408, p. 1417. 

[16]  Poland, Appellate Court of Warsaw (Sąd Apelacyjny w Warszawie), VI ACa 621/09, 8 December 2009; VI
ACa 666/09, 10 January 2010. 

[17]  France, Environnemental Code, Articles L229-61 to L229-67. 

[18] Interview with Belgian Consumer Mediation Service, 14 September 2022. 

[19] Interview with consumer organisation on 4 October 2022; interview with environmental organisation on
6 October 2022. 

[20] Written information provided by consumer organisation on 15 October 2022. 

[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. 

[22]  Article 8 of the EIA act. 

[23]  Article 13 of the EIA act. 

[24]  Article 16 of the EIA act. 

[25]  Article 16(1)(7) of the EIA act. 

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[26]  Poland, Provincial Administrative Court of Warsaw (Wojewódzki Sąd Administracyjny w Warszawie) IV
SA/Wa 2854/17, 19 March 2018. 

[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. 

[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. 

[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). 

[https://www.uvcw.be/focus/environnement/art-23092]

[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. 

[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. 

[32] Input received by academics from the Italian National Research Council and also from activists of the
Italian Clean Clothes Campaign. 

[33] See, for example, Case no ROT 21/18, 2022, Case no 202006761/1/A3 and Case no 202004537/1/A3. 

[34] The Netherlands, Administrative Jurisdiction Division of the Council of State (Afdeling
Bestuursrechtspraak Raad van State), Case no 202101970/1/A3, 18 May 2022. 

[35] Poland, Competition and Consumer Protection Act of 16 February 2007, consolidated text, Journal of
Laws 2021.275 (Ustawa z dnia 16 lutego 2007 r. o ochronie konkurencji i konsumentów, t.j. Dz. U. z 2021 r.
poz. 275). 

[36] Poland, Collective Claims Act of 17 December 2009, consolidated text, Journal of Laws 2020.446
(Ustawa z dnia 17 grudnia 2009 r. o dochodzeniu roszczeń w postępowaniu grupowym t.j. Dz. U. z 2020 r.
poz. 446). 

[37] Poland, Act on Counteracting Unfair Market Practices of 23 August 2007, consolidated text, Journal of
Laws 2017.2020 (Ustawa z dnia 23 sierpnia 2007 r. o przeciwdziałaniu nieuczciwym praktykom rynkowym t.j.
Dz. U. z 2017 r. poz. 2070). 

[38] The Netherlands, Civil Code (Burgerlijk Wetboek), Article 3:305a, paragraph 3a. 

[39] The Netherlands, Civil Code (Burgerlijk Wetboek), Article 3:305a, paragraph 1. 

[40] 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. 

[41] The Netherlands, Civil Code (Burgerlijk Wetboek), Article 3:305a; the Netherlands, Code on Civil
Procedure (Wetboek van Strafvordering), Article 1018f. 

[42] Poland, Article 361(1) of the Civil Code. 

[43] Poland, Article 417 of the Civil Code. 

[44] See also FRA, Strong and Effective National Human Rights Institutions – challenges, promising practices
and opportunities, Publications Office of the European Union, Luxembourg, 2020. 

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About this publication

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Luxembourg: Publications Office of the European Union, 2024

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