EU LAW
EU law making
In the climate change context, anything that can be agreed on an international level needs to
be implemented on a sub-governmental level. However, it is very hard, thus forming a big
gap. They need to be controlled on a local level as ghg emissions are produced on a local
level. The things that company, like shell, do to combat climate change are little to none.
Only 1% of investments are made in the expansion of renewable energy. Companies will
continue to invest in fossil fuel as it is more profitable, from a financial perspective a
company would be reckless reckless if it didn’t pursue oil and gas extraction. Recently, oil
and gas companies which were forced to adopt greener policies have announced that they will
reduce their climate targets through lobbying and advertising. The companies in this industry
are also the ones responsible for most of the stories which influence public opinion. By
advertising on climate change you make people think you are not the problem but a solution,
aka called greenwashing. One way of dealing with greenwashing is by creating legislative
bans on things that are claimed to be carbon-neutral. These advertisements create a false
social licence that allows companies to operate, fossil ads create the wrong impression that
the continued use of fossil fuels is ok, they also make false claims that are misleading to
consumers and these Misleading marketing claims are already prohibited today, under
consumer protection law. Therefore, NGOs seek a legislative ban on fossil
advertising: greenpeace has started an European Citizens’ initiative to ask the EU
Commission to issue a legislative proposal for a fossil advertising ban.
The question is can the EU enact a ban on fossil advertising?
The Hague has banned fossil advertising in the whole city - even on private property. A
company is now suing the city of the Hague because of this and leads to ‘is it possible to ban
fossil advertising’? A parallel to this is the tobacco advertising ban because adverting goes
beyond the facts: it goes to an authoritative figure, it channels sexuality, it involves body-
shaming. (see slides images) When looking at the tobacco advertising ban there are some
arguments: one being you are not allowed to harmonize as you just banned it, this goes
against article 114 about creating an internal market which is the exact opposite to the
tobacco directive which makes a ban on all advertisements. This is because the tobacco
advertising is focused on a national market thus removing the “internal market” dimension.
The CJEU rules that this directive goes to far as it influences cross border. Meaning that
when you prohibit the advertising that does not have a cross border relevance the directive
will go beyond the legislative competence provided by article 114 TFEU. Bringing in the
principle of subsidiarity which ensures that EU acts only when the objectives cannot be
sufficiently achieved by MS, specifically in certain policy areas. If the competence to ban
fossil advertising is established, the EU could enact such ban if it respects the limits set by the
treaties and principles of subsidiarity.
If it were to happen, how would it? The commission brings out an initiative for the law to the
parliament which discusses it and then finally moves onto the council. The Eu can create laws
, if it has the competence to do so this is called the principle of conferral. The EU can only act
within the powers expressly conferred upon it by the Member States through the treaties
(TFEU and TEU). The process involves the European Commission proposing laws, followed
by discussions and adoption by the Parliament and the Council, respecting the scope of
competences. The primary EU law is on constitutions, TEU and TFEU, where secondary
laws explain how all law is based on primary law. Primary law has direct effect meaning that
it has a capacity to be invoked directly in national courts by individuals producing legal
effects (EU primacy), Secondary law has both as regulations which have direct effect whilst
directives have direct applicability meaning that they must be ratified and become part of
national law before having direct effect. This links to the principle of conferral because the
EU MS have conferred upon the EU the competence to do something, seen in TFEU and
TEU.
Greenwashing and ban on advertising.
Environmental marketing is a type of marketing which focuses on sustainability claims.
Makes the positive inferal of the product. The problem is fast-fashion companies do this and
therefore produce greenwashing. Loreal scandal- they write 98% naturally derived, however
the truth is different as they explain on their website raining the environmental marketing
claim which is problematic.
Greenwashing is the portraying of organizations, products, or practices as positive for the
environment even though they are not. These include environmental claims which are false,
vague, selective, not supported by evidence and misleading. Greenwashing can be done by
various forms like text, images, or context. These environmental claims can go against laws,
like some regulatory instruments for the advertising industry.
Theory of compensation, where they state that CO2 is needed to keep the planet warm, and
there is a dysfunctional logic of CO2. Most important cases were shell and KLM.
Legal pathways for greenwashing claims. Hard law are EU and national law, the unfair
commercial practices directive which is then transcribed into Dutch law and finally courts.
Soft law on the other hand are like codes but they do not go into courts, so they are cheap and
there is no legal risk.
Focusing on hard law and the unfair commercial practices directive (UPCD). It requires EU
MS to implement a prohibition of unfair commercial practices it sets out general regulatory
rules.
The goal is in article 1, its focuses on the legal basis of the TFEU article 114 on
harmonization and approximation. An unfair commercial practice definition is in article 2(d),
so the way business act towards consumers. These practices are either aggressive (article 8,9)
or misleading (article 6,7).
Article 6 UCPD Misleading actions: are actions which contain false info which is either false
or deceiving if true making the consumer take a transactional decision which they would not
have taken otherwise. Test: is the info false? Is it misleading? Does the info cause a change in
decision?
