Will it still be permissible to label products with the EMICODE® in the future?
In collaboration with external experts, the GEV has thoroughly examined the requirements of the EmpCo Directive and the planned revision of the Act against Unfair Competition (UWG). Based on the current legal situation, the EMICODE® rules and regulations have been revised and further developed. The goal was to further improve the objectivity and reliability of the environmental claims associated with the EMICODE® seal.
In the GEV’s assessment, the updated system of the EMICODE® seal complies with the current requirements of both the UWG and the EmpCo Directive, provided that the respective product has obtained a valid EMICODE® license based on the updated EMICODE® regulations. The GEV will closely monitor further developments in legislation and case law and will continue to adapt the system as needed.
Information sheet on the EMICODE® and EU EmpCo Directive
The EU Empowering Consumers Directive
Implementation aspects of the EU EmpCo Directive
Sustainability aspects play an important role in companies’ communication with consumers. Purchasing decisions that consumers make based on the information provided by companies help ensure that sustainable products establish themselves in the market. However, informed purchase decisions can only be made if the companies’ environmental claims about products and their sustainability labels are reliable.
Accordingly, the goal of Directive (EU) 2024/825, the so-called “EmpCo Directive” (Empowering Consumers Directive), is to protect consumers from unfair practices and to promote sustainable consumption patterns through better information.
The Directive has been transposed into national law through an amendment to the UWG. The European Commission has meanwhile compiled a list of FAQs on the EmpCo Directive, which is also known as ECGT Directive (Directive on Empowering Consumers for the Green Transition). These FAQs contain comprehensive guidance on the application of the new rules.
The new rules must be applied in Germany starting September 27, 2026. As of that date, the relevant information must be provided in a clear and comprehensible manner in accordance with the new rules. Commercial practices that are considered to be misleading are prohibited.
Commercial practices targeting or reaching consumers are deemed unfair if they are not in compliance with the requirements of professional diligence and are likely to significantly influence the economic behavior of consumers (section 3(2) UWG).
Pursuant to section 3(3) of the Unfair Competition Act, certain practices listed in the Annex to section 3(3) of the amended version of the UWG (the so-called “blacklist”) are generally prohibited. It is therefore not necessary to prove that the practice in question has a negative effect.
With the transposition of the EmpCo Directive into national law, these restrictions are being extended.
The blacklist includes commercial practices that are always illegal and prohibited in dealings with consumers. They are explained below. The prohibitions do not apply if the products in question do not reach consumers, i.e., if the products are not intended for consumers and cannot reach them.
It should be noted, however, that misleading commercial practices directed at other market participants are also unfair. In particular, claims regarding environmental characteristics or circularity aspects such as durability, reparability or recyclability may also be regarded as misleading.
Before making an environmental claim or using a sustainability label in dealings with consumers, it is therefore the entrepreneur’s responsibility to ensure that the environmental claim is verifiably correct or that the sustainability label used, resp. the certification scheme underlying the label, meet the minimum requirements for transparency and credibility.
Whether and to what extent an entrepreneur may rely on information provided by third parties or by the holder of a label is likely to be determined on a case-by-case basis and dependent on the specific circumstances. However, the entrepreneur is not obliged to verify in detail whether the (certification) scheme owner actually complies with each and every legal requirement.
- Display of sustainability labels
- Making generic environmental claims
- Claims on environmental impacts based on offsetting greenhouse gas emissions
- Claims regarding future environmental performance, including time-bound targets.
In brief:
Environmental claims must always be true. They must not be misleading and must be
- explained in clear and prominent terms on the same medium,
- based on a recognized excellent environmental performance, or
- supported by a sustainability label.
Unless recognized by a public authority, sustainability labels may only be displayed if they are based on a certification scheme.
Claims regarding environmental impacts based on offsetting greenhouse gas emissions are now permitted only in exceptional cases.
Claims regarding future environmental performance may only be made on the basis of a detailed and realistic implementation plan that includes measurable and time-bound targets as well as clear, objective, publicly available and verifiable commitments.
In addition, it should also be noted that the advertising of “benefits” to consumers is considered to be misleading if these benefits are irrelevant because the characteristics apply to virtually all comparable products.
The entrepreneur must ensure that the legal requirements are complied with in each case.
- any message or representation made in the context of a commercial communi-cation such as advertising or sales,
- including representations made through text, images, graphic elements or symbols such as labels, brand names, company names or product names,
- which is not mandatory under Union or national law and
- which states or implies
- that a product, product category, brand or trader has a positive or zero impact on the environment or is less damaging to the environment than other products, product categories, brands or traders, or
- that a product, product category, brand or trader has improved its impact on the environment over time.
