The web pages of www.commerzreal.com and www.klimavest.de to market the “klimaVest ELTIF ISEN L U 2183939003” fund. This fund invests primarily in wind and solar energy projects and thus is categorised as an “impact fund” that fallswithin the scope of the European Disclosure Regulation ((EU)2019/2088) and the Taxonomy Regulation ((EU) 2020/852). The parties disputed the advertising of the fund on the aforementioned websites. The subject matter of the dispute concerned two types of advertising: one related to a property certified by a rating agency and the other related to the fund’s “measurable” environmental impact in terms of targeted CO2 savings. As a result, Verbraucherzentrale Baden-Württemberg e.V. sued for injunctive relief to block the advertising, which the Regional Court of Stuttgart affirmed by granting injunctive relief pursuant to sections 8, 3, 5a (1) of the German Unfair Competition Act (UWG).
Comments of the parties
The plaintiff argued that it was not possible to measure the environmental impact of targeted CO2 savings, as advertised by Commerz Real Fund Management S.á.r.l. Only electricity actually generated could be reliably measured, whereas electricity saved could not. From the plaintiff's point of view, the advertising of a “measurable” environmental impact was misleading to consumers and violated sections 3, 5 para. 2 No. 1 and 5a para. 1 of the UWG. Furthermore, the plaintiff argued that advertising marked with the “Scope Award” was inadmissible. There was no further explanation on the websites as to the background for the award or criteria used in determining recipients. Therefore, in the opinion of the plaintiff, the advertising related to the award violated, at the very least, sections 3 and 5a (2) of the UWG.
The defendant countered by stating that, according to section 11 of the Renewable Energy Sources Act, green electricity enjoys feed-in priority over electricity generated by conventional means, and thus every kilowatt hour generated by means of renewable energy avoids the generation of one kilowatt hour of fossil fuel-generated electricity. The defendant confirmed that avoided amounts of CO2 as savings are of course not measurable, but that this is so obvious that the target audience would know what the term “measurable” was actually intended to convey. The defendant further stated that the measurements it carried out, which formed the basis for the challenged statements, were based on internationally established standards and presented to the target audience in the FAQs section of the website.
Reasons for the decision of the court
1. Regarding the measurability of the environmental impact
The court granted a claim for injunctive relief based on sections 8, 3, 5a para. 1 of the UWG, ruling that the challenged statements of the defendant on the abovementioned websites were unfair in the sense of section 3 para. 1 of the UWG and consequently should be classified as misleading advertising according to section 5a para. 1 of the UWG.
However, this was not due to the reasons put forward by the plaintiff. As considerations of sustainability are becoming increasingly relevant in purchasing decisions, advertising claims related to environmental protection must adhere to strict standards. Taking this and the individual case into account, the classification of the relevance of such advertising under section 5 (1) sentence 1 of the UWG depends on how a typical consumer who is reasonably informed and attentive perceives it.
In this sense, however, the terms “measurable contribution” and “measurable effect” used in the advertising should not have been strictly interpreted in a literal sense. Instead, “measure” is generally understood to mean a process of observation. Although the “measurement” of CO2 emission savings is by its nature impossible, such savings can be calculated approximately and therefore may be considered synonymous by the target audience.
The court found, however, that the disputed advertisement was nevertheless misleading due to insufficient clarification of the calculation method used, in the sense of section 5a para. 1 of the UWG. The method used, together with the disputed data, was not clearly explained, and it was not presented in the context of the advertisement. For consumers, the calculation method, which has a significant impact on purchasing decisions, constitutes essential information within the meaning of section 5a (2) No. 1 of the UWG and must therefore be displayed as clearly as possible on the means of communication used for the advertising, provided that space restrictions do not prevent this. The explanation provided under the FAQs heading on the “www.klimavest.de” website does not meet this requirement, since it also lacks a direct link to the “www.commerzeal.com” website. Such a link is in any case only provided on the “www.commerzeal.com” website. In any case, reference is only permissible if it is impossible to provide all essential information directly in the advertisement, taking into account the specific nature of the sales advertising and the restrictions associated with the medium of communication used, which in any case seems absurd as an exceptional constellation in the present case. Consumers require a clear and spatial context and should not have to actively search for the explanation in a subheading. In addition, the text of the FAQs only mentions the term “sustainability contribution”, which, however, cannot be found at all in the challenged advertisement and therefore cannot be interpreted as an explanation of the specific information.
2. Regarding the Scope Award
With regard to the advertised Scope Award, the court agreed with the plaintiff's arguments. Statements to this effect on the “www.commerzeal.com” website constituted misleading advertising pursuant to section 5a (1) of the UWG. The defendant had failed to provide sufficient information regarding the background for the award itself and the criteria used for determining award recipients, together with corresponding references.
For the reasons stated, the Regional Court of Stuttgart concluded that the claims of unfair competition were well founded and ruled in favour of the plaintiff in granting injunctive relief pursuant to sections 8, 3, 5a (1) of the UWG. However, it should be noted that the judgment is not yet final.
Client Alert 2023-075
