policy-brief-e-commerce-trade-off
Dieses Dokument ist Teil der Anfrage „Gutachten des Sachverständigenrats für Verbraucherfragen“
III. E-commerce through the lens of legal regulations 15
b) Withdrawal from the contract with the requirements of Article 246a Section 1 (2),
first sentence, no. 1 of the German Introductory Act to
The principle of pacta sunt servanda (agreements must the Civil Code (Einführungsgesetz zum Bürgerlichen Ge-
be kept) applies in both German law (cf. Section 241 setzbuche, EGBGB). It expires at the latest 12 months
(1) of the Civil Code) and European law. This means and 14 days following receipt of the goods (Section 356
that the parties are bound by their agreement, in this (3), second sentence, of the Civil Code). Dispatch of the
case the sales contract, and are obliged to achieve the declaration of withdrawal in good time is sufficient to
agreed performance. Legitimate withdrawal from the comply with the time limit (Section 355 (1), fifth sen-
contract in accordance with Section 355 (1) of the Civ- tence, of the Civil Code).
il Code is deemed to be an exception to this principle.
Reliable figures regarding the exercising of the right of The legal consequence of effective withdrawal is an-
withdrawal are yet to be obtained; however, the total nulment of the binding nature of the contract and the
proportion of returns is known. In 2018, 16.3 % of de- transformation of the sales contract into a restitution
livered packages and 12.1 % of ordered items were obligation (Section 355 (3), first sentence, of the Civil
returned; however, in addition to returns on account Code and Articles 12 et seqq. of the Consumer Rights
of the exercising of rights of withdrawal, these fig- Directive). The trader is obliged to reimburse the pay-
ures also include, for example, returns on account of ments received from the consumer within 14 days of
deliveries of the wrong goods and deliveries of faulty being informed of the decision to withdraw from the
goods. Section 355 (1) of the Civil Code applies only to contract (Section 357 (1) of the Civil Code and Article
consumer contracts, i. e. contracts between consum- 13(1) of the Consumer Rights Directive). In addition,
ers and traders, that have as their subject matter the the trader must reimburse the standard delivery costs
nongratuitous performance by the trader (Sections 312 if the consumer originally paid them (Section 357 (2)
(1), 310 (3) and 13 et seq. of the Civil Code; cf. Articles of the Civil Code and Article 13(1) and (2) of the Con-
2(1) and (2) and 3(1) of the Consumer Rights Directive). sumer Rights Directive). The consumer must send
back the goods within 14 days of informing the trader
As contracts in e-commerce are distance contracts of the decision to withdraw from the contract (Section
within the meaning of Section 312c (1) of the Civil Code 357 (1) of the Civil Code and Article 14 of the Consumer
and Article 2(7) of the Consumer Rights Directive, in Rights Directive). It would appear that there are no fig-
accordance with Section 312g (1) of the Civil Code, the ures available showing which traders charge costs and
consumer placing the order has a right of withdrawal which do not, and, if they do, how much they charge.
within the meaning of Section 355 (1) of the Civil Code
and Article 9 of the Consumer Rights Directive. In order The consumer bears the costs of return shipment of
to exercise the right of withdrawal, the consumer must the goods only if the trader has informed the consumer,
unambiguously inform the trader of the withdrawal pursuant to Article 246a Section 1 (2), first sentence,
from the contract, whereby it shall be sufficient for the no. 2 of the Introductory Act to the Civil Code, of this
consumer’s declaration to set out the consumer’s wish obligation (Section 357 (6) of the Civil Code and Article
to be definitively released from the contract. 14(1)(2) of the Consumer Rights Directive).55 Further-
more, the consumer shall be liable towards the trader
The declaration of withdrawal must usually be made for any diminished value of the goods if the diminished
within 14 days of receipt, i. e. physical acceptance, of value results from the handling of the goods other than
the goods by the consumer (Sections 355 (2) and 356 what is necessary to establish the nature, character-
(2) (1) of the Civil Code and Article 9(2)(b) of the Con- istics and functioning of the goods and the trader in-
sumer Rights Directive). However, in accordance with formed the consumer of the conditions, time limits and
Section 356 (3), first sentence, of the Civil Code, the procedure for exercising the right of withdrawal (Sec-
withdrawal period does not commence prior to the tion 357 (7) of the Civil Code and Article 14(2) of the
trader having informed the consumer in accordance Consumer Rights Directive).
55 More detailed information on costs and how they are borne in practice can be found on page 12.
16 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
c) Interim conclusion ensuring that they are evenly rebalanced. The e-com-
merce provisions under EU law, which were agreed by
The summary demonstrates that the provisions of the Member States together with the European Parlia-
consumer contract law laid down in EU law set out ment, fail to do precisely that.
the parties’ rights and obligations in detail. However,
they contain almost no specific, targeted provisions
for achieving the Sustainable Development Goals, al-
though consumer contract law is otherwise tightly reg-
ulated to the greatest extent possible. The way in which 2. Legal bases from production
consumer contract law has been designed reveals a
traditional understanding of consumer law in which
through to recovery
the primary focus is the development and expansion of
consumer rights in order to enable unencumbered con- In order to gain an overview of the legal framework con-
sumption as part of e-commerce. Achieving sustaina- ditions governing e-commerce with regard to textiles
ble consumption means addressing the responsibilities and consumer electronics, thought needs to be given to
of manufacturers, the legislature and consumers and more than just contract law alone. A full picture can be
Figure 1: European Environment Agency, Circular economy in Europe, EEA Report No 2/2016, 2016 (the layout has been modified).
