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 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.
III. E-commerce through the lens of legal regulations 25
Another usage aspect is of relevance in the case of ry, short product life cycles not only provide them with a
consumer electronics. If, over time, a product be- chance to differentiate themselves from the competition
comes damaged, the customer’s decision as to wheth- but also provide them with an opportunity to generate
er to continue or stop using the product will crucially higher sales figures with new purchases. Companies
depend on whether the product can, in principle, be which are quick to innovate not only have a stronger
repaired and, if so, whether the repair can actually be say in terms of pricing but can also potentially improve
carried out in the case in question (for example wheth- their cost position through economies of scale and ex-
er the necessary spare parts are still in stock) and how perience curve effects. Together, both lead to attractive
much it would cost. In response to a survey, 74 % of profits for innovative products. Consumers are ambiva-
consumers said that they decided not to get their elec- lent, and their position changes depending on the prod-
tronic equipment repaired due to the costs involved.111 uct. In the case of small items of electrical equipment,
Consumers feel that a repair is worth doing only if the which are the central focus of the study, consumers may
value of the product after the repair has been carried welcome and even demand technical innovation. Their
out is at least as high as the cost of the repair and/ actual purchasing habits correspond with their desire
or the repair will at least extend the product’s service for sustainable products, expressed in surveys, only to a
life. However, the manufacturer or trader would have limited degree.113 On the other hand, there are also con-
to and would have to be able to provide information sumers who leap frog, meaning that, when faced with
about the service life. As far as is known, there are ever-shorter innovation cycles, they simply skip one
no figures available regarding the minimum value of generation of the product in question.114
small appliances below which carrying out a repair is
deemed not to be cost-effective. At the same time, there are also indications that com-
panies purposefully limit the service life and useful life
Despite discussing the minimum durability of products of their products and therefore induce premature age-
as well as after-sales management and customer ser- ing or a loss of functionality in order to encourage sales
vices for decades, the Member States of the EU have of new products (known as planned obsolescence).115
failed to agree on a set of common rules, with the ex- However, planned obsolescence could prove to be a
ception of the limited provisions of the Digital Content clever and useful move if it prevents wear from occur-
Directive and the Sale of Goods Directive. The latter at ring which would make recycling a product, individual
least specify that the manufacturer must supply security components or materials difficult or even impossible.
updates for the duration of the contract or, in the case of This would need to be accounted for by manufactur-
a single act of supply, a period of time that the consum- ers, communicated and justified to consumers and
er may reasonably expect, given the type and purpose integrated as part of a corresponding fair usage-fo-
of the digital content or digital service and taking into cused product management and recycling programme.
account the circumstances and nature of the contract.112 Repairs can, of course, extend a product’s service life
It is usually not in companies’ interests for consumers and hence fundamentally improve its overall sustain-
to use products for as long as possible. On the contra- ability credentials, but they can also create conflicts
111 Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband, vzbv), press release from 6 June 2017, Elektroschrott ver
hindern – Reparaturen fördern [Preventing e-waste by encouraging repairs].
112 Article 8(2) of the Digital Content Directive.
113 Consumer surveys show that the vast majority of consumers want durable and long-lasting products: French Agency for Ecological Transition,
formerly the French Environment and Energy Management Agency (Agence de la Transition Écologique, formerly the Agence de l’Environnement et
de la Maîtrise de l’Energie, ADEME), Evaluation économique de l’allongement de la durée d’usage de produits de consommation et biens d’équipement
[Economic evaluation of extending the service life of consumer goods and items of equipment], 2020. How consumers actually behave is another
question altogether.
114 Backhaus, K. and Bonus, H., Die Beschleunigungsfalle oder der Triumph der Schildkröte [The pitfalls of moving too quickly and the tortoise’s
triumph], 1998.
115 Boos, A., Brönneke, T., and Wechsler, A., Konsum und nachhaltige Entwicklung: Verbraucherpolitik neu denken [Consumption and sustainable
development: Rethinking consumer policy], 2019; Brönneke, T., and Wechsler, A., Obsoleszenz interdisziplinär: Vorzeitiger Verschleiß aus Sicht von
Wissenschaft und Praxis [An interdisciplinary approach to obsolescence: Premature wear from a theoretical and practical point of view], 2015.
