Statements on future environmental performance under the EmpCo Directive

Directive (EU) 2024/825 on empowering consumers for the green transition—better known as the "Empowering Consumers Directive" or "EmpCo Directive" – brings far-reaching changes for environmental advertising. The German federal government has initiated the transposition of the Directive into national law with the draft of a third law amending the Unfair Competition Act (UWG). The new regulations must be applied as of September 27, 2026. An additional transition period – including for products already on the market – is not currently planned. 

As part of our HEUKING series on the changes introduced by the EmpCo Directive, Part 1 addressed general environmental claims and Part 2 addressed future requirements for sustainability labels. This article now focuses on the regulations regarding claims about future environmental performance.

I. Subject Matter and Background of the Regulation

Environmental claims, particularly climate-related claims, increasingly refer to future performance in the form of a transition to CO2 or climate neutrality or a similar goal by a specific date. Through such claims, businesses create the impression that consumers contribute to a low-carbon economy by purchasing their products. Typical examples include statements such as “We will be climate-neutral by 2030” or “Our company aims to be net-zero by 2035.” Since these promises can have a significant influence on consumers’ purchasing decisions, European lawmakers see a particular need for regulation.

To this end, the EmpCo Directive inserts a new subparagraph (d) into Article 6(2) of the Unfair Commercial Practices Directive (UCP Directive). Accordingly, making an environmental claim regarding future environmental performance without meeting certain conditions is prohibited as a misleading commercial practice following a case-by-case assessment. 

II. The Requirements in Detail

Under the new rules, a statement regarding future environmental performance is permissible only if it is supported by clear, objective, publicly available, and verifiable commitments set out in a detailed and realistic implementation plan. Specifically, the following conditions must be cumulatively met:

1. Clear, objective, and verifiable commitments and targets

The commitments and targets underlying the environmental claim must be clearly formulated, objectively verifiable, and publicly accessible. Vague declarations of intent without concrete content do not meet these requirements. The commitments must include measurable and time-bound targets. This means that both the targeted reduction goals and the timeframes within which these goals are to be achieved must be specifically stated.

2. Detailed and realistic implementation plan

The commitments and targets must be included in a detailed and realistic implementation plan that sets out how the targets are to be achieved. The implementation plan must also include other relevant elements necessary to support its implementation, such as, in particular, the allocation of resources. According to the recitals of the EmpCo Directive, the implementation plan should, in accordance with Union law, include, where applicable, all relevant aspects necessary for fulfilling the obligations, such as financial resources and technological developments. 

Consequently, the measures and milestones outlined must be genuinely suitable and feasible – mere declarations of intent without substantial backing are insufficient. In practice, this means that when making statements about future environmental performance, companies must present a robust and transparent plan that clearly indicates the specific means by which the set goals are to be achieved.

The EmpCo Directive does not require that the implementation plan be presented on the same medium as the environmental statement itself. In the opinion of the European Commission, it is sufficient if the statement directs consumers to where the information can be accessed – for example, via a QR code that links to the implementation plan on the company’s website. 

3. Regular review by an independent external expert

The implementation plan and progress toward achieving the targets must be regularly reviewed by an independent external expert. According to the recitals of the EmpCo Directive, this expert must be independent of the business operator and must not be subject to conflicts of interest. Additionally, they must possess experience and expertise in environmental matters. 

In its Q&A on the Directive, the European Commission has clarified that the Directive does not specify whether the expert must be a public body or a private entity. In practice, therefore, private auditors or consulting firms may also assume this role. The key requirement is that the expert be capable of assessing the business operator’s progress regarding obligations and targets in a credible, objective, and regular manner. The Directive does not prescribe a specific audit methodology. 

Regarding the frequency of reviews, the Directive merely uses the term “regularly” without specifying a concrete time interval. In the Commission’s view, best practices suggest annual or biennial reviews, although additional reviews may be warranted if significant changes occur. 

4. Publication of Results

The results of the regular reviews conducted by the external expert must be made available to consumers. However, the Directive does not prescribe any specific means of making the information accessible. Various options are therefore available, as long as consumers can easily access the information – for example, via a QR code on the product packaging or marketing materials that links to the results on the company’s website. 

III. Case-by-Case Assessment Instead of a Per Se Ban

Unlike, for example, general environmental claims, which are per se prohibited under certain conditions and appear on the so-called “blacklist,” claims regarding future environmental performance are not subject to an absolute ban. Rather, they must be assessed on a case-by-case basis, whereby it must ultimately be demonstrated that the contested practice causes or is likely to cause the average consumer to make a business decision that they would not otherwise have made. 

In practice, this means that the absence of one of the above-mentioned elements – such as a robust implementation plan or an independent review—does not automatically render the practice inadmissible, but constitutes strong evidence of a misleading commercial practice that may be prohibited in the specific case.

IV. Interaction with Other Provisions of the EmpCo Directive

Claims regarding future environmental performance may also conflict with other provisions of the EmpCo Directive in specific cases. For example, statements based on the offsetting of greenhouse gas emissions and claiming that a product has a neutral, reduced, or positive impact on the environment with regard to greenhouse gas emissions are always inadmissible at the product level. This prohibition is on the blacklist and therefore applies – unlike statements regarding future environmental performance – without a case-by-case review. 

The European Commission has clarified in its Q&A that company-level claims regarding the transition to climate or carbon neutrality, as claims about future environmental performance, are subject to the relevant requirements. At the same time, the Commission emphasizes that this ban does not prevent companies from promoting their investments in environmental initiatives, provided the information is not misleading and meets the requirements of EU law. 

V. What are the consequences of violations?

Violations of the provisions of the EmpCo Directive or the version of the UWG effective as of September 27, 2026, will primarily be pursued by consumer and competition associations as well as eligible competitors. In practice, this may result in costly cease-and-desist letters and, if an out-of-court settlement is not reached, preliminary injunctions and injunctive relief. Potential claims for damages and the risk of reputational damage are also conceivable. 

VI. Recommendations for Action and Outlook

The effective date of the UWG amendment on September 27, 2026, is drawing nearer. Companies that advertise with statements about future environmental performance or intend to do so should promptly review their communications to ensure they meet the requirements for statements regarding future environmental performance. 

To this end, all existing future-oriented environmental claims – whether on product packaging, in advertising campaigns, on company websites, or on social media – should be identified and documented. Each individual claim must then be reviewed to determine whether a detailed and realistic implementation plan with measurable and time-bound targets exists and whether a corresponding allocation of resources has been outlined. If such a plan does not yet exist, it must be created. Furthermore, steps should be taken early on to engage an independent external expert to regularly review the implementation plan. Finally, it must be ensured that the results of these reviews are made available to consumers in an easily accessible format. 

Since no transition period is provided for products already on the market, existing products must also comply with the new requirements as of the effective date. It is to be expected that, once the new legal provisions take effect, consumer protection and competition associations in particular will strictly monitor compliance with the new regulations and consistently pursue violations. 

We would be happy to assist you in implementing the new UWG rules in a timely manner.

In upcoming posts, we will take a closer look at other aspects of the EmpCo guidelines, particularly the implications of the ban on CO2 offset claims and the consequences for brands and corporate logos.