III. E-commerce through the lens of legal regulations 17
achieved only by taking stock of all the legal provisions as suppliers of raw materials but also as producers.56
that apply to the various different stages of a product’s A major issue in terms of information gathering can be
life cycle, from the cradle to the grave or, perhaps more encountered as early on as this stage. Initial approaches
accurately, from the cradle to the cradle, so to speak, to resolving this issue have already been adopted, for ex-
i. e. from production through to disposal or recycling. ample the VDI Centre for Resource Efficiency (VDI ZRE)
There are, in fact, a variety of different regulations re- has developed standards for raw material demand.57
garding the manufacture, transportation, usage and
disposal of products. Most electronic devices are made from a variety of dif-
ferent metals extracted in numerous different coun-
This study focuses on consumer-related regulations tries. The same applies to the cultivation of textile
and those which are of particular interest from a sus- fibres. Country-of-origin labelling, which is relevant
tainability point of view. As such, there is a shift in per- from the point of view of consumers, is fraught with
spective. In addition to German statutory rules, in the extremely complex legal issues whereby national law,
light of the emergence of global supply chains, inter- EU law and world trade law become entwined and en-
national conventions and contracts as well as voluntary tangled. In principle, the European economic order
agreements of companies are also of key interest. and world economic order are based on a distinction
between product-related and process-related regula-
Identifying the relevant regulations relating to a prod- tions. From a global perspective, neither national nor
uct’s sustainability can be hard even for legal experts. European regulations can have a discriminatory effect
The summary below is intended to do two things: pro- on production outside of Europe. Whether and to what
vide a cross-sectional overview of the different regu- extent standardised European labelling obligations
lations that exist in each area and reveal the point in with regard to sustainable consumption are compat-
time at which consumers can, must or should obtain ible with the General Agreement on Tariffs and Trade
certain information regarding a product’s sustainability. (GATT)/World Trade Organization (WTO) is still a con-
No claim is made as to the description’s completeness. tentious issue. The desirable outcome from the per-
The sheer countless number of voluntary agreements, spective of consumers, i. e. disclosure of the country
labels and alliances at national, European and inter- of origin and perhaps even disclosure of the conditions
national level, which have at least an indirect impact under which the respective raw material was extracted
on a product’s overall sustainability credentials, means or product was manufactured, is proving to be a legal
that focus really needs to be centred on the essential minefield.58
framework conditions.
As manufacturers and sellers do not have to state
a) Cultivation/extraction of raw materials and the countries from which the raw materials that have
production requirements been used originated, either on the finished product or
at any other point, even particularly attentive, obser-
Before the actual product, for example a T-shirt or a vant and keen consumers cannot know which national
smartphone, can be produced, raw materials need to statutory regulations were applicable locally for the
be cultivated and harvested or extracted. South Africa, extraction of the raw materials used in the product
South America and Asia are of particular interest here that they are interested in purchasing.59 The issue is
56 International Resource Panel, Global Resources Outlook 2019: Natural Resources for the Future We Want, 2019; Munich Environmental Institute
(Umweltinstitut München), Anbau von Baumwolle [Cultivation of cotton]; MISEREOR, the German Catholic Bishops’ Organisation for Development
Cooperation, et al., Fairer Abbau, gerechte Teilhabe [Fair extraction and equitable participation], 2013.
57 VDI Centre for Resource Efficiency (Zentrum Ressourceneffizienz, VDI ZRE), Ressourceneffizienz – Bewertung des Rohstoffaufwands [Resource
efficiency – Evaluation of raw material demand], VDI Standard 4800, Part 2, 2018; also consult the Resources Commission at the German Environ-
ment Agency (Ressourcenkommission am Umweltbundesamt, KRU).
58 Sankari, S.E., Collective valuation of the common good through consumption: What is (un)lawful in mandatory country-of-origin labelling of non-
food products?, in: Do Amaral Junior, A., Klein Vieira, L., and De Almeida, L. (eds.), Sustainable Consumption: The Right to a Healthy Environment,
2019, pp. 207–227.
59 As from 1 January 2021, however, new rules will enter into force regarding the importation of four “conflict minerals” into the EU from conflict-
affected and high-risk areas: Regulation (EU) 2017/821.
