Andreas Kanakakis, Joint PhD Researcher, VUB – UniLu, Faculty of Law and Criminology

https://frc.research.vub.b

Introduction

On 30 April 2024, the Grand Chamber of the Court of Justice of the EU (CJEU) delivered a landmark ruling in the MNcase (C-670/22)^[1], scrutinising the transfer of evidence related to the EncroChat network. Long anticipated, the decision addressed previous dispute between German Courts over the compatibility of using EncroChat data as evidence in criminal proceedings with fundamental rights. 

EncroChat, a French service provider, offered end-to-end encrypted communication through modified smartphones, facilitating organised crime, primarily drug trafficking. In 2020, with authorisation from the Criminal Court of Lille, a Joint Investigation Team (JIT) comprising the French Gendarmerie Nationale and Dutch experts, hacked EncroChat phones, accessing encrypted data amounting to users in 122 countries, including Germany. The German Federal Criminal Police Office (Bundeskriminalamt) and Frankfurt’s Public Prosecutor’s Office requested the transmission of this data via European Investigation Orders (EIOs) under Directive 2014/41 (EIO Directive)^[2].

This evidence was then used in proceedings against MN, prompting the Regional Court of Berlin (Landgericht Berlin) to question the lawfulness of the EIOs before the CJEU. In its decision, the Court not only clarified the modalities of the issuance and execution of an EIO, underscoring its commitment to ensuring the efficacy of judicial cooperation tools, but also focused on guaranteeing fair trial and defence rights. It ruled that evidence acquired in violation of these rights must be excluded from criminal proceedings, establishing a new approach to evidence admissibility and marking a significant moment for the protection of fundamental rights. 

Setting sail: Resolving doubts surrounding the issuance of an EIO 

The first three questions from the referring court revolved around the interpretation of Article 6 (1) (a) and (b) of the EIO Directive, namely (i) whether, in the event of evidence transmission, the EIO needs to be issued by a judge, (ii) whether the issuance of an EIO is permitted for the transfer of data acquired from the interception of telecommunications, even if there is no individualised suspicion based on reasonable grounds for the commission of serious crimes and no data integrity verification, and (iii) whether the issuance of an EIO is permitted for the transfer of data acquired in the executing State by an investigative measure, which would be unlawful in a similar domestic case of the issuing State. 

Regarding the first question, the CJEU affirmed the view expressed in the academic literature interpreting Article 6 (1) in conjunction with Article 2 (c) of the EIO Directive, thus clarifying that the term ‘issuing authority’ includes any public authority, competent under the law of the issuing State for the transmission of already collected evidence in a similar domestic case.^[3] Validating conclusions of previous cases,^[4] the Court underlined that to the extent that under the law of the issuing State, public prosecutors are competent to order the transmission of evidence already in possession of national authorities, these public prosecutors fall within the term ‘issuing authority’. An authorisation by a judge is, hence, not necessary.^[5]

As for the substantive requirements for the issuance of an EIO, the Court echoed the opinion that any proportionality and necessity assessment emanates from national law and must be performed in concreto by the competent national authorities.^[6] Confronting questions (ii) and (iii) in line with the principle of mutual recognition, it established that issuing authorities cannot subject already conducted measures to their domestic proportionality and necessity standards, nor can they challenge their lawfulness anew. In the present case, the German authorities could only assess the proportionality and necessity of the transmission itself, not the measure used by the French authorities to acquire the evidence. Besides, the possibility of reassessment is guaranteed against both the issuance and the execution of the EIO,^[7]under the ‘separation model’ of legal remedies outlined in Article 14 of the Directive.^[8] Under this framework, challenges to the issuance of an EIO could be brought before the courts of the issuing State, while legal remedies against its recognition and execution are to be sought before the judicial authorities of the executing State. 

Manoeuvering against the waves of Article 31 of EIO Directive

The referring court cast additional doubts on Article 31 of the Directive, with an emphasis on the interpretation of the ‘competent authority’ of the Member State that needs to be notified about the interception of telecommunications taking place in its territory. Having established that the investigative measure in question fell within the scope of Article 31, the Court made clear that it is for each Member State to determine which authority (judicial or not) is designated for that purpose.^[9] Upon notification, this authority carries the burden of examining if such an interception would be authorised in a similar domestic case. If not, it guides the intercepting Member State on the initiation or continuation of the investigative measure and/or on the use of the already collected evidentiary material.