26 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
with aspects relating to sustainability and consumer waste avoidance, whereby, for example, the consumer
protection.116 Looking at the overall picture, exchang- resells the product as a used, second-hand good.121
ing a product for a newer, more innovative product can, If second-hand goods are sold by a trader, the trad-
in individual cases, actually be more sustainable than er benefits from less stringent legal provisions com-
repairing an old device. It is detrimental to consumers pared to the sale of new goods in that, in accordance
if repairs and a longer service life ultimately result in with Section 476 (2), second half-sentence, of the Civil
higher purchase prices and reduced fulfilment of con- Code, the warranty can be limited to one year (and not
sumers’ needs. However, the reverse is also true. The a minimum of two years as is the case with new goods).
ability to purchase products which have a short lifespan Waste avoidance is followed in the order of preference
at low prices is of little use to consumers. These con- by preparation for reuse, i. e. refurbishment, of the
ditions should be taken into account when a product is product so that it can once again serve its original
being created and designed. Requirements should, as purpose.122
stated in the Ecodesign Working Plan 2016–2019, gov-
ern market access in a legally binding way.117 Companies have recently emerged, in particular in the
area of electrical and electronic equipment, which pur-
Return fraud is a similarly problematic phenomenon. chase, check and, where applicable, repair used items
This term is based on the assumption that, when cer- of equipment and then sell them on as second-hand
tain returns are made, consumers are, in fact, abusing products. The less stringent legal provisions under
the opportunity afforded to them under Section 312g of Section 476 (2), second half-sentence, of the Civil
the Civil Code 118
and, for example, returning a wedding Code (shorter statute of limitations) also apply here. In
dress, an evening gown or a metal detector which was practice, lots of companies provide longer warranties
purchased in order to find a lost set of keys after a sin- covering their repair work in order to gain customers’
gle use and then requesting their money back from the trust. If a product cannot be refurbished or is not worth
seller. Studies show that consumers’ proclivity for this refurbishing, it can also be recycled. Recycling means
type of behaviour varies based on a number of different any process whereby waste is processed into prod-
factors such as gender, age and education. 119
ucts, materials or substances either for their original
or other purposes.123 Both textiles and electrical and
e) Cessation of use, in particular disposal and electronic equipment are being increasingly processed
reprocessing (refurbishment) at large-scale recycling plants in order to extract sec-
ondary raw materials from them. In 2019, 17.4 % of the
If a consumer decides to cease using a product, the word’s e-waste124 was recycled, whereas the fate of the
question arises as to what its future fate will be. An remaining 82.6 % remains unknown.125 At 42.5 %, Eu-
overview of the different options available can be rope boasts the highest recycling rate, whereas Africa
found in the waste hierarchy set out in Section 6 of the ranks in last place with a rate of 0.9 %.126 In 2018, with
German Circular Economy Act (Kreislaufwirtschafts- a collection rate of 43.1 %, Germany narrowly missed
gesetz, KrWG). 120
First in the order of preference is the EU’s collection target of 45 %. However, the recy-
116 Schlacke, S., et al., Nachhaltiger Konsum [Sustainable consumption], pp. 453 et seq.
117 Resources Commission at the German Environment Agency (Ressourcenkommission am Umweltbundesamt, KRU), Product Labelling Body for the
promotion of product resource efficiency and recyclability, 2017.
118 See Harris, L.C., Fraudulent Return Proclivity: An Empirical Analysis, Journal of Retailing 84, 2008, pp. 461–476.
119 Harris, L.C., Fraudulent Return Proclivity, p. 465.
120 National transposition of the European Union’s Waste Framework Directive, Directive 2008/98/EC. The German legislation is currently being
reworked; see ministerial draft bill of 5 August 2019: German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, ministerial
draft bill for legislation transposing the European Union’s Waste Framework Directive.
121 Section 3 (20) of the German Circular Economy Act (Kreislaufwirtschaftsgesetz, KrWG).
122 Section 3 (24) of the German Circular Economy Act.
123 Section 3 (25) of the German Circular Economy Act.
124 In 2019, 53.6 million tonnes of e-waste were produced worldwide; by 2019, the volume of global e waste rose by 21 % compared to 2014 (Forti, V.,
et al., The Global E-waste Monitor 2020, Quantities, flows and the circular economy potential, 2020).
