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Corporate communications put to the test by greenwashing
On April 19, 2022, the Paris Court of Justice dismissed the "Confédération, Consommation et Cadre de vie" association's claim against Vattenfall Energies S.A., the French subsidiary of a Swedish group operating in France as an alternative electricity supplier.
But there are a number of lessons to be learned. The association claimed that Vattenfall's electricity offer to its private customers was presented in a misleading way, tantamount to greenwashing. It asked the judge to order the company to substantially modify the wording of its offer, subject to a fine of 5,000 euros per day, and to pay damages of 150,000 euros and 30,000 euros for loss suffered respectively by the members of the association and by Vattenfall.
The offer - "Electricité Eco" - was presented as being virtually CO2-free, thanks to the company's use of "guarantees of origin", a system of official certifications to offset the 10% fossil fuel content of the energy mix contained in all electricity supplied in France (in addition to 70% nuclear power and 10% renewable energies).
Thus, according to the court, by using the term "carbon neutrality", Vattenfall had not made any false or misleading claims, especially as the "guarantees of origin" scheme was clearly explained in the offer. Like it or not, this compensation system is legal. The judge also pointed out that "the allegation that low-CO² emitting sources are nuclear and renewable energies (wind, solar and biomass) cannot be considered false". Here again, despite the claims of some, nuclear power is low-carbon.
It may be a good thing that associations are concerned with chasing down companies whose marketing is misleading or deceptive; but in this case, that was clearly not the case.
Corporate communications put to the test of greenwashing: from the "Vattenfall" ruling by the Paris judicial court to the European Commission's proposed directive on environmental claims
Eco-laundering: a challenge for companies and judges alike, who are increasingly called upon to deal with the issue.
On May 11, 2023, the European Parliament adopted an amended version of Proposal for Directive 2023/0085 of March 22, 2023 on environmental claims. French judges, like courts in other countries, especially in Europe and North America, are increasingly called upon to rule on accusations of greenwashing made against companies.
Greenwashing is one of the unfair commercial practices defined by Article L212-1 of the French Consumer Code as "contrary to the requirements of professional diligence and (...) [which] alters or is likely to alter in a substantial manner the economic behaviour of a consumer who is normally informed and reasonably attentive with regard to a good or service". According to article L121-2 of the same code, "misleading" practices are those based on "allegations, indications or presentations that are false or likely to mislead", particularly as regards the essential characteristics of the good or service or the scope of the advertiser's commitments. Furthermore, according to article 121-3, a misleading practice such as greenwashing may result from an omission, i.e. when the company "omits, conceals or provides in an unintelligible, ambiguous or untimely manner substantial information...".
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