18 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
further complicated by the fact that raw materials are AbwV)64 and Regulation (EC) No 1907/200665 must be
traded on exchanges and platforms. Companies which ensured. In most cases, these environmental legal re-
purchase raw materials on such exchanges and plat- quirements are rooted in EU law. In fact, the EU has
forms do not necessarily know and may not be able created a dense network of rules meaning that pro-
to find out where the raw materials originated. The duction within the EU must meet specific protection
same applies to the various different production stag- standards. However, even in the EU, legal requirements
es such as the spinning of raw fibres, textile finishing, and practical monitoring of such requirements can fall
the extraction of metals from ore, the manufacture of by the wayside. However, a Member State is preclud-
primary products and intermediate products, and the ed from preventing imports from another EU Member
assembly of electronic equipment. As part of global State on the sole ground that compliance with environ-
value chains, production processes span networks mental legal requirements is not efficiently monitored
and cross national borders in order to make the best in the EU country of origin.66
possible use of different sites’ strengths and make
production as a whole more efficient.60 As such, it is The reorganisation of the world economy with global
practically impossible to track and trace the statutory value chains and supply chains has increasingly fo-
regulations relating to the sustainability of the fin- cused political attention on the conditions under which
ished product in the countries of extraction, process- products from outside Europe, in particular from Asia,
ing and production. There is also another issue: even if Africa and South America, are made. This reorgani-
consumers knew which national statutory regulations sation is improving not only the opportunities that
applied to the production of the product in question, the manufacturer(s) and equipment suppliers have to
they could not be sure that compliance with the regu- obtain information about the process flow throughout
lations was actually ensured. Statutory sustainability the supply chain, but also the opportunities available
standards are, in fact, being gradually developed in to consumers to do the same, not least with the help
many developing countries; however, compliance with of modern means of communication. Whether and to
the standards is not universally sufficiently controlled what extent these opportunities for monitoring and ex-
or monitored by government authorities or independ- ercising responsibility are actually utilised as part of a
ent NGOs.61 legally binding framework is a whole other matter.
If production is carried out in Germany, compliance with A standardised legal obligation for European compa-
the Technical Instructions on Air Quality Control (Tech- nies to comply with humans rights standards and en-
nische Anleitung zur Reinhaltung der Luft, TA Luft) , 62
vironmental standards throughout their supply chains
the German Federal Ordinance on Immission Control does not yet exist but is currently being discussed.67
(Bundesimmissionsschutzverordnung, BImSchV) , the 63
Currently, only France has established a cross-sec-
German Waste Water Ordinance (Abwasserverordnung, tor binding human rights and environmental stand-
60 Herr, H., et al., Wirtschaftliche Entwicklung und Arbeitsbedingungen in globalen Wertschöpfungsketten [Economic development and working
conditions in global value chains], 2020.
61 Institute for Applied Ecology (Öko Institut), Working Paper 3/2018, Umweltschutz wahrt Menschenrechte! Deutsche Unternehmen in der globalen
Verantwortung [Environmental protection safeguards human rights! German companies and their global responsibility], 2018; German Federal
Environment Agency (Umweltbundesamt, UBA), Verantwortungsvolle Rohstoffgewinnung? Herausforderungen, Perspektiven, Lösungsansätze
[Responsible mining? Challenges, perspectives and approaches], 2017.
62 The Technical Instructions on Air Quality Control are designed to safeguard against adverse environmental impacts from air pollution caused by
technical facilities.
63 The German Federal Ordinance on Immission Control (Bundesimmissionsschutzverordnung, BImSchV) governs the requirements applicable to
combustion plants with regard to the release of harmful substances.
64 The German Waste Water Ordinance (Abwasserverordnung, AbwV) sets out the minimum requirements for introducing waste water into bodies
of water from the sources named in the annexes. Annex 38, for example, covers textile manufacturing and finishing, and Annex 40 covers metal
working and processing.
65 The REACH Regulation is a European chemicals regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals
(REACH).
66 See judgment of the Court of Justice of the European Union of 23 May 1996 – Case C-5/94.
67 European Commission, Study on due diligence requirements through the supply chain, 2020.
III. E-commerce through the lens of legal regulations 19
ard throughout supply chains for companies based As part of a monitoring process between 2018 and 2020,
in France. Other EU Member States have isolated, the Federal Government reviewed companies’ execution
sector-specific regulations or regulations relating to of the due diligence measures set out in the National
specific aspects of human rights or environmental pro- Action Plan. In the first survey phase (2019), just under
tection.68 In Germany, the discussion surrounding the 20 % fulfilled the requests,72 and the assessment of the
introduction of supply chain legislation is still ongo- second survey phase (2020) shows that just 13 % to 17 %
ing. In view of the impacts of the COVID-19 pandemic, of companies are fulfilling the requests relating to the
the German Federal Ministry for Economic Affairs and due diligence measures set out in the NAP.73 The find-
Energy (Bundesministerium für Wirtschaft und Energie, ings are based on a survey of companies and a consulta-
BMWi) is making the case for companies not to be put tion with stakeholder groups. The findings are reportedly
under any extra pressure or burden, whilst the German subject to a multi-level plausibility check. In a press re-
Federal Ministry of Labour and Social Affairs (Bundes lease issued on 14 July (the day on which the preliminary
ministerium für Arbeit und Soziales, BMAS) is not alone findings of the second survey were presented), Ministers
in its belief that sustainable supply chains will help Heil and Müller stated that the arrangements in the
companies deal with crises such as the coronavirus coalition agreement were now effective and that the in-
pandemic better.69 The National Action Plan (NAP) for tention was still to introduce supply chain legislation in
implementing the United Nations Guiding Principles on the current legislative period.74 The background to this
Business and Human Rights does not contain any man- is that both the coalition agreement and the NAP state
datory provisions but simply makes requests of com- that the Federal Government shall take further steps to
panies and hence relies on voluntary commitments. 70
ensure statutory regulation of the human rights due dili-
No general voluntary commitment to comply with the gence measures if less than 50 % of companies fulfil the
UN Guiding Principles exists for German companies. requests set out in the NAP. The call for the introduction
However, there are numerous sector, association and of supply chain legislation is supported, for example,
company-specific voluntary commitments. Their worth by the Federation of German Consumer Organisations
depends crucially on whether the companies actually (vzbv), the German Council for Sustainable Development,
fulfil the self-imposed obligations and publicly account which advises the Federal Government as an independ-
for them. There are, in fact, companies which are seiz- ent body of experts,75 and the Supply Chain Legislation
ing the initiative themselves and playing a leading role Initiative (Initiative Lieferkettengesetz), which consists of
in developing sustainable production.71 more than 100 NGOs.76
68 For example, the United Kingdom (Modern Slavery Act, 2015); France (Loi relative au devoir de vigilance, 2017); the Netherlands (Child Labour Due
Diligence Act, 2019); as a whole, Salminen, J., and Rajavuori, M., Transnational sustainability laws and the regulation of global value chains: compar-
ison and a framework for analysis, Maastricht Journal of European and Comparative Law, 2019, Vol. 26, Issue 5, p. 602.
