Out-Law News 2 min. read

Airlines' sustainability claims focus of EU probe

The European Commission has written to 20 airlines identifying potentially misleading green claims made by the companies. The airlines have 30 days to outline measures to address the Commission’s concerns.

The letters, sent in conjunction with national consumer protection bodies, focus on claims made by the airlines that the CO2 emissions caused by flights could be offset by climate projects or through the use of sustainable fuels, to which consumers could contribute by paying additional fees. Also, it refers to the term “sustainable aviation fuels”, which the Commission said has been used by airlines “without clearly justifying the environmental impact of such fuels.

The authorities are concerned that the identified practices can be considered as misleading actions which would fall under the EU’s Unfair Commercial Practices Directive – articles 5, 6 and 7 of the Directive prohibit unfair commercial practices in the form of misleading actions or omissions towards consumers.

Fabian Klein, a competition law expert at Pinsent Masons, said: “Airlines are not unwilling to transform their business models into more sustainable ones, but they face many challenges that make it hard for them – be it technical limitations or a very strict regulatory regime to ensure safety. This makes it hard for them to implement changes. Despite this, the industry has been very actively advertising its green credentials recently.”

The Commission sent the letter in conjunction with the CPC authorities, which are responsible for the enforcement of EU consumer protection laws. It was triggered by a coordinated action started in June 2023, when consumer groups from 19 countries filed complaints with the European Commission and the network of consumer protection authorities (CPC) alleging that 17 European airlines have made misleading climate-related claims that breach EU rules on unfair commercial practices.

The Commission and CPC authorities request that the airlines come up with measures to address their concerns within 30 days. Once the Commission receives the responses, there will be meetings with the CPC network and the airlines to discuss the solutions proposed by the companies. The Commission will also monitor the implementation of the agreed-upon changes. “If the airlines involved do not take the necessary steps to solve concerns raised in the letter, CPC authorities can decide to take further enforcement actions, including sanctions”, the Commission said.

The EU is about to implement new and much stricter rules on greenwashing. In March, the so-called Empowerment Directive was adopted as the first of two major legal changes. The second one, the Green Claims directive, will likely be adopted after the election, but still in the near future. “Even though the Empowerment Directive will only actually come into force in two years’ time when the transition period ends, the Commission here gives the impression as if these rules would already have to be applied. It obviously wants to set a standard on how to apply these rules already before they have to be implemented on a national level”, Klein said.

According to Klein, it can be taken as a trend that green claims will face tougher scrutiny even in the lead-up phase to these two legislative texts becoming applicable. “Companies should be extra careful when making such statements, because the reputational risk associated with this for their brands is enormous, and the pitfalls are various due to the high level of detail in these regulations”, he said.

“The reaction the individual airlines will now present to the European Commission and the ensuing discussions will therefore be highly relevant in setting the standards for green claims for the coming years.”

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