Most importantly, the Court noted that the objective of the Article extends beyond safeguarding the sovereignty of the notified Member State; it also serves to bolster the rights of the person targeted by such a measure. This commitment to fundamental rights, applicable even to measures that do not constitute an EIO in the narrow sense,^[10] highlights the Court’s standards regarding the cross-border collection and use of evidence.^[11]

Dropping a new anchor: Introducing a ‘European’ exclusionary rule 

The Court of Luxembourg further had to address the issue of evidence admissibility, as the referring court asked whether, in accordance with the principle of effectiveness, evidence acquired through the mechanism of an EIO should be excluded from criminal proceedings if it was collected in violation of EU law. In confronting this question, the Court introduced a new approach to evidence admissibility, departing from its traditional unequivocal deference to national procedural laws of the Member States. 

This revolutionary position was not adopted lightly and without due consideration. Firstly, the Court made clear that this question is subsidiarily linked to the previous ones, as compliance with the Court’s conclusions ensures the lawfulness of the EIOs. Secondly, it was reminded that it lies within the national laws of the Member States to determine the rules governing admissibility and evaluation of evidentiary material in criminal proceedings. Following its long-established reasoning,^[12] it underlined that, in light of the principle of procedural autonomy, Member States are entrusted with the competence to establish procedural rules for actions aiming at safeguarding rights deriving from EU law, on condition that they conform with the principles of equivalence and effectiveness.^[13]

However, the Court did not hesitate to take a step further, differentiating itself from the opinion of the Advocate General,^[14] and boldly shaping a novel exclusionary rule. Based on Article 14 (7) of the Directive, it is emphasised that evidence ‘must be excluded’ from the criminal proceedings if the defendant is not in a position to comment effectively on the way it was collected. This obligation imposed on national courts to ‘disregard’ evidence obtained in breach of EU law stems from the duty to safeguard the rights of the defence and the fairness of the proceedings as enshrined in Article 47 of the EU Charter of Fundamental Rights. This premise counterbalances the Court’s flexibility on the issuance and execution of an EIO under national laws, as it renders the defendant’s opportunity to challenge the evidence collected a prerequisite for its admissibility.  

And now, safe and sound? 

The MN ruling underscores a carefully considered fundamental shift towards concrete minimum standards on evidence admissibility. The core of mutual recognition remains unscathed, as the Court puts its faith in the conformity of national laws with EU principles and interprets their particularities broadly, in line with the purpose of the EIO Directive to enhance cross-border cooperation in criminal matters. Yet, MN stands as a tangible proof of the Court’s will to establish a higher level of protection for the defendant, consistent with the general orientation of the Union’s legislation.^[15]

Moreover, it is aptly argued that, by doing so, the Court consciously differentiates itself from the reserved approach adopted by the European Court of Human Rights (ECtHR) with regard to fair trial and defence rights.^[16] The Court does not confine itself to formulating interpretative guidelines or identifying infringements, but autonomously rules the inadmissibility of evidence as a direct consequence of such infringements. 

Nevertheless, and despite the potential impact, one would be naïve to believe that a single ruling is capable of overturning long-standing practices or interfering with such sensitive issues as the admissibility of evidence. The traditional reluctance of the Member States to accept any legislative initiative based on Article 82 of the Treaty on the Functioning of the European Union (TFEU) is reflected in the administration of justice, which, while ostensibly drawing on the lessons taught by the two European Courts, in practice resorts to mechanisms provided for in national law. In any case, the MNruling sets the precedent for a European exclusionary rule and inspires discussions on common evidentiary rules in criminal proceedings. 

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^[1] ECLI:EU:C:2024:372.

^[2] Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters.

^[3] Böse M., ‘Die Europäische Ermittlungsanordnung – Beweistransfer nach neuen Regeln?’ (2014) 4 Zeitschrift für Internationale Strafrechtsdogmatik, 152.

^[4] CJEU, judgement of 27.05.2019, C-508/18 and C-82/19 PPU (Deutsche Staatsanwälte), paras. 42 et seq.; CJEU, judgement of 08.12.2020, C-584/19 (Staatsanwaltschaft Wien), para. 52.  