125 Forti, V., et al., The Global E-waste Monitor 2020, 2020.
126 Forti, V., et al., The Global E-waste Monitor 2020, 2020.
III. E-commerce through the lens of legal regulations 27
cling rate indicates only what proportion is recovered, measures in response to this and removed its textile
not what proportion is used in new products or in what collection containers, as handing over any collected
capacity. A precise figure regarding this is not available textiles to textile recycling companies is proving less
for Germany. and less worthwhile.130 The Textile Recycling (Textilre-
cycling) trade association highlights the fact that the
The German Federal Environment Agency (Umweltbun- cost of incinerating non-recyclable textiles has sky-
desamt, UBA) believes that it is possible to increase rocketed in recent years.131 It is therefore calling for a
the collection rate by significantly simplifying the op- fee to be imposed within the fashion industry for each
tions available for consumers to hand used products individual item of clothing sold in order to contribute
back. 127
Increasing the number of drop-off points in towards the collection and recycling costs.132 Given that
the immediate vicinity of the final users of old items of electronics are now also being incorporated into cloth-
equipment could make returning them easier and more ing, this call will grow only louder as recycling process-
convenient and hence increase the collection rate. At es become more and more complicated and expensive.
the same time, the obligation set out in Section 18 (2) Recycling plants are subject to the same legal provi-
of the German Electrical and Electronic Equipment Act sions as the production plants which make the original
(Elektro- und Elektronikgerätegesetz, ElektroG) for man- products (Technical Instructions on Air Quality Control,
ufacturers to inform private households of the options Federal Ordinance on Immission Control, Waste Water
available for returning used items of equipment and for Ordinance and Regulation (EC) No 1907/2006). There
having them collected needs to be fleshed out in spe- are also opportunities for other types of recovery (in
cific terms so as to ensure that consumers are aware particular energy recovery and backfilling) as well as
of the options available to them. Another albeit more the disposal of waste, for example by transferring it to
complicated approach would be to introduce a depos- a permanent storage site.
it-refund system (cf. Section 25 (1) (2) of the Circular
Economy Act) for electrical equipment, similar to the Essentially, waste must be handed over to public dis-
one in place for beverage packaging, as recently pro- posal companies,133 i. e. bodies mandated to dispose of
posed by The Left Party parliamentary group in the waste, if the waste producer or owner cannot or does
Bundestag.128 However, there are subsequent follow-up not wish to use it (Sections 7 (2) and 17 (1) of the Cir-
questions which require more in-depth investigation.129 cular Economy Act). To ensure that waste can be hand-
ed over to the right disposal company, manufacturers
There is another issue which needs to be addressed re- are obliged, as part of their product stewardship com-
garding textile recycling. In view of the fact that new col- mitments in accordance with Section 23 (2) (3) of the
lections are launched more and more frequently these Circular Economy Act, to label products which contain
days, firstly, there are more and more items of clothing pollutants.
in circulation and, secondly, the quality of these items is
suffering as a result of increased production pressure. Special rules apply to waste electrical and electronic
However, quality has a major impact on recycling suc- equipment in this respect. Bodies mandated to dispose
cess rates. The city of Hamburg has taken appropriate of waste (district and city councils) can choose whether
127 German Federal Environment Agency (Umweltbundesamt, UBA), Elektroaltgeräte [Electrical and electronic waste], 2020.
128 Bundestag printed paper (BT-Drs.) 19/19642 from 28 May 2020.
129 For more in-depth information: Zeit Online, article from 5 January 2020, Grüne wollen Pfand auf Handys und Tablets einführen [The Greens want to
introduce a deposit-refund system for mobile phones and tablets].
130 Der Spiegel, Altkleidermarkt vor dem Kollaps (Video) [Second-hand clothing market on the brink of collapse (video)], 2020.
131 German Association for Secondary Raw Materials and Waste Disposal (Bundesverband Sekundärrohstoffe und Entsorgung, bvse), Textilstudie 2020:
Bedarf, Konsum und Wiederverwendung von Bekleidung und Textilien in Deutschland [Textiles study 2020: Demand, consumption and recycling of
clothing and textiles in Germany], 2020.
132 Der Spiegel, Altkleidermarkt vor dem Kollaps (Video) [Second-hand clothing market on the brink of collapse (video)], 2020.
133 In accordance with Section 69 of the German Circular Economy Act (Kreislaufwirtschaftsgesetz, KrWG), failing to separate or incorrectly separating
waste is illegal. Depositing waste which is toxic to the environment anywhere other than the allocated facilities is punishable in accordance with
Section 326 of the German Criminal Code (Strafgesetzbuch, StGB).
