POLAND Trends and Developments Contributed by: Szymon Gogulski, Marek Oleksyn and Damian Ludwiniak, Sołtysiński Kawecki & Szlęzak
or are likely to deceive consumers, even if the informa - tion is factually correct, in relation to the main charac - teristics of the product, for example, such as: • its composition; • the method of manufacture; • its specification; or • the results and material features of tests or checks carried out on the product. This sample list of types of product information may also very well apply to unfair green or environmental claims. Moreover, the Unfair Commercial Practices Directive sets out a blacklist of specific commercial practices that are always considered unfair, including: • displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisa - tion; • claiming that a code of conduct has an endorse - ment from a public or other body, which it does not have; or • claiming that a trader (including its commer - cial practices) or a product has been approved, endorsed or authorised by a public or private body when it has not, or making such a claim without complying with the terms of the approval, endorse - ment or authorisation. Again, green or environmental claims may also fall within the scope of such blacklisted commercial practices – for example, where a trader unfairly claims that its product has received an “eco-friendly”, “100% degradable”, or “sustainable” certificate that does not exist or has expired. Greenwashing in advertising Advertising and promotion are the driving forces behind almost every sector of the economy. Build - ing recognition and positive associations with a brand typically requires years of dedicated effort, supported by creative, coherent, and consistent advertising com - munication. Even a single mistake in the content or delivery of an advertising message can have lasting consequences for a business. In the EU legal system, the framework for fair advertis - ing activity in each sector of the economy is primarily
determined by the provisions of Directive 2006/114/ EC on misleading and comparative advertising, adopt - ed on 12 December 2006 (the “Advertising Directive”). The purpose of this EU legislation is to protect against “misleading advertising”. Advertising is considered misleading whenever it can, in any way, deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour. In determining whether advertising is misleading, all its features must be taken into account, particularly any information it contains concerning the characteristics of products – eg, their nature, composition, method of manufacture, fitness for purpose, or specification. As can be seen from the above list, a given “green advertisement” can be found unfair in many cases, and it will ultimately be up to the court to evaluate a given advertising message. Importantly, with respect to the burden of proof rules, the Advertising Directive empowers the courts and administrative authorities of EU member states to require traders to provide evi - dence of the accuracy of factual claims made in their advertising. Directive 2024/825 of 28 February 2024 – upcoming new weapon against unfair “green” traders The increase in greenwashing activity in Europe has resulted in the EU’s legislative initiative aimed at strengthening consumers and businesses, as well as national authorities and courts, and providing them with the necessary tools to counteract such unfair practices. One such newly adopted piece of legislation is Directive 2024/825 of the European Parliament and of the Council of 28 February 2024 amending Direc - tives 2005/29/EC and 2011/83/EU as regards empow - ering consumers for the green transition through bet - ter protection against unfair practices and through better information (the “Greenwashing Directive”). One of the key goals of the Greenwashing Directive is to more effectively counteract the practice of pseudo- ecological marketing (ie, misleading claims of environ - mental performance). The EU’s approach to achieving this goal is to amend the Unfair Commercial Practices Directive by introducing new terms related to green - washing (eg, “environmental claim”, “generic environ -
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