^[5] Para. 77. 

^[6] Ahlbrecht H., ‘Die Europäische Ermittlungsanordnung – oder EU-Durchsuchung leicht gemacht’ (2013) 2 StV, 114.

^[7] Paras. 104-105. 

^[8] Böse (n 3); Ronsfeld P., Rechtshilfe, Anerkennung und Vertrauen – Die Europäische Ermittlungsanordnung (Duncker & Humboldt 2015) pp. 189-190; Rackow P., ‘Das Anerkennungsprinzip auf dem Prüfstein der Beweisrechtshilfe’ in Ambos K. (ed), Europäisches Strafrecht post-Lissabon (GUP 2011) p. 135.

^[9] Paras.115-119. 

^[10] Leonhardt A., Die Europäische Ermittlungsanordnung in Strafsachen (Springer 2017), p. 89.; Ahlbrecht (n 6).

^[11] Para. 124. 

^[12] CJEU, judgement of 6.10.2020, C-511/18, C-512/18 and C-520/18 (La Quadrature du Net and Others) para. 223. 

^[13] Paras. 127-129. 

^[14] Opinion of Advocate General Ćapeta, points 116-131. 

^[15] As confirmed in recital 18 EIO Directive. 

^[16] Bernardini L., “On encrypted messages and clear verdicts – the EncroChat case before the Court of Justice (Case C-670/22, MN)”, EU Law Live, 21/05/2024, https://eulawlive.com/op-ed-on-encrypted-messages-and-clear-verdicts-the-encrochat-case-before-the-court-of-justice-case-c-670-22-mn-by-lorenzo-bernardini/.

Raquel Cardoso, Assistant Professor of Criminal Law and Procedure at Lusíada University – Porto

Every now and then, certain topics emerge in European legal discourse that gain sudden attention. Currently, one of those topics is treaty reform. While there are larger factors, such as the expansion of the European Union (EU), that have prompted this discussion, the idea of reform is being reconsidered. The multiple thoughts on what should change^[1]encompass a wide range of subjects, but the place of the individual and access to justice, especially in the context of fundamental rights protection within the Area of Freedom, Security and Justice (AFSJ), seem to be overlooked.

One of the most important aspects of the EU is the protection of fundamental rights. This is not a new topic^[2], but it is one that requires continuous evaluation. It is also the legal foundation upon which several mechanisms are allowed to exist, as the equivalent protection of fundamental rights (now guaranteed through the Charter of Fundamental Rights of the EU – CFREU) fosters mutual trust among Member States, which, in turn, is the cornerstone of the AFSJ^[3].

There are also fields of law, such as criminal law, that have almost inevitable implications for individuals’ fundamental rights. Aside from the fact that the protection of fundamental rights can now prevent cooperation between fellow Member States^[4], there is still a flaw that can be spotted at the intersection of these two areas: namely, the direct access to (European) justice by an individual when they claim a violation of their fundamental rights. So how can individuals currently access justice at the EU level in order to argue a violation of their fundamental rights? And is there a need for change in this regard? A practical example will be used with a view to demonstrate the existing flaws.

Consider the European Arrest Warrant (EAW), for instance. A given Member State issues a EAW, and during the execution process, the individual raises concerns about their fundamental rights, posing questions that should be referred to the Court of Justice of the European Union (CJEU). National courts, however, resolve these questions internally and determine that the surrender should proceed. When the procedure is thus concluded, there is currently no (established) legal possibility for the individual to present their arguments or questions to the CJEU, as the Member State did not refer the issues to it. 

The seriousness of this problem varies depending on the Member State and their willingness to engage with the CJEU.^[5]However, the main point remains: in a simplified European surrender mechanism that significantly impacts the individual, with limited grounds for refusal and based on European fundamental principles, the CJEU, which is responsible for interpreting EU law, is solely dependent on the will of Member States’ courts to do so. 