28 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
to introduce a send-in system or a pick-up system.134 ny. In fact, it is not just a register but an integral part
These bodies have made extensive use of the option of the overall waste management system. Manufac-
to delegate the task of receiving or collecting waste to turers and sellers are exempted from having to hand
public service companies. They can either award con- over waste to disposal companies if they wish to take
tracts in-house or by means of an invitation to tender. products back for themselves (Sections 17 (2) and 23
The e-waste which is subsequently collated can either (2) (5) of the Circular Economy Act in conjunction with
be shredded or dismantled. Unlike shredding, disman- Section 26 of the same Act). The party responsible for
tling allows the materials involved to be fully recycled. product stewardship (manufacturer or seller) must in-
For this to happen, the recycler needs to know which form the consumer of the option to hand the product
products and materials or mixtures of materials were back137 (Section 23 (2) (4) of the Circular Economy Act).
originally used. However, in the case of hybrid products, In practice, it is often impossible to identify who the
even having accurate information to hand regarding the manufacturer was because the label has faded over
composition of the materials is of no help. Materials time, thus making it impossible to hand the item back.
and components cannot be dismantled into unmixed As such, the resulting cost must be covered by the re-
waste with current separation processes. 135
The Elec- cycling companies which receive waste electrical and
trical and Electronic Equipment Act 2020 transposes electronic equipment for which the manufacturer can
the European Waste Electrical and Electronic Equip- no longer be identified.
ment Directive136 into German law. The Waste Electrical
and Electronic Equipment Directive had, for one thing, In accordance with Section 17 (1) of the Electrical and
introduced a new classification system. Equipment Electronic Equipment Act, sellers which have a shop
classification is the essential first step for any repro- floor space of 400 m² or more dedicated to electrical
cessing. However, one category in particular presents and electronic equipment are obliged to take back
the recycling industry with all sorts of problems. Small waste electrical and electronic equipment in exchange
items of IT and telecommunications equipment with for the consumer purchasing a similar new item of
an external dimension of a maximum of 50 cm are as- equipment. Consumers are also allowed to take back
signed to a single category without any further differ- to such sellers up to five old items of equipment which
entiation despite the fact that they are composed of an fall under the same category of equipment, provided
array of different materials and components. that none of the external dimensions exceed 25 cm.
Sellers are not obliged to accept items of equipment
In accordance with Section 5 of the Electrical and which are larger and fall under the Electrical and Elec-
Electronic Equipment Act, manufacturers must set up tronic Equipment Act (edge length 50 cm). Environ-
a joint body (clearing house) for waste electrical and mental Action Germany (Deutsche Umwelthilfe) has
electronic equipment. Germany’s Waste Electrical and initiated legal proceedings against two online traders
Electronic Equipment Register Foundation (Stiftung on the grounds of consumers’ having to travel unrea-
EAR) has taken over this role. It registers manufactur- sonable distances to hand back their used products.138
ers of electrical and electronic equipment and coor- Furthermore, e-waste and textile waste can be taken to
dinates the provision of collection containers and the designated collection points, so long as proper notifica-
collection of waste equipment with the public waste tion has been provided regarding the collection points
management authorities across the whole of Germa- (Section 17 (2) (3) and (4) of the Circular Economy Act in
134 Section 13 (1) and (3) of the German Electrical and Electronic Equipment Act.
135 Reuter, M.A., and Van Schaik, A., Recycling Indices Visualizing the Performance of the Circular Economy, World of Metallurgy – Erzmetall, 2016;
Reuter, M.A., Van Schaik, A., and Ballester, M., Limits of the Circular Economy: Fairphone Modular Design Pushing the Limits, World of M
etallurgy –
Erzmetall, 2018; Reuter, M., Hudson, C., Van Schaik, A., et al., United Nations Environment Programme (UNEP), Metal Recycling: Opportunities,
Limits, Infrastructure. A Report of the Working Group on the Global Metal Flows to the International Resource Panel, 2013.
136 Directive 2012/19/EU, amended by Directive (EU) 2018/849.
137 Product stewardship as such, which also includes the provision of information regarding options to take used products back, is an objective which is
taken into account as part of the interpretation and consideration of other legal provisions. (Beck Online Commentary on German Environmental Law
(Beck’scher Online-Kommentar zum Umweltrecht)/Konzak, 54th edition, April 2019, Section 23 of the German Circular Economy Act, margin no. 7).
138 Judgment of Dresden Regional Court of 5 December 2019 – file reference no. 44 HK O 147/18; Judgment of Ingolstadt Regional Court of 21 February
2020 – file reference no. 2 HK O 1582/18.
