Greenwashing: the countdown has begun

There is one month to go before Directive (EU) 2024/825, known as the EmpCo Directive against greenwashing, comes into force on 27 September 2026. And yet, many companies continue to act as if that date were still dependent on national transposition.

This is not the case.

Spain has not yet incorporated the legislation into its legal system, and the draft Sustainable Consumption Bill is still going through the legislative process. In fact, the European Commission has already sent a letter of formal notice to Spain, along with eighteen other Member States, for failing to notify the national transposition measures within the deadline.

However, the lack of domestic legislative adaptation does not alter a fundamental reality: there is an application date set by the Directive itself (27 September 2026), which does not depend on whether Spain has transposed it on time; no additional transitional period has been provided for, nor are there any exceptions for products already manufactured or labelled before that date.

In practical terms, this requires a distinction to be made between two levels. On the one hand, Spain remains under an obligation to the European Union from 27 September 2026 onwards, regardless of whether or not it has completed transposition; this exposes the State to the continuation of the infringement proceedings already initiated and, potentially, to claims for financial liability from those who suffer harm as a result of the delay. On the other hand, with regard to businesses, the untransposed Directive cannot, in itself, impose new obligations or serve as an independent basis for imposing sanctions on them, in accordance with established case law of the Court of Justice of the European Union; but there is an immediate risk for businesses, because from that date onwards, the Spanish courts and consumer authorities will be required to interpret the legislation currently in force (the Unfair Competition Act and consumer protection legislation) in accordance with the Directive, without the absence of a transposition law in force serving as an excuse. Added to this is the uncertainty of operating, during the transition period, under a dual framework: the current domestic legislation, interpreted in the light of the Directive, and the draft bill currently under consideration.

A new scrutiny of environmental claims

The Directive aims to strengthen consumer protection against misleading commercial practices relating to sustainability. To this end, it introduces significant restrictions on the use of certain generic environmental claims where these cannot be adequately substantiated.

Terms such as "eco", "green", "sustainable", "environmentally friendly" or "climate-neutral" will be subject to much stricter scrutiny. The same applies to sustainability labels or badges created by companies themselves when they are not backed by recognised and independent certification schemes.

In other words, it will no longer be enough for the message to be commercially appealing or to form part of a brand positioning strategy. It will be necessary to be able to substantiate it in a robust, verifiable and consumer-friendly manner.

Penalties that go beyond reputational damage

Non-compliance may have significant financial consequences.

The Directive provides for penalties of up to 4 per cent of the annual turnover generated in the Member State concerned or, where that figure cannot be determined, up to two million euros. Furthermore, the competent authorities may order other supplementary measures, such as the confiscation of profits obtained through the infringing practice or exclusion from public procurement procedures.

For this reason, the debate should no longer be framed solely in terms of communication, marketing or corporate reputation. This is a matter of regulatory compliance that requires the involvement of the legal, sustainability, marketing and business departments.

Greater clarity from Brussels

The European Commission has been reinforcing this interpretation, whilst not altering the legal framework set out above: last May, it updated a frequently asked questions document to clarify various aspects of the future enforcement regime. This document does not grant the Commission any direct power to impose sanctions on companies – which, where applicable, falls to national consumer authorities and the courts – but it sets out the interpretative criteria by which the regulation is likely to be applied once transposed, and already serves as a reference for the correct interpretation of current law.

Among other issues, it clarified how the concept of the "average consumer" should be interpreted, the relevance of the context in which each environmental claim is made, and the scope of the assessment to be carried out by the national authorities.

One of the most striking aspects is that the analysis is not limited solely to advertising campaigns or product labels. Certain trade names, corporate names or brands that suggest environmental attributes could also come under scrutiny if they create expectations that cannot be adequately justified.

One month to review and correct

At this stage, the key question is no longer when the Spanish regulation will come into force, but whether the organisation is prepared for the effective implementation of the new European framework.

It is therefore advisable to carry out a preventative review of all elements that may incorporate environmental messages: labelling, advertising campaigns, websites, commercial documentation, corporate reports, certifications used and branding strategies.

Experience shows that many regulatory challenges do not stem from expressly false claims, but from messages that are imprecise, generic or insufficiently substantiated.

There is one month left to correct them.

Because, if a problem does eventually arise, it will not be caused by a Spanish law that is still awaiting approval, but by the obligation to interpret the Spanish regulations already in force – and to apply them before the courts and consumer authorities – in the light of a European Directive that will apply from 27 September 2026, regardless of the fate of the Spanish draft bill. And that date is already just around the corner.