Regarding the preliminary ruling, there is no doubt, according to Art 267 of the Treaty on the Functioning of the EU (TFEU), that only courts can refer questions to the CJEU. However, at least in certain cases, individuals should be able to directly access the CJEU, particularly when they seek to annul a EAW (based on a legality issue), thereby halting its execution. The process of challenging the EAW through an action for annulment (Art 263 TFEU) is somewhat more complex, as the EAW is a measure adopted by one Member State and directed at another. Consequently, at first glance, the person sought cannot be granted standing to challenge the warrant before the CJEU. Nevertheless, there are grounds to believe that the matter is not as straightforward: Art 263 (4) TFEU states that an individual can appeal to the CJEU if the contested act is addressed to them or if it directly and individually affects them. 

However, there is the issue of the requirements outlined in Art 263 (1) and (2). The Plaumann^[6] doctrine can be bypassed in these cases since the act (i.e. the national decision regarding the EAW) is clearly directed at the individual and intends to have an impact on them, allowing for the conclusion that this requirement is automatically fulfilled. Still, there is another issue: for the acts to be brought before the Court, they must be ‘acts of bodies, offices or agencies of the Union’. This would seemingly exclude such proceedings. However, this perspective does not take into account that national courts, when applying EU law, are considered ‘ordinary courts in matters of European Union law’^[7] and, therefore, are part of the EU structure in defending and applying its own law (Art 4 (3) of the Treaty on the European Union), fulfilling this condition as well. 

With regard to the requirement in Art 263 (2) TFEU, which pertains to the ‘infringement of the Treaties or of any rule of law relating to their application’, both the CFREU and the Framework Directive on the EAW are capable of fulfilling it. For these reasons, it is argued that all the necessary conditions for an individual to appeal to the CJEU through Art 263 TFEU in order to challenge the validity of a EAW are met. Consequently, it should be possible to seek the annulment of a EAW before the CJEU. 

There is currently no other alternative,  if what is intended is to submit the EAW to the assessment of the Union’s bodies, which seems to be necessary, taking into account the Advocate General’s Opinion in the Mantello case^[8]. The Opinion emphasises that the EAW cannot be (and is not) solely an internal issue and that it is crucial to consider all the specificities of EU law; if this is so, only the CJEU has the authority to determine whether a Member State’s actions comply with this law.  However, relying solely on the preliminary ruling procedure would not sufficiently address this issue, as there is no actual obligation to use it (even if there is no judicial remedy, national courts can argue that referring the matter to the CJEU is unnecessary based on the acte clair and acte éclairé doctrines).^[9]

Despite these considerations, which require a certain interpretation of the TFEU’s provisions, the conclusion that there are some deficiencies in the effective judicial protection of fundamental rights in the EU is inevitable. The best solution would be to take advantage of the next Treaty reform and either introduce a procedure aimed at assessing violations of fundamental rights^[10] or establish more opportunities for individuals to have direct recourse to the CJEU, bypassing Member States who are unwilling to involve the CJEU in the decision.

This would inevitably require some changes to the Court, given the expected increase in judgments: perhaps a chamber could be established to preliminarily analyse these cases and determine whether they should proceed to the Court, or a section of the CJEU could be formed to rule on matters of fundamental rights^[11]. Be that as it may, such a solution would effectively enhance the protection of individuals, strengthen the EU’s identity as a Union closer to its citizens, and ensure the right to access justice at the European level – something that is currently predominantly left to the discretion of Member States.

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^[1] For a brief analysis, see Gavin Barrett.: ‘Op-Ed: “Reforming the Treaties’, EU Law Live, 15/12/2023, https://eulawlive.com/op-ed-reforming-the-treaties-by-gavin-barrett/.

^[2] Indeed, it can be traced back at least to the famous Solange decisions: Solange I (2BvL 52/71); Solange II (2BvR 197/83).

^[3] Tampere European Council (15-16 October 1999), Presidency Conclusions, <https://www.europarl.europa.eu/summits/tam_en.htm >.

^[4] Since case C-404 and 659/15 PPU, Aranyosi e Căldăraru, ECLI:EU:C:2016:198.

^[5] For instance, Portuguese courts are reluctant to request a preliminary ruling – see Pedro Caeiro, Raquel Cardoso, ‘Country Research Brief [on the application of the FD EAW by Portuguese courts]: Portugal’, < https://stream-eaw.eu/country-reports/ >, p. 9.

^[6] C-25/62, Plaumann, ECLI:EU:C:1963:17.

