Reed Smith Client Alerts

In its judgment of 6 February 2023 (file number 35 O 97/22 KfH), the Regional Court of Stuttgart ruled on a legal dispute between Verbraucherzentrale Baden-Württemberg e.V. (plaintiff) and Commerz Real Fund Management S.á.r.l. (defendant). The defendant, is a company with its registered office in Luxembourg is a wholly owned subsidiary of Commerzbank AG (Frankfurt am Main).

作者: Daja Apetz-Dreier Anselm Reinertshofer Felicitas Scriba

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.