69 See press release from the German Federal Ministry for Economic Affairs and Energy (BMWi) from 12 June 2020.
70 See also the Federal Government guidelines for promoting deforestation-free supply chains passed in April 2020.
71 Business & Human Rights Resource Centre, Business Statement, Our responsibility in a globalised world: A call for mandatory human rights and
environmental due diligence legislation, 2020.
72 German Federal Government, Monitoring des Umsetzungsstandes der im Nationalen Aktionsplan Wirtschaft und Menschenrecht 2016–2020
beschriebenen menschenrechtlichen Sorgfaltspflicht von Unternehmen, Zwischenbericht: Erhebungsphase 2019 [Monitoring of the status of the
implementation of companies’ human rights due diligence described in the National Action Plan for Business and Human Rights 2016–2020: Interim
report regarding the 2019 survey phase].
73 German Federal Government, Monitoring des Umsetzungsstandes der im Nationalen Aktionsplan Wirtschaft und Menschenrecht 2016–2020
beschriebenen menschenrechtlichen Sorgfaltspflicht von Unternehmen, Zwischenbericht: Erhebungsphase 2020 [Monitoring of the status of the
implementation of companies’ human rights due diligence described in the National Action Plan for Business and Human Rights 2016–2020: Interim
report regarding the 2020 survey phase]; see also German Federal Environment Agency (Umweltbundesamt, UBA), Umweltbezogene und menschen-
rechtliche Sorgfaltspflichten als Ansatz zur Stärkung einer nachhaltigen Unternehmensführung, Zwischenbericht Arbeitspaket 1 – Analyse der
Genese und des Status quo [Environmental and human rights due diligence as a means to strengthen sustainable business conduct, Interim report
work package 1 – Analysis of the original emergence and the status quo], 2019.
74 Joint press release of the German Federal Ministry for Economic Cooperation and Development (BMZ) and the German Federal Ministry of Labour
and Social Affairs (BMAS) from 14 July 2020.
75 German Council for Sustainable Development (Rat für nachhaltige Entwicklung, RNE), Sustainable Supply Chains, 2020.
76 Supply Chain Legislation Initiative (Initiative Lieferkettengesetz), „Ein starkes Zeichen“: Initiative Lieferkettengesetz zur Ankündigung eines EU-
Lieferkettengesetzes von Justizkommissar Reynders [“A strong signal”: Supply Chain Legislation Initiative on the announcement of EU supply chain
legislation by Commissioner for Justice, Didier Reynders], press statement from 30 April 2020; Business & Human Rights Resource Centre, 2020.
20 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
At European level, the production of electronic equip- law in the relevant country. In addition, the United Na-
ment is subject to the Ecodesign Directive77 which, in tions82, the OECD83 and the United Nations Global Com-
conjunction with the respective product-specific imple- pact initiative84 set out sustainability standards which
menting measures, is intended to create, for example, numerous multinational and national companies use as
incentives for sustainable development, in particular guidance. Since the recommendations and guidelines
sustainable choice, sustainable use of raw materials mentioned are not binding regulations, consumers
and sustainable manufacturing.78 Operators of ma- cannot be certain that products have been manufac-
jor facilities must also enter the emissions and waste tured in line with these principles.
