Greenwashing in the aviation industry: what can we learn from district court of Amsterdam’s decision?

On 20 March 2024, the district court of Amsterdam ruled against a Dutch flag carrier in what has been described as the first decision on greenwashing claims in the aviation industry. 

In essence, the district court ruled that fifteen of the nineteen statements made by the airline in relation to three marketing campaigns and/or products were misleading and unlawful, and that the airline thereby acted in violation of the Dutch Unfair Commercial Practices Act (which is the Dutch implementation act of the EU Unfair Commercial Practices Directive 2005/29/EC). This case was initiated by the Dutch Foundation in Furtherance of the Fossil-Free Movement, an NGO with a stated goal of acting against the fossil fuel industry in any way it can (including acting against misleading public statements regarding the environment). This foundation was subsequently allowed to bring its legal action on behalf of its supporters.

The district court issues normative framework to assess whether advertising statement is misleading

In its judgment (see court decision, available only in Dutch), the district court first sets out the applicable legal framework on the basis of which environmental statements should be assessed to determine whether the statements are permitted under the Dutch Unfair Commercial Practices Act. According to the district court, the relevant questions for this assessment entail:

• is the advertisement statement in question factually correct; and
• is the information provided and/or omitted misleading? This partly depends on the context in which the information was provided and/or omitted.

The district court adds that the airline is at liberty to inform the consumer about its ambitions and the way it is committed to achieving its ambitions. The airline is also at liberty to advertise flying with it. 

Furthermore, the use of the term “sustainable” in advertisement statements is not in itself impermissible. It is, however, the responsibility of the user to make clear to the consumer what exactly is meant in this specific case, because such vague environmental terms carry certain social connotations and carry a risk of creating the wrong impression that a certain good or service has no (or less) impact on the environment. The foregoing, however, does not entail that the airline should warn consumers that current aviation is not sustainable. 

The court concludes that it essentially comes down to the fact that the consumer must be informed in an honest manner.

Court rules that fifteen of the advertising statements were misleading and unlawful

The court ruled that of the disputed nineteen advertising statements used by the airline, fifteen were misleading and unlawful. The misleading statements suggested (i) that flying can be or become sustainable, and (ii) that the purchase of or contribution to a “compensation” product actually reduces, absorbs, or compensates for part of the climate effect of flying. 

The court found that a number of the environmental statements were too vague and/or too absolute, lacking concrete information as to how certain environmental measures and/or claims actually contributed to preventing climate change. With respect to Sustainable Aviation Fuels (“SAFs”), the district court held that, despite the fact that SAFs could contribute to reducing the harmful effects of flying, SAFs cannot be presented as a ‘sustainable airplane fuel’. The advertising statements, therefore, painted “too rosy a picture”. According to the district court, the measures taken by the airline to reduce CO2 emissions only marginally reduce the environmental impact of flying and therefore conveyed a misleading perception that flying with the airline is, or is on the path to being, environmentally sustainable.

The court also held that the usage of terms relating to nature-based CO2 compensation plans (such as reforestation projects) was too absolute and far-reaching, as the actual effect of contributions of customers to mitigate the negative impact of the caused CO2-emissions is uncertain. 

The four advertising statements the court considered not to be misleading were statements that were either factually correct, not directed at consumers, and/or did not contain an environmental claim.

Although fifteen of the advertising statements used by the airline were misleading and unlawful, the court did not attach any further legal consequences to their unlawfulness. The court explained that the airline no longer uses any of these advertising statements and that there were no indications that the airline intends to use the fifteen unlawful statements again in the future. Therefore, there is no imminent and concrete threat of unlawful conduct by the airline that would necessitate a prohibition to delete or rectify the statements, nor a prohibition to issue the advertising statements in the future. 

The judgment may be subject to appeal.

Key takeaways 

The judgment is one of the first greenwashing cases in the Netherlands before a civil court but will most likely not be the last. It illustrates the fine line that companies will have to straddle with promoting their products on the one hand, and not running afoul of the various applicable rules and regulations. It is likely that more companies will miss the mark in this difficult assessment. Regulators, NGOs, environmental advocacy groups, competitors, and concerned individuals will continue scrutinizing advertising statements for vague or misleading sustainability claims of their users. This applies not only to those active in the aviation sector, but also beyond.

The present judgment likely establishes a benchmark for airlines looking to promote their environmental and/or sustainable efforts and initiatives within the European Union. The judgment contains a clear signal that companies need to ensure that their sustainability statements are factually correct and should not create a wrong impression. Whether specific statements constitute greenwashing is ultimately heavily dependent on the circumstances and the context of the case. 

In conclusion, the recent judgment signifies a broader shift where litigation concerning greenwashing is assuming a more crucial role within the legal landscape. This trend underscores the growing recognition among corporate boardrooms of the importance of environmental authenticity and the potential risks associated with misleading eco-friendly claims. Greenwashing has emerged as a key concern, particularly within regulated sectors such as finance, and is garnering increased attention from consumer protection agencies. 

For European Union policymakers, the issue of greenwashing is rapidly heating up. On 12 March 2024, the European Parliament set a definitive course by adopting its first reading position on the proposed Directive on the Substantiation and Communication of Environmental Claims, informally dubbed the Green Claims Directive (see our blog post for more details). Additionally, the newly introduced EU Directive on Empowering Consumers for the Green Transition is designed to further sustainable consumer habits by, among other measures, clamping down on unfair commercial practices, including greenwashing, which hinder consumers from making informed and environmentally responsible decisions (for more information on this Directive, see our client alert).