Prohibition of advertising using the terms "environmentally friendly" and "climate-friendly": Legality of an injunction under fair trading law at the request of an authority from an EU Member State

BGH, decision of 20.2.2025 - I ZB 26/24

In a ruling dated February 20, 2025 (I ZB 26/24), the Federal Court of Justice upheld the Federal Environment Agency's prohibition of advertising for long-distance bus travel using the terms "environmentally friendly" and "climate-friendly". What is remarkable about the decision is that it concerns the advertising of a German company in another EU country. 

Facts of the case

A long-distance bus company based in Germany had advertised its long-distance bus trips on its Belgian website with the terms "milieuvriendelijk" (environmentally friendly) and "klimaatvriendelijk" (climate-friendly) and the long-distance bus as the "most environmentally friendly means of transport". In addition, a CO2compensation payment was offered during the booking process without specifying the underlying emission value.

The Belgian Directorate-General for Economic Inspection ADEI considered this to be misleading to consumers and therefore a violation of Belgian regulations that implement Art. 6 I b and Art. 7 I, IV a of the UPG Directive (Directive 2005/29/EC). In application of the CPC Regulation (EU No. 2017/2394), ADEI applied to the competent Federal Environment Agency due to the company's registered office in Germany. The latter prohibited the long-distance bus company from using the terms "environmentally friendly" and "climate-friendly" and from advertising the long-distance bus as the "most environmentally friendly means of transport" and ordered it to state the missing emissions value on its website. The company lodged an appeal against this with the competent regional court, which was rejected. The BGH now had to decide on this rejection

Decision of the BGH

The BGH considered the appeal to be unfounded and confirmed the legality of the injunction. The key aspects of the decision are as follows:

• The powers of the requested authority (in this case the Federal Environment Agency) are derived directly from the provisions of the CPC Regulation. An additional national authorization basis is not required.
• Moreover, the legality of the prohibition order of the requested authority does not presuppose that the requesting authority (here ADEI) has issued a "basic ruling" that complies with Belgian law.
• The court of appeal is bound by the findings of the court of appeal regarding the existence and content of the substantive foreign law. These findings can only be challenged with the assertion that the foreign law was insufficiently or incorrectly determined (standard of § 293 ZPO).
• The more complex or foreign the foreign law is, the more demanding the German court's duty to investigate the foreign law becomes. In cases such as the present one, in which a provision of foreign law corresponds to a provision of domestic law due to harmonization under EU law, it is not uncommon for the same meaning to be attached to the legal principle as to the corresponding domestic provision.
• With regard to misleading information, it is sufficient for the court of fact to establish the perception of the average German consumer and that the perception of the average consumer in the other Member State does not differ significantly from this perception.

Classification of the decision and practical advice

The decision shows the potential of the CPC Regulation. In Germany, in contrast to some parts of Europe, infringements of consumer protection are traditionally punished by competitors or associations and not by authorities. However, the CPC Regulation offers the possibility of official intervention. The special feature here is that infringements by a German company in another EU country against consumer protection standards applicable there can be prosecuted by a German authority and prohibited by a German court.

From this point of view, too, it is increasingly important for companies to carefully check their advertising claims throughout the EU. The EU has set itself the goal of effectively combating greenwashing. The EmpCo Directive (2024/825/EU), which has already come into force, and the planned Green Claims Directive place strict requirements on the use of environmental claims. Violations of the EmpCo Directive, which must be implemented in all EU member states, can in turn be punished across borders under the CPC Regulation. Such a possibility is also provided for with regard to the Green Claims Directive.