III. E-commerce through the lens of legal regulations 29
conjunction with Section 18 of the same Act).139 These The issue is that not only do entire fields of law exist in
collection points are either commercial or charitable in complete isolation from each other, such as consumer
nature (for example clothing containers of commercial law and waste legislation or consumer law and pro-
textile recyclers or charities). They are faced with all visions regarding production both in Germany and in
the usual problems that are caused on account of insuf- other countries within the EU, but also, and perhaps
ficient labelling of product materials (hybrid products) worse, when it comes to achieving the goal of sustaina-
and the existence of shortcomings in the classification ble consumption, provisions set out in public law, which
of textiles and electrical equipment. apply to society as a whole, and provisions set out in
private law, which apply to the parties to a contract,
f) Conclusion are not synchronised. Consumers have, to date, not
been sufficiently taken into account, in their capacity
The legal situation outside of contract law under the as the party potentially being addressed by the rules
Civil Code varies and is unclear for politicians, for or at least in their capacity as the beneficiaries of the
businesses and for consumers. This is not only the rules, when the rules have been drawn up. A poignant
case for vulnerable and trusting consumers, as even example is the lack of coordination between labelling
well-educated, interested, engaged and “empowered requirements under public law and obligations to pro-
consumers” need to do a lot of in-depth research vide information under private law.
which may not even lead to a successful outcome in
any case. Only in exceptional cases are companies The systematic interweaving of consumer law with
obliged to inform consumers about the sustainability fields of law which apply prior to and subsequent to
aspects of their products on their own initiative. Due to contract conclusion in order to achieve a circular econ-
the global nature of many supply chains and produc- omy is a Herculean task which, to date, no country an-
tion chains, the legal framework conditions are diffi- ywhere in the world has successfully managed to exe-
cult to pin down and understand, and verifying wheth- cute. In the previous legislative period, the European
er they have been complied with is almost impossible. Union dramatically improved consumer contract law.
The numerous voluntary commitments and alliances The EU’s primary objective was the full harmonisation
for voluntary monitoring of supply chains and pro- of consumer law and, in particular, of legislation gov-
duction chains as well as the voluntary provision of erning the sale of consumer goods as well as distance
information and usage instructions by the companies selling. Consumer law established under the Juncker
concerned, at least where the companies verifiably Commission addresses sustainability and the need for
disclose to the appropriate extent which measures sustainable consumption at best rhetorically. As such,
they used to monitor compliance with the relevant the new Commission is faced with the not-so-simple
standards, are essentially to be praised. Due to the task of rewriting the existing and adopted body of leg-
sheer number of different initiatives which have not islation, consisting of a range of different directives and
been synchronised or aligned, it is ultimately very regulations, in order to take account of sustainability
difficult and often impossible for consumers to make aspects. By agreeing to full harmonisation, the Member
sustainable purchasing decisions without undertak- States have delegated their regulatory powers within
ing extensive research of their own. this area to the EU and thus, for now, surrendered their
prerogative to act.
The really pressing issue, from a legal policy point of
view, is the disconnect between consumer contract Nevertheless, Germany is still at liberty to provide
law and the legal rules which apply to the stages pri- fresh impetus itself and play a leading role with-
or to and subsequent to contract conclusion, namely in the EU in developing sustainable consumer law.
the extraction of resources, manufacturing, transpor- The opportunity for Germany to proceed and make its
tation, after-sales service, reprocessing and disposal. own headway is, for example, set out in Article 114(5)
139 The competent authority must be notified of commercial and charitable collections at least three months prior to the collection being made (Section
18 (1) of the Circular Economy Act). The authority may make the collection subject to restrictions, make the collection subject to conditions or prohibit
the collection (Section 18 (5) of the Circular Economy Act).
30 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
of the Treaty on the Functioning of the European Un-
ion (TFEU), which allows Member States to introduce
national provisions based on new scientific evidence
relating to the protection of the environment or the
working environment on grounds of a problem specif-
ic to that Member State arising after the adoption of
the harmonisation measure. Such unilateral action can
also be undertaken in accordance with the EU’s eco-
nomic constitution. Sustainability is mentioned as an
objective, but the EU’s powers are actually limited with
regard to environmental law (Article 191 of the Treaty
on the Functioning of the European Union). This major
solution, i. e. the development of sustainable consum-
er law, will definitely require further detailed scientif-
ic, legal, conceptual and empirical input. The Advisory
Council for Consumer Affairs can and will initiate and
expedite this process.
The following proposals for reforming e-commerce are
therefore just a small piece in the broader sustainable
consumption puzzle. They are designed to make a swift
and short-term improvement to a specific problem by
reducing the number of returns in the interests of both
traders and consumers. Nevertheless, the regulation of
e-commerce exemplifies all the problems which truly
sustainable consumer law must seek to address.
