EmpCO: Introduction of § 15b UWG – Last-Minute Correction with Question Marks

On 24 September 2026 – a mere three days before the application date of the Empowering Consumers Directive (Directive (EU) 2024/825, “EmpCo”) on 27 September 2026 – the Committee on Legal Affairs and Consumer Protection (Ausschuss für Recht und Verbraucherschutz) of the German Bundestag adopted the introduction of a new § 15b of the Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, “UWG”). The provision addresses the treatment of existing products that were placed on the market before the cut-off date and do not comply with the new greenwashing and environmental advertising rules under the UWG.

What is already noteworthy is the legislative-technical placement of the provision: § 15b UWG is not being introduced through an independent legislative procedure but is instead appended by way of an amendment motion (Änderungsantrag) of the coalition parliamentary groups CDU/CSU and SPD to the Act on the Modernisation of Design Law (Gesetz zur Modernisierung des Designrechts, BT-Drs. 21/6215). The substantive connection to design law is nil – this is a legislative piggyback manoeuvre that is unprecedented in its short notice.

Content of § 15b UWG-E

The new provision bears the title “Special Provisions on the Third Act Amending the Act against Unfair Competition” (Sondervorschriften zum Dritten Gesetz zur Änderung des Gesetzes gegen den unlauteren Wettbewerb) and provides that the assertion of injunctive relief claims under § 8(1) UWG for violations of the new EmpCo provisions – in particular § 5(2) No. 1 UWG (ecological and social characteristics), § 5b(3a) UWG, as well as the new items of the Annex (Nos. 2a, 4a, 4b, 4c, 10a, and 23d) – with respect to goods placed on the market before 27 September 2026 shall be exercised in good faith (nach Treu und Glauben) taking into account the principle of proportionality (Grundsatz der Verhältnismäßigkeit).

The following balancing criteria are specified:

1. the severity of the legal violation,
2. the efforts undertaken by the business to remedy the legal violation,
3. the costs associated with remediation, and
4. the environmental burden associated with remediation.

The provision has a sunset clause: pursuant to Article 6 in conjunction with Article 7(3) of the draft law, § 15b UWG will automatically expire on 27 September 2028.

Criticism

1. Timing: Three Days Do Not Constitute a Legislative Procedure

The vote on § 15b UWG on 24 September 2026, only three days before the entry into force of the EmpCo rules, is legislatively highly problematic. Directive (EU) 2024/825 was adopted on 28 February 2024 and published in the Official Journal on 6 March 2024. The transposition deadline ran until 27 March 2026, and the application deadline until 27 September 2026. The German legislator thus had more than two and a half years to develop a transitional solution for existing inventory. Instead, the regulation came literally at the last minute.

2. Practicability: No Safe Harbour, but Case-by-Case Judicial Assessment

§ 15b UWG-E is expressly not a blanket sell-off period. A violation of the new greenwashing rules remains a legal violation even for existing stock – the provision merely modifies the enforceability of the injunctive relief claim at the level of proportionality. The result is a graduated legal consequence: ranging from additional disclosure obligations, through a court-granted sell-off period, to the complete exclusion of the injunctive relief claim.

In practice, this means: where exactly a specific case falls on this spectrum will have to be determined by the courts. For companies that are currently implementing what is perhaps the most significant overhaul of their environmental communications in recent decades, § 15b UWG-E offers, at best, an argument but not a shield. The open-ended wording “in good faith, taking into account the principle of proportionality” (nach Treu und Glauben unter Berücksichtigung des Grundsatzes der Verhältnismäßigkeit) is unlikely to prevent a wave of cease-and-desist letters (Abmahnwelle) but will, at most, shift the litigation to the level of legal consequences.

There is also a documentation risk: the legislative explanatory memorandum (Gesetzesbegründung) presupposes that companies are able to demonstrate their “efforts to remedy the legal violation.” Any company that is not already comprehensively documenting – cut-off date inventory, order dates, packaging changeovers, corrective measures – will hardly be able to successfully invoke § 15b UWG.

Finally, it should be noted that the provision expressly does not privilege online advertising and websites – these must be fully adapted to the new requirements by 27 September 2026. The purported facilitation applies only to physical existing stock.

3. Relationship to the CPC Common Understanding

In June 2026, the consumer protection authorities of the CPC Network (Consumer Protection Cooperation) agreed on a Common Understanding on “old stock situations.” This represents a coordinated, EU-wide enforcement framework that requires the authorities to adopt a proportionate, case-by-case enforcement approach in genuine old stock scenarios.

The fundamental principles of the Common Understanding are largely congruent with the balancing criteria of § 15b UWG-E: good-faith compliance, consideration of packaging cycles, inventory volumes, production orders, shelf life, and avoidance of disproportionate measures such as destruction or recall.

However, whereas the Common Understanding is addressed directly to the competent authorities, § 15b UWG-E governs the civil law enforcement of injunctive relief claims – precisely the area where, in Germany, the bulk of enforcement is carried out by competitors and trade associations, not by public authorities.

EU Law Risk

It should not go unmentioned that the Unfair Commercial Practices Directive (UGP-Richtlinie, Directive 2005/29/EC), which is amended by the EmpCo Directive, is, in the view of the European Commission, in principle a fully harmonising directive. National deviations – whether stricter or more lenient rules – are in principle not permissible.

The legislative explanatory memorandum relies on the Commission’s Q&A paper of September 2026 as justification; however, the Q&A paper is expressly only a non-binding interpretive aid of the Commission services. Whether § 15b UWG-E would withstand scrutiny under EU law is, at the very least, uncertain.

Conclusion

§ 15b UWG-E is a symptomatic example of reactive legislation under time pressure: well-intentioned, but difficult to apply in practice. The provision offers no clear sell-off deadlines, no reliable safe harbours. Companies should not rely on § 15b UWG-E to protect them from cease-and-desist letters (Abmahnungen) or injunctions (einstweilige Verfügungen). The recommendation remains: achieve full EmpCo compliance as quickly as possible and document the transition process comprehensively – § 15b UWG-E is an argument in litigation, but not a carte blanche.