Example: Corporate sustainability reporting or disclosures required under the Corporate Sustainability Reporting Directive (CSRD) typically do not fall within the scope of the ECGT Directive, as these reports are often mandatory and (solely) addressed to investors rather than consumers.
- any environmental claim made in written or oral form, including through audio-visual media,
- that is not included on a sustainability label and
- where the specification of the environmental claim is not provided in clear and prominent terms on the same medium.
Examples of generic environmental claims include “environmentally friendly, green, good for the environment, sustainable, eco-friendly, resource-efficient, energy-efficient, …”.
As a rule, these are short, catchy statements that, taken on their own, have no factual content that can be verified using objective criteria, and from which it is not immediately clear
- which environmental aspect is involved,
- to which stage of a product’s lifecycle they refer, or
- how the claimed effect is to be achieved in concrete terms.
Brands, company names or company logos may also contain environmental terms.
Generic environmental claims made to consumers that cannot be substantiated are prohibited under all circumstances2. In practice, the types of evidence permitted by law are limited.
Generic environmental claims are prohibited if
- the trader is not able to demonstrate any recognized excellent environmental performance which is relevant to the claim, or
- the trader makes a false statement regarding the scope of an environmental claim. This is the case when an environmental claim is made about the entire product or the trader’s entire business, although the claim actually concerns only a certain aspect of the product or a specific activity of the trader’s business, or
- claims regarding environmental impacts are made based on the offsetting of greenhouse gas emissions, suggesting that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions.
Please note: Generic environmental claims displayed on a sustainability label are generally permissible if they are linked to a specific ecological characteristic. However, drawing the line can be difficult in individual cases, so legal advice should be sought in case of doubt.
2 The same generally applies to misleading environmental claims (Sections 5, 5a UWG).
A recognized excellent environmental performance is consistent with
- Regulation (EC) No. 66/2010, which sets out requirements for the EU Ecolabel, or with
- national or regional environmental labeling schemes in accordance with DIN EN ISO 14024 type I, June 2018 edition, which are officially recognized in the Member States of the European Union, or
- the requirement that the product achieves top environmental performance under other applicable Union law (e.g. in accordance with Directive 2018/2001, Renewable Energy Directive).
Specific environmental claims such as “100 % of the energy used to produce this packaging comes from so-called renewable sources”, are permissible – provided they are not misleading and are (demonstrably) true.
Sustainability label means
- any voluntary trust mark, quality mark or equivalent, either public or private
- that aims to set apart and promote a product, process or business activity to consumers by reference to its environmental or social characteristics or both (these may also include images or symbols),
- excluding any mandatory labeling required under Union law or the law of a Member State of the European Union.
In principle, the label must highlight specific “environmental or social characteristics,” which distinguishes it from a generic environmental claim. The claim may also refer to business activities.
Sustainability labels may only be used if they meet certain requirements.
They must either
- be established by public authorities (e.g. official EU Ecolabel) or
- be based on a certification scheme.
A “certification scheme” is
- a third-party verification system
- that certifies that a product, process or business complies with certain requirements,
- that allows for the use of a corresponding sustainability label and
- the terms of which, including its requirements, are publicly available and
- meet the following criteria:
- The scheme is open under transparent, fair and non-discriminatory terms to all traders willing and able to comply with the scheme’s requirements.
- The scheme’s requirements are developed by the scheme owner in consul-tation with relevant experts and stakeholders.
- The scheme establishes procedures for dealing with non-compliance with the scheme’s requirements. It provides for the withdrawal or suspension of the trader’s use of the sustainability label in case of non-compliance with the scheme’s requirements.
- Monitoring of a trader’s compliance with the scheme’s requirements is subject to an objective procedure and is carried out by a third party whose competence and independence from both the scheme owner and the trader are based on international, Union or national standards and procedures (“three-party relationship”).
It is recommended to obtain confirmation from the holder of a sustainability label that the underlying certification scheme meets all legal requirements effective as of September 27.
in the production process, or it may be understood as merely offsetting these emissions. The claims are therefore often misleading and have also been deemed misleading by courts in the past. Henceforth, claims such as “climate-neutral, certified CO2-neutral, carbon-positive, climate-friendly, reduced carbon footprint” etc. are generally prohibited.
Consequently, product advertising is prohibited if it makes a claim based on the offsetting of greenhouse gas emissions and suggests that a product has a neutral, reduced or positive impact on the environment with regard to greenhouse gas emissions.
Other claims are only permitted if they
- are based on an actual lifecycle impact (improvement) of the product in question and
- do not refer to the offsetting of greenhouse gas emissions outside the product’s value chain and
- are described in clear and prominent terms on the medium used so that, in principle, a specific environmental claim is made.
An assessment “over the entire lifecycle” means taking into account not only production but also use and disposal of the product. The positive effect (e.g. “stores more CO2 than the product emits over its lifecycle”) must be verifiable through proper lifecycle analyses.
Exceptions are offset claims that are based on an EU legal act and, to that extent, demonstrate a “recognized excellent environmental performance”.
Previous case law should be taken into account (German Federal Court of Justice “Katjes-Urteil” – judgment of June 27, 2024, I ZR 98/23).
Claims regarding future environmental performance are announcements that a specific environmental goal (e.g. “climate neutrality”) will be achieved by a certain date.
The prerequisites for such a claim are that
- it consists of clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan that
- includes measurable and time-bound targets as well as other relevant elements necessary to support its implementation, such as the allocation of resources, and
- that it is regularly reviewed by an independent external expert, whose findings are made available to consumers.
Although the expert does not need to be certified or accredited, he or she must be competent in the relevant field (environmental audit) and free from any conflicts of interest. The frequency of such regular reviews should be 1 to 2 times per year. The results can also be made available to consumers via a QR code.
In summary, the announcement must be clear, unambiguous and verifiable, which requires a detailed and realistic implementation plan with measurable and time-bound targets, information on the allocation of resources, and regular audits carried out by an independent and competent expert, the results of which must be made available to consumers.
Revised version of a legal act
In this judgment of 24 June 2024, the German Federal Court of Justice (BGH) laid down the conditions under which companies may advertise using the term “climate-neutral”.
The term “black list” refers to the minimum transparency requirements.
Art. 1 No. 6 of the UWG-ÄndG stipulates, among other things, that the requirements of a certification system are publicly available and that the system is open to all businesses under transparent, fair and non-discriminatory conditions. The basic principles for evaluating products must therefore be easily accessible and must not be concealed, thereby evading scrutiny or verification. To this end, key documents, decision-making bodies and processes must be made transparent through the publication of bylaws and criteria. Establishing contact channels and responding to factual questions can also be considered part of transparent communication.
EU Directive 2022/2464 requires companies above a defined threshold for balance sheet total, net turnover or number of employees to report on their policies, risks and key performance indicators related to environmental, social and employee matters, respect for human rights, and anti-corruption measures. The goal is to evaluate companies’ sustainability-related business activities.
This standard describes principles and procedures for environmental labeling. It outlines programs with requirements for products that can be used as certification procedures. A “recognized excellent environmental performance” is deemed to exist pursuant to Art. 1 No. 1 of the UWG-ÄndG regarding § 2 (2b) No. 2, as amended, if the environmental performance is in accordance with DIN EN ISO 14024 type I (June 2018 edition), which is officially recognized in the member states of the European Union.
A directive is a legal act adopted by the institutions of the European Union. It is addressed to the EU Member States and, as stipulated in Article 288 of the Treaty on the Functioning of the European Union (TFEU), is binding as to the result to be achieved. In contrast, a regulation does not require an act of transposition into national law and is therefore directly applicable.
Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources.
Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources.
The EmpCo Directive is also known as the ECGT Directive (Directive on Empowering Consumers for the Green Transition).
An environmental audit is a systematic, documented evaluation of an organization’s operations, facilities and procedures to check compliance with environmental laws, assess environmental performance, and reduce ecological risks. It is carried out by an independent third party with the necessary resources and expertise.
The EU awards an ecolabel to products that have a reduced environmental impact throughout their lifecycle. The general requirements for fulfilling the criteria are set forth in EU Regulation No. 66/2010.
Directive (EU) 2024/825 of the European Parliament and of the Council of 28 February 2024, amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and through better information.
These are individuals or organizations that are or may be affected by the activities of a company or association. In addition to experts, stakeholders must be involved in the development of system requirements under a certification system pursuant to Art. 1 No. 6 b) of the UWG-ÄndG. The form of their involvement is not specified.
Pursuant to § 2 (2c) of the UWG (as amended), a “recognized excellent environmental performance” may constitute a “top environmental performance” under other European law. It is not described what exactly falls under this definition.
The Act Against Unfair Competition of 3 April 2004 was amended on 12 February 2026 by the “Third Act Amending the Act Against Unfair Competition” (UWG-ÄndG).
“n.F.” (German “neue Fassung”) stands for English “new version” or “as amended”.
Disclaimer:
There is no case law yet regarding the new provisions of the UWG (Act Against Unfair Competition). The information provided in this Information Sheet therefore only reflects the opinion of the author or the association. It is intended for guidance purposes only and cannot replace legal advice in individual cases.