generated as a result of their production operations
in the EU in a Pollutant Release and Transfer Regis- In the light of this, numerous governmental and
ter (PRTR)79 which is freely accessible to the public at non-governmental initiatives have been set up with
no charge so that consumers can at least theoretically the aim of obliging traders and companies to moni-
obtain information on this aspect of production.80 The tor compliance with certain sustainability standards
register provides information about specific facilities, throughout the production chain themselves and
sectors and locations. After searching for a specific make a record of the monitoring that they carry out. In
facility, users are provided with a data set which con- addition to the more general sustainability initiatives
tains information on releases to air, water and land, and such as Fairtrade, there are also sector-specific and
transfers of pollutants and waste. Non-experts are un- production stage-specific initiatives such as Green
able to do much with the information; however, the for- Button (Grüner Knopf) and the Partnership for Sus-
mat is currently being reworked, and the way in which tainable Textiles and, in relation to the electronics in-
the information is presented will potentially be made dustry, the Initiative for Responsible Mining Assurance
clearer and more accessible. (IRMA). Given the variety of agreements, labels, part-
nerships and alliances, which are intended to guar-
International conventions govern social sustainability in antee different sustainability standards for different
order to establish a standard which is independent of production stages but which have not been aligned or
national regulations. The International Labour Organ- harmonised with each other, it is not always immedi-
ization (ILO) has, for example, developed a set of min- ately obvious for whom which agreements apply and
imum Core Labour Standards. A total of 146 countries whether they involve only non-binding guidelines or
have ratified all eight Core Labour Standards, meaning provisions of a binding nature. Help is now at hand in
that they now apply virtually worldwide.81 However, the the form of several websites which provide an over-
standards are binding upon the states only as subjects view of the alliances and labels which are available for
of international law. For them to apply directly to com- a specific product or industry sector, for example the
panies, they would have to be transposed into national Siegelklarheit.de project initiated by the Federal Gov-
77 Originally Directive 2005/32/EC, recast by means of Directive 2009/125/EC; transposed into German law by means of the Energy Consumption-
Relevant Products Act (Energieverbrauchsrelevante-Produkte-Gesetz, EVPG).
78 As a whole: Ries, F., Report on the implementation of the Ecodesign Directive (2009/125/EC), Committee on the Environment, Public Health
and Food Safety, 2018; Durand, P., A longer lifetime for products: benefits for consumers and companies, Committee on the Internal Market and
Consumer Protection, 2017; Kemna, R., Wierda, L., and Aarts, S., Van Holsteijn en Kemna B.V. (VHK), Ecodesign Impact Accounting – Overview
Report 2016, prepared for the European Commission, 2016; Pietikäinen, S., Resource efficiency: moving towards a circular economy, 2014/2208
(INI), C
ommittee on the Environment, Public Health and Food Safety, 2015; Stamminger, R., and Geppert, J., Energielabel – Fluch oder Segen für
Verbraucher? [Are energy labels a curse or a blessing for consumers?], in: Bala, C., and Schuldzinski, W. (eds.), Der verantwortungsvolle Verbraucher:
Aspekte des ethischen, nachhaltigen und politischen Konsums [Responsible consumers: Aspects of ethical, sustainable and political consumption],
2015, pp. 109–121.
79 The German register can be consulted at thru.de. The reports are sent by the Member States to the European Commission and entered in the E-PRTR.
80 Users have various different options to choose from. They can either search for specific facilities or view a list of facilities within specific sectors
or in specific locations. As simply a data set with information regarding emissions of pollutants and waste is provided for each facility without any
comparative values for benchmarking, non-experts can find it difficult to extract much knowledge from it.
81 International Labour Organization (ILO), www.ilo.org; including Indonesia, the Democratic Republic of the Congo and Pakistan; however, Bangladesh
and India have ratified seven and six of the Core Labour Standards, respectively.
82 United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, 2011.
83 Organisation for Economic Co-operation and Development (OECD), OECD Guidelines for Multinational Enterprises, 2011.
84 Global Compact Network Germany, Die zehn Prinzipien des Global Compact [The 10 Principles of the Global Compact].
III. E-commerce through the lens of legal regulations 21
ernment or label-online.de which the Advisory Coun- b) Pre-contractual stage, advertising and
cil for Consumer Affairs mentioned in its Sustainable pre-contractual information
Consumption policy brief.85 However, their very exist-
ence alone is proof that these labels and initiatives, or Green claims are regulated by specific legal provi-
rather, the overwhelming number of these labels and sions, primarily under EU law, which concern product
initiatives is apparently not properly meeting consum- labelling but also possible infringements in the event
ers’ need for information. As part of a survey, 72 % of of the provision of false or misleading information.
respondents said that they felt confused by the variety These provisions cover a broad range of product-relat-
of different labels.86 Only one in six respondents said ed rules.89 General statutory rules governing environ-
that they felt well informed about the labels applied mental advertising do not exist.90 The legal boundaries
to products. 87
for environmental advertising should be gauged in line
with the ban on misleading advertising in accordance
The certification mark which was designed in order to with Sections 3 and 5 of the German Act Against Unfair
provide quality labels with trade mark protection and Competition (Gesetz gegen den unlauteren Wettbewerb,
was enshrined in national law in 2019 also has the UWG). Germany’s fair trading law is based on the Unfair
potential to help remedy the situation. Its proprietor Commercial Practices Directive.91 It does not contain
can guarantee the existence of certain properties and any legally enshrined obligations to provide informa-
characteristics, for example sustainability aspects, for tion. Advertisers are not obliged to provide consumers
goods and services for which the certification mark with clarification but they must also not mislead them.
has been registered. Mark applicants can obtain trade This means that, if a company’s advert states that its
mark protection only, for example, if they are inde- products are environmentally friendly and/or sustain-
pendent, i. e. they do not themselves supply the goods able, it is not obliged to provide consumers with all the
and services certified by them, and they disclose the intricate details as to why it deems the products to be
standards to be met with regard to product features environmentally friendly, but, conversely, it also must
and quality levels as well as the terms of use in a set of not mislead consumers by leaving out relevant pieces
rules governing use of the mark accessible to anyone of information, known as misleading by omission. It is
in the register of marks.88 It is still too early to be able difficult to draw a clear line. In case law and also in the
to gauge the effectiveness of the certification mark on debate surrounding the structuring of specific require-
sustainability. ments, there is a tendency to impose increasingly strict-
er standards for advertising products as environmen-
tally friendly. The ban on misleading advertising can, in
specific situations, be converted into an obligation to
provide information, the scope of which is determined
85 Liedtke, C., et al., Nachhaltigen Konsum und nachhaltige Produktion ermöglichen [Enabling sustainable consumption and sustainable production],
2020, p. 27.