EU law making
In the climate change context, anything that can be agreed on an international level needs to
be implemented on a sub-governmental level. However, it is very hard, thus forming a big
gap. They need to be controlled on a local level as ghg emissions are produced on a local
level. The things that company, like shell, do to combat climate change are little to none.
Only 1% of investments are made in the expansion of renewable energy. Companies will
continue to invest in fossil fuel as it is more profitable, from a financial perspective a
company would be reckless reckless if it didn’t pursue oil and gas extraction. Recently, oil
and gas companies which were forced to adopt greener policies have announced that they will
reduce their climate targets through lobbying and advertising. The companies in this industry
are also the ones responsible for most of the stories which influence public opinion. By
advertising on climate change you make people think you are not the problem but a solution,
aka called greenwashing. One way of dealing with greenwashing is by creating legislative
bans on things that are claimed to be carbon-neutral. These advertisements create a false
social licence that allows companies to operate, fossil ads create the wrong impression that
the continued use of fossil fuels is ok, they also make false claims that are misleading to
consumers and these Misleading marketing claims are already prohibited today, under
consumer protection law. Therefore, NGOs seek a legislative ban on fossil
advertising: greenpeace has started an European Citizens’ initiative to ask the EU
Commission to issue a legislative proposal for a fossil advertising ban.
The question is can the EU enact a ban on fossil advertising?
The Hague has banned fossil advertising in the whole city - even on private property. A
company is now suing the city of the Hague because of this and leads to ‘is it possible to ban
fossil advertising’? A parallel to this is the tobacco advertising ban because adverting goes
beyond the facts: it goes to an authoritative figure, it channels sexuality, it involves body-
shaming. (see slides images) When looking at the tobacco advertising ban there are some
arguments: one being you are not allowed to harmonize as you just banned it, this goes
against article 114 about creating an internal market which is the exact opposite to the
tobacco directive which makes a ban on all advertisements. This is because the tobacco
advertising is focused on a national market thus removing the “internal market” dimension.
The CJEU rules that this directive goes to far as it influences cross border. Meaning that
when you prohibit the advertising that does not have a cross border relevance the directive
will go beyond the legislative competence provided by article 114 TFEU. Bringing in the
principle of subsidiarity which ensures that EU acts only when the objectives cannot be
sufficiently achieved by MS, specifically in certain policy areas. If the competence to ban
fossil advertising is established, the EU could enact such ban if it respects the limits set by the
treaties and principles of subsidiarity.
If it were to happen, how would it? The commission brings out an initiative for the law to the
parliament which discusses it and then finally moves onto the council. The Eu can create laws
, if it has the competence to do so this is called the principle of conferral. The EU can only act
within the powers expressly conferred upon it by the Member States through the treaties
(TFEU and TEU). The process involves the European Commission proposing laws, followed
by discussions and adoption by the Parliament and the Council, respecting the scope of
competences. The primary EU law is on constitutions, TEU and TFEU, where secondary
laws explain how all law is based on primary law. Primary law has direct effect meaning that
it has a capacity to be invoked directly in national courts by individuals producing legal
effects (EU primacy), Secondary law has both as regulations which have direct effect whilst
directives have direct applicability meaning that they must be ratified and become part of
national law before having direct effect. This links to the principle of conferral because the
EU MS have conferred upon the EU the competence to do something, seen in TFEU and
TEU.
Greenwashing and ban on advertising.
Environmental marketing is a type of marketing which focuses on sustainability claims.
Makes the positive inferal of the product. The problem is fast-fashion companies do this and
therefore produce greenwashing. Loreal scandal- they write 98% naturally derived, however
the truth is different as they explain on their website raining the environmental marketing
claim which is problematic.
Greenwashing is the portraying of organizations, products, or practices as positive for the
environment even though they are not. These include environmental claims which are false,
vague, selective, not supported by evidence and misleading. Greenwashing can be done by
various forms like text, images, or context. These environmental claims can go against laws,
like some regulatory instruments for the advertising industry.
Theory of compensation, where they state that CO2 is needed to keep the planet warm, and
there is a dysfunctional logic of CO2. Most important cases were shell and KLM.
Legal pathways for greenwashing claims. Hard law are EU and national law, the unfair
commercial practices directive which is then transcribed into Dutch law and finally courts.
Soft law on the other hand are like codes but they do not go into courts, so they are cheap and
there is no legal risk.
Focusing on hard law and the unfair commercial practices directive (UPCD). It requires EU
MS to implement a prohibition of unfair commercial practices it sets out general regulatory
rules.
The goal is in article 1, its focuses on the legal basis of the TFEU article 114 on
harmonization and approximation. An unfair commercial practice definition is in article 2(d),
so the way business act towards consumers. These practices are either aggressive (article 8,9)
or misleading (article 6,7).
Article 6 UCPD Misleading actions: are actions which contain false info which is either false
or deceiving if true making the consumer take a transactional decision which they would not
have taken otherwise. Test: is the info false? Is it misleading? Does the info cause a change in
decision?