^[7] CURIA – Presentation – CJEU: https://curia.europa.eu/jcms/jcms/Jo2_7024/en/  

^[8] Conclusions of AG Yves Bot in case C‑261/09, Mantello, ECLI:EU:C:2010:501, paras 91-93.

^[9] Cf. cases C-283/81, CILFIT, ECLI:EU:C:1982:335, and C-28/62, Da Costa en Schaake, ECLI:EU:C:1963:6. The acte clair doctrine refers to legal provisions that require no interpretation due to their clarity, while the acte éclairé doctrine is meant to exempt from the preliminary ruling questions that are similar to those that have already been interpreted by the CJEU.

^[10] Nadĕžda Siskova, ‘Treaty of Lisbon and Charter of Fundamental Rights of the EU. Future Prospects’ (2008) 26 (2 semester) Temas de Integração, p. 18.

^[11] The CJEU has recently submitted a proposal to change the structure of the Court and the preliminary procedure, but none of the proposed changes address the issue of individuals’ access to the CJEU. The proposal aims to transfer jurisdiction over certain matters from the Court of Justice (ECJ) to the General Court (GC) and expand the right to appeal to the ECJ from decisions of the GC – see ‘Amending the Statute of the Court of Justice of the EU. Reform of the preliminary reference procedure and extension of the leave to appeal requirement’, Briefing, EU Legislation in Progress, < https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/754559/EPRS_BRI(2023)754559_EN.pdf >. For a discussion on the preliminary ruling changes, see e.g., Davor Petrić, ‘The Preliminary Ruling Procedure 2.0’, (2023) European Papers 8(1), European Forum, Insight of 19 April 2023.

Esin Kucuk, Lecturer in EU Law, University of Essex

Over the past decade, there has been a remarkable transformation towards the judicialisation of solidarity, characterized by the Court of Justice’s decision-making extending beyond the traditional boundaries of judicial authority. This trend has been propelled by a complex and multifaceted set of influences. For instance, it can be largely attributed to the increased emphasis on solidarity in various EU Treaty provisions [A1] following the Lisbon amendments. This includes provisions such as Article 2 of the TEU, which sets out the fundamental values of the EU and identifies solidarity as a key element of European society, as well as Article 3 TEU, which calls for solidarity among Member States as a goal of the Union. Additionally, the Treaties require both the Member States and the EU to maintain solidarity in a number of specific policy areas. This encompasses Article 80 TFEU concerning asylum, immigration, and border control, Article 122 TFEU in relation to emergencies and crises, Article 194 TFEU on energy matters, and Articles 222 TFEU and 42(7) TEU regarding security policy.

The above EU treaty provisions are undoubtedly significant, yet they do not fully account for the depth and frequency of the judicialisation of solidarity. The period following the Lisbon Treaty saw only a tepid engagement with the principle, despite the Treaty’s clear emphasis on solidarity, which suggests the influence of other, more compelling factors. Important among these has been a succession of crises, which have provided a conducive environment for the judicialisation of solidarity. Judicialisation has been further intensified by the growing body of EU secondary legislation aimed at implementing solidarity in areas particularly affected by crises, such as asylum and energy[A2] [A3] . This legislative growth has been crucial, not only in expanding the legal framework but also in actively influencing the judicial landscape. 

Another significant factor has been the marked increase in the number of claims that are built on solidarity as a ground for judicial review, a recent example being Case C-675/22 Poland v. Council. [A4] [A5]  This pending case concerns the legality of a new Regulation establishing rules concerning voluntary and mandatory demand-reduction targets for gas consumption. The applicant argues that the Regulation infringes, inter alia, the principle of energy solidarity as set out under Article 194 TFEU. The interesting aspect of this case is that both the contested legislation and the request for its annulment are grounded in solidarity.

However, the key element in the development of solidarity as a constitutional principle has been the Court of Justice’s increasing readiness to engage with it. In tracing the evolving normative force of the principle of solidarity within European jurisprudence, in my view, three critical junctures are particularly noteworthy.[A6] [A7] [A8] 

i. Solidarity as a legality standard

In the unfolding narrative of European jurisprudence, the Case T‑883/16 Opal v. Commission (Opal case) stands as a notable landmark, as this was the first case where solidarity served as a legality standard. Here, the General Court engaged in a significant act of judicial review, annulling a Commission decision on the grