A Lot of Confusion Surrounding New Greenwashing Rules

1. October 2026

A Lot of Confusion Surrounding New Greenwashing Rules

EU Directive. Strict rules now apply to “green” advertising claims, including those printed on packaging. But when will it be possible to take legal action over this? There is a great deal of uncertainty, and the European Commission is sending new signals.

By Christine Kary

Vienna. Is an EU directive—of all things—that aims to combat greenwashing forcing companies to destroy perfectly good goods? And in doing so, to engage in a practice that would be not only uneconomical but also harmful to the environment? This has been a topic of discussion for some time, and in the last few days, the debate has also heated up in Austria.

This concerns the Empowering Consumers Directive (EmpCo); the related national regulations took effect on September 27. According to the directive, environmental advertising claims are now only permitted if they can be precisely substantiated, which includes, for example, statements printed on the packaging of the respective product. According to the directive, this is to take effect immediately. As previously reported, however, the Austrian regulation deviates from the EU requirements on this point: it provides for a three-year transition period. Greenpeace has therefore already initiated infringement proceedings with the European Commission, and there is a great deal of uncertainty.

New Provisions in the UWG

What exactly is this controversial provision about, and what should affected companies expect? And what role might the fact that Germany also included a transitional provision in its implementing law—essentially at the last minute—play? Die Presse discussed these issues with Martina Stranzinger-Maier, a partner at PHH Rechtsanwälte, as well as Freshfields experts Matthias Hofer and Tobias Timmann. Timmann is a partner at the international law firm’s Düsseldorf office, and Hofer is an attorney in Vienna.

To begin with the content of the regulation: The UWG provides that competitors and associations may take action against unfair business practices through injunctive relief and preliminary injunctions; claims for damages by affected consumers are also possible. With the implementation of the EmpCo, this now also applies to greenwashing. However, according to the transitional provision, civil claims for violations of these rules may only be asserted during the first three years after the regulation takes effect “provided that the goods in question are placed on the market after September 27, 2026.”

Sticker application is time-consuming

In other words: A grace period should apply to goods that are already on the market as of the effective date. The rationale for this—that it is intended to prevent the destruction of goods—is understandable, says Hofer. Stranzinger-Maier takes a similar view: “Destroying massive quantities of products would be even worse,” she says. But is the Austrian solution compatible with EU law? That is the subject of “heated debate,” says Hofer.

The Commission has pointed to “stickering” as a solution—that is, covering up labels that are not permitted under the new rules. Ritter Sport, for example, has demonstrated this in a way that has certainly attracted public attention. For goods still in the manufacturers’ warehouses, this is likely to be the only legally compliant solution even under Austrian regulations, since they have presumably not yet been “placed on the market.” If the products are already at the retailer’s location, “stickering” is also possible, “but not easy to implement,” says Hofer. Timmann adds that, in his experience, there has certainly been cooperation between manufacturers and retailers in such cases. “But it’s a lot of work if the merchandise is already on the supermarket shelves.”

In addition to the Austrian solution for a transition period, there is now also a German one, although it does not go as far: The provision included in the German implementing law provides for a grace period of only two years; furthermore, injunctive relief may not be sought only if it would be “disproportionate in good faith,” says Timmann. Unlike the Austrian regulation, the German one relies on undefined legal terms. “The effect is the same,” but at the EU level, it is likely “easier to defend.”

This is all the more true given that the European Commission is now also considering similar issues: comparable considerations have also been included in the FAQs on the topic—though this has gone largely unnoticed so far. As Stranzinger-Maier explains, the aim is to take action “against the most harmful claims first.” Likewise, advertising claims that are no longer permissible in online communications—which can be adapted to the new rules with far less effort—should be penalized as a priority.

“That, however, is directed at the authorities,” Hofer points out. This would not prevent NGOs from challenging national implementing laws that they consider too lenient. Companies could still file lawsuits against competitors, arguing that the Austrian regulation violates EU law. Ultimately, the European Court of Justice would have to decide. “That could take some time, though—it buys us time,” says Hofer. Furthermore, this shift in thinking could also be helpful in some ways for Austria—and for affected domestic companies.

Does the regulation overshoot the mark?

The good thing about EmpCo, despite everything, is that it has “given more momentum” to the issue of greenwashing—more than would likely have been possible through case law alone, Stranzinger-Maier concludes. However: “Companies face major challenges,” and even “good actors” are having a hard time due to the current legal uncertainty. Especially since, despite the domestic transition period, preliminary injunctions regarding packaging labels could still be issued if a judge were to rule “that the Austrian exemption is invalid.” The affected company would then bear the consequences—even if the European Court of Justice were to rule otherwise at some later date.

It is also questionable, however, whether the three-year exemption might even extend further than intended. Based on the wording, this is conceivable, since the transitional provision does not explicitly refer only to those offenses that have just been added to the blacklist, but to the entire Unfair Competition Act (UWG) section as amended by the most recent amendment. It cannot be ruled out, therefore, that some practices previously considered unfair will now also remain free of civil liability for the time being. Although that was certainly never the intention.

Source: Die Presse, October 1, 2026