86 Federal Consumer Initiative Association (Verbraucher Initiative), Wirkung von Siegeln auf das Verbraucherverhalten [The effect of labels on consumer
behaviour], 2016; 1,004 German-speaking individuals aged 14 and older were surveyed as part of a representative random sample.
87 Consumer Initiative Association (Verbraucher Initiative), 2016.
88 Liedtke, C., et al., Nachhaltigen Konsum und nachhaltige Produktion ermöglichen [Enabling sustainable consumption and sustainable production],
2020, p. 26.
89 European Commission, Misleading green claims, Extract of the Guidance for the implementation/application of Directive 2005/29/EC on unfair
commercial practices.
90 Köhler, H., Bornkamm, J., and Feddersen, J., Gesetz gegen den unlauteren Wettbewerb: UWG [German Act Against Unfair Competition]/Köhler, 38th
edition, 2020, Section 3 of the German Act Against Unfair Competition margin no. 9.19; approaches for rules under secondary legislation, which
define requirements for environmental advertising, are set out in the Munich Commentary on German Fair Trading Law (Münchener Kommentar zum
Lauterkeitsrecht)/Micklitz and Namyslowska, 2020, margin nos. 100 et seqq.
91 Directive 2005/29/EC; last amended by means of the Omnibus Directive (Directive (EU) 2019/2161) which came into force on 7 January 2020 and
must be transposed into national law by January 2022; however, no amendments are envisaged with regard to sustainability aspects.
22 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
by the courts.92 Advertising a product as being particu- available on the company’s website is sufficient.95 Links
larly environmentally friendly is therefore permitted in can be provided to the respective codes of conduct, or
principle. However, strict requirements are imposed the codes of conduct themselves can be inserted there.
in terms of the reliability of the advert’s claims in the However, the onus is on the consumer to take the in-
specific case in question.93 This is essentially measured itiative and access the information. In all other cases
based on the expectations of the average consumer of distance contracts, a “media-compatible presenta-
taking the overall circumstances into consideration, tion” (Article 246a Section 4 (3), first sentence, of the
whereby the trader must not make any false statements Introductory Act to the Civil Code) shall suffice. Where
or provide other information suited to deception in rela- contracts are concluded online, it is sufficient for the
tion to the product. Recently, the case law of the Court company to provide a link to the relevant information
of Justice of the European Union has shown a cautious prior to the conclusion of the contract and for the con-
tendency to deviate from the practice of using the av- sumer to be able to click through on the website.96 Even
erage consumer as a benchmark in favour of focusing here, the statutory regulation does not stipulate that the
more heavily on the specific target group.94 Whether this consumer must have accessed the information prior to
change of direction will result in stricter requirements concluding the contract, just that the consumer must be
for environmental advertising remains to be seen. able to access the information easily. This is partly on
account of legal barriers under European and interna-
Not least spurred into action by the EU, the German tional economic law, although there is some leeway for
legislature has continuously expanded the range of ob- further national approaches. This will be discussed be-
ligations to provide information imposed on manufac- low. The two product groups at the heart of e-commerce
turers and sellers. Despite how detailed pre-contrac- will, first of all, be presented in more detail.
tual obligations to provide information are for individual
contract types and individual legal remedies, there is In accordance with Section 4 of the German Textile
no regulation of product sustainability. In accordance Labelling Act (Textilkennzeichnungsgesetz, TextilKenn-
with Section 312d (1) of the Civil Code in conjunction zG) in conjunction with Regulation (EU) No 1007/2011,
with Article 246a Section 1 (1), first sentence, no. 10 of textile products may be placed on the market provided
the Introductory Act to the Civil Code, companies are that they have a label which details the fibre compo-
obliged to provide consumers with information regard- sition. This equates to a general obligation to provide
ing codes of conduct which apply to them (including, information prior to the conclusion of a contract. The
for example, voluntary commitments to uphold human problem is that, although traders must essentially
rights and meet environmental standards throughout state all the fibre constituents, a product can still be
the supply chain). However, in cases where presentation described as being exclusively composed of the same
options are limited in the distance contract (for exam- fibre if it contains no more than 2 % of extraneous fi-
ple contract conclusion via SMS), it is sufficient for such bres, provided this is technically unavoidable and is not
information to be “made available in an appropriate added as a matter of routine. Therefore, despite the
manner” (Article 246a Section 3 (2) in conjunction with labelling obligation, consumers cannot tell whether a
Section 4 (3) of the Introductory Act to the Civil Code). As product is really 100 % composed of the stated material
such, stating in the contract that further information is or whether it contains extraneous fibres. Also, if tex-
92 German Federal Court of Justice, Journal of Intellectual Property Law (BGH GRUR), 1991, pp. 548 and 549 – Umweltengel [Blue Angel, German
ecolabel]; German Federal Court of Justice, Journal of Intellectual Property Law (BGH GRUR), 1991, pp. 546 and 547 – “… aus Altpapier” (“made from
recycled paper”); Rohnke, C., Werbung mit Umweltschutz [Advertising and environmental protection], Journal of Intellectual Property Law (GRUR),
1988, pp. 667 and 669.
93 Ohly, A., and Sosnitza, O., Gesetz gegen den unlauteren Wettbewerb [German Act Against Unfair Competition]/Sosnitza, 7th edition, 2016, Section 5
of the German Act Against Unfair Competition (UWG), margin nos. 301 et seqq.
94 Purnhagen, K.P., and Schebesta, H., The behaviour of the average consumer: A little less normativity and a little more reality in [the] CJEU’s case
law? Reflections on Teekanne, ELR 2016, p. 590.
95 Beck Online Commentary (Beck’scher Online Großkommentar)/Busch, July 2020, Article 246a Section 4 of the German Introductory Act to the Civil
Code, margin no. 25.
96 Spindler, G., and Schuster, F., Recht der elektronischen Medien [Legislation on electronic media]/Schirmbacher, 2019, Article 246a of the German
Introductory Act to the Civil Code, margin nos. 246 et seqq.
III. E-commerce through the lens of legal regulations 23
tiles are to be subsequently recycled, the question as energy efficiency classes and, where applicable, infor-
to whether the fibres are pure fibres or blended fibres mation regarding their consumption of other resourc-
is extremely important, as complex and costly sorting es. The real problem with regard to sustainability here
and separation operations may need to be carried out is once again the issue of combining materials such as
before they can be reused.97 Other new issues are also metals and plastics to form hybrids, as the materials can
starting to emerge. Textile manufacturers are increas- no longer be separated during reprocessing.101
ingly incorporating electronics into clothing. This trend
is only in its infancy, and, although the main issue with At this stage, the aforementioned labels and member-
these products, which are referred to as “wearables” ships of sustainability alliances come into play. If con-
and “smart textiles”, concerns data protection, there sumers are particularly interested in a product’s sus-
are also labelling implications.98 tainability, they will need to pay close attention to its
sustainability credentials in the advertising and product
The European Environment Agency stipulates that it information. Assuming that the voluntarily provided in-
must be possible for any materials and components that formation fulfils its purpose, there is still the issue that
are used to be cascaded, if not recycled, or be reintegrat- consumers cannot verify whether manufacturers are ac-
ed into the biological cycle and contribute to protecting tually achieving their own self-imposed goals. The certi-
the environment.99 As such, either textiles must be made fication mark has the advantage here that the independ-
from biodegradable materials or the proper conditions ent mark proprietor is obliged to verify that the mark
must be met during manufacturing to enable subse- users, i. e. those selling the certified goods and services,
quent unmixed recycling. 100
However, the development continue to meet the standards set out in the mark pro-
of wearables is heading in the opposite direction. The prietor’s set of rules governing use of the mark.102 If they
incorporation of electronics is presenting recycling com- fail to meet those standards, use of the mark may be
panies with problems that have so far not been resolved. revoked. As such, the mark proprietor adopts a de facto
In theory, this falls within the scope of the Ecodesign Di- monitoring and control function on behalf of consum-
rective. However, there has so far been a lack of corre- ers. How this monitoring and control process will need
sponding legal provisions regarding product design and to look in practice remains to be seen.
the placing on the market of such textiles.
c) Transportation, in particular from the
The situation is similar with footwear whereby the mate- manufacturer to the wholesaler or trader and from
rial labelling obligation under Section 10a of the German the wholesaler or trader to the customer
Consumer Goods Ordinance (Bedarfsgegenständeverord-
nung, BedGgstV) applies in conjunction with Directive Information on how sustainable the transportation of a
94/9/EC. Electronic equipment is subject to Sections 3 product is, both from the production site to the premis-
and 6a of the German Energy Consumption Labelling es of the wholesaler or trader and from the latter to the
Act (Energieverbrauchskennzeichnungsgesetz, EnVKG), customer, is provided to customers only on a voluntary
in accordance with which energy consumption-relevant basis. Online traders are not obliged to state where a
products must, when sold or advertised, be labelled with product was produced, where it is currently being
97 Friege, H., Leitfaden zur Wiederverwendung und Verwertung von Alttextilien [Guidelines for the reuse and recovery of used textiles], 2020; Bartl,
A., Recycling und Wiederverwendung von Fasern aus Abfällen [Recycling and reuse of waste fibres], Österreichische Wasser- und Abfallwirtschaft
[Austrian Water and Waste Management] (ÖWAW), 2009.
98 North Rhine-Westphalia Consumer Organisation (Verbraucherzentrale Nordrhein-Westfalen), Unsportlich: Datenschutz-Mängel bei Wearables und
Fitness-Apps [Unsporting behaviour: data protection shortcomings with wearables and fitness apps], 2017; Kopp, R., and Sokoll, K., Wearables am
Arbeitsplatz – Einfallstore für Alltagsüberwachung? [Wearables in the workplace – gateways to daily monitoring?], Neue Zeitschrift für Arbeitsrecht
(NZA), 2i015, p. 1,352.
99 European Environment Agency, Circular economy in Europe, EEA Report No 2/2016, 2016.
100 Der Spiegel, Altkleidermarkt vor dem Kollaps: Die Fast-Fashion-Flut (Video) [Second-hand clothing market on the brink of collapse: The fast-
fashion flood (video)], 2020.
101 Reuter, M.A., and Van Schaik, A., Recycling Indices Visualizing the Performance of the Circular Economy, World of Metallurgy – Erzmetall, 2016.
102 See Liedtke, C., et al., Nachhaltigen Konsum und nachhaltige Produktion ermöglichen [Enabling sustainable consumption and sustainable pro-
duction], 2020.
24 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
stored, what means of transport will be used to get it used by the Court of Justice of the European Union in
to the end customer, how quickly it will be delivered or its interpretation of the relevant provisions; however,
whether the ordered items will be delivered in the same they cannot establish any separate obligations.
package or separately. Mail-order companies are also
not obliged to reveal average carbon emission figures The European Commission’s Ecodesign Working Plan
or similar resource consumption data. 2016–2019 specifies that requirements in terms of prod-
ucts’ durability, reparability und ease of reuse must be
Legal provisions covering product packaging for shipping taken into account when investigating possible Ecode-
purposes also exist. The German Packaging Act (Ver- sign implementing measures, as these product charac-
packungsgesetz, VerpackG), for example, states that the teristics depend in large part on the initial design of the
extent of the packaging must be kept to a minimum (Sec- product.106 In 2019, the first three Ecodesign implement-
tion 4 (1) of the Packaging Act), the materials used must ing measures were passed with provisions on the dura-
be reusable or recoverable (Section 4 (2) of the same Act), tion of the availability of and the delivery time for spare
and the packaging may be appropriately labelled in order parts as well as on the replaceability of spare parts
to enable the material used to be identified (Section 6 in with commonly available tools for the product groups
conjunction with Annex 5 of the same Act). of refrigerating appliances107, household washing ma-
chines and household washer-dryers108, and household
d) Post-contractual stage, in particular after-sales dishwashers109. The aforementioned provisions shall be
promotion and product usage valid as from March 2021. Factors such as a product’s
service life and the way in which it is used influence
The legislature is gradually taking more and more of an how sustainable it will actually be at the end of its life-
interest in consumers’ usage of products, as there is time. Companies can already have a positive influence
considerable potential here for influencing a product’s on their customers’ usage behaviour by providing them
overall sustainability credentials.103 Initial legal provi- with proper usage instructions, for example the wide-
sions regarding the usage stage are set out in the EU’s spread inclusion of washing and ironing instructions for
Digital Content Directive 104
and the EU’s Sale of Goods clothes. If consumers know how best to wash and iron
Directive105 from 2019, which must be transposed into an item of clothing, the product’s service life will be ex-
German law by 31 December 2021. Articles 7 (d) and tended, which will, in turn, have a positive impact on its
8 (2) of the Digital Content Directive and Article 7 (3) sustainability credentials. However, a very distinct set of
of the Sale of Goods Directive set out an update obli- problems are created if manufacturers recommend dry
gation for the product’s normal service life and/or for cleaning in order to avoid any potential liability if items
a period of time agreed under the contract. The aims are washed in a washing machine. Since it is clear that
set out in recital 32 of the Sale of Goods Directive for the average consumer has only limited knowledge of
achieving more sustainable consumption patterns and how to look after and maintain smartphones, washing
developing a circular economy are only of limited legal machines and dishwashers, there is significant potential
significance. Typically, the recitals are consulted and for increasing the durability of these products.110
103 Also, Schlacke, S., Tonner, K., Gawel, E., et al., Nachhaltiger Konsum bei der Produktnutzung als Herausforderung rechtlicher Steuerung [Sustainable
consumption in product usage as a challenge in terms of legal regulation], Zeitschrift für Umweltrecht (ZUR), 2016, p. 451.
104 Directive (EU) 2019/770.
105 Directive (EU) 2019/771.
106 European Commission, Ecodesign Working Plan 2016–2019, 2016, pp. 9 et seq.
107 Commission Regulation (EU) 2019/2024.
108 Commission Regulation (EU) 2019/2023.
109 Commission Regulation (EU) 2019/2022.
110 Jaeger-Erben, M., and Hipp, T., Letzter Schrei oder langer Atem? Erwartungen und Erfahrungen im Kontext von Langlebigkeit bei Elektronikgeräten
[The latest craze or products with staying power? Expectations and experiences with regard to the durability of electronic equipment], 2017; Bichler,
S., Gorny, S., and Stamminger, R., Are German consumers using their dishwashers in an energy efficient way? An online study of German house-
holds, EEDAL, 7th International Conference, 2013; Geppert, J., and Stamminger, R., Do consumers act in a sustainable way using their refrigerator?
The influence of consumer real life behaviour on the energy consumption of cooling appliances, in: International Journal of Consumer Studies, 34 (2)
2010, pp. 219-27; Gillingham, K., et al., The rebound effect is overplayed, Nature, Vol. 493, 2013, pp. 475–476.
