The European Commission (the Commission) is expected to table a recently leaked proposal for a Directive of the European Parliament and of the Council on green claims (the Directive) that will require European Union (EU) member states to impose “dissuasive” penalties on organizations that make false environmental claims. The objectives of the Directive are to (i) set out detailed EU rules on the substantiation of voluntary green claims; (ii) enable consumers to act on reliable information about the sustainability of products and traders; and (iii) provide for members states to set up a system of penalties. This bulletin briefly summarizes the leaked Directive.
General provisions (Chapter I):
- Sets out the scope of the Directive and provides that it will apply to environmental claims made on products available on the EU market and environmental claims on traders that provide activities on the EU market; and
- Clarifies that the Directive only applies to voluntary environmental claims and does not amend any other EU legislation that already establishes requirements in terms of information provided to consumers and does not apply to sustainability information involving messages or representations that may be either mandatory or voluntary pursuant to the EU or national rules for financial services, such as banking, credit, insurance and re-insurance, occupational or personal pensions, securities, investment funds, payment and investment advice.
Substantiation and communication of environmental claims (Chapter II):
- Establishes harmonised requirements for the substantiation and communication of all types of environmental claims, including labels.
- Establishes the detailed requirements which methodologies, used by traders to collect evidence to substantiate the environmental claim, must be compliant with, and incentivises the use of the Environmental Footprint methods;
- Establishes the detailed requirements to be complied with by traders when communicating a claim that is substantiated according to the Directive;
- Requires that environmental labelling schemes must comply with certain requirements with regards to their governance and transparency; and
- Requires regular review of and updates to environmental claim.
Supporting measures (Chapter III):
- Introduces detailed rules on the establishment of new Product Environmental Footprint Category Rules (PEFCRs) and Organisation Environmental Footprint Sector Rules (OEFSRs), pursuant to the Environmental Footprint methods, by the Commission with involvement of the Technical Secretariat; and
- Provides that the Commission will adopt delegated acts to formalise the draft PEFCRs/OEFSRs.
Enforcement (Chapter IV):
- Introduces the obligation for the Member States to set up a system of verification for the substantiation of environmental claims by the independent verifiers;
- Establishes harmonised requirements to be complied with by the verifiers;
- Requires Member States to designate competent authorities and defines their new powers;
- Establishes the procedure to be followed to monitor environmental claims and how to deal with infringements;
- Provides for complaint handling and allows interested parties to submit complaints regarding environmental claims;
- Establishes the necessary powers of the courts and administrative authorities; and
- Requires Member States to set up a system of penalties.
Final provisions (Chapter V):
- Sets out the framework empowering the Commission to adopt delegated acts;
- Sets out the framework for the committee procedure needed for the adoption by the Commission of implementing acts;
- Provides the rules to be followed for the monitoring of the EU market and the evaluation and review of the Directive; and
- Establishes Member States’ obligation to transpose the Directive and the date of entry into force.
The Commission noted that the Directive is one of the actions proposed for implementing the European Green Deal and that it will contribute to the EU’s green transition towards a circular, climate-neutral and clean economy by enabling consumers to take informed purchasing decisions. In addition, the Directive is meant to help create a level-playing field for market operators making green claims.
For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.
