Cologne Higher Regional Court on transparency in sustainability advertising: requirements for clarity and accuracy

Another ruling on a greenwashing allegation has been issued: The Cologne Higher Regional Court held that advertising by an airline with the statement “CO2-neutral travel ... offset now and take off” constitutes anti-competitive misleading conduct if the environmental impact is only offset in the future and this is not made sufficiently clear (OLG Köln, Judgment of 13 December 2024 – 6 U 45/24).

Background of the Decision: The case concerned Eurowings, a Lufthansa subsidiary, which offered customers the option to offset the CO2 emissions caused by their flights. This was to be achieved either through the use of sustainable aviation fuels or by investing in climate protection projects, such as forest conservation and reforestation initiatives. The advertisement was challenged by the consumer protection association Deutsche Umwelthilfe.

The Court's Reasoning: The court found that the design of the website created the impression that CO2 compensation occurred before the flight took place, i.e., prior to the customers' departure. A significant portion of consumers were likely to believe that the environmental impact of their planned flight would be offset immediately after purchase. In reality, however, the compensation was achieved through the use of sustainable aviation fuels, which might only be utilized on future flights. Additionally, the exact extent of the compensation remained unclear. Eurowings should have provided this information directly alongside its advertising. While it is true that customers could access further details via a chain of links on the website, the court ruled this insufficient. Instead, the relevant information needed to be made directly available in connection with the advertising itself.

In its reasoning, the Cologne Higher Regional Court referenced the landmark decision of the Federal Court of Justice (BGH) on climate neutrality (BGH, Judgment of 27 June 2024 – I ZR 98/23). According to this decision, companies may only use ambiguous environmental terms such as “climate neutral” if the advertisement itself makes it clear what specifically renders the advertised product sustainable. For consumers, it is crucial to understand whether emissions are genuinely avoided or merely “offset.”

Conclusion: The ruling makes clear the need for meticulous scrutiny when advertising with sustainability terms. Courts demand that such advertising claims be complete and accurate on their own. In cases of ambiguity, any necessary clarification must be provided directly alongside the advertising claim. The courts do not accept the argument that there is typically insufficient space to include a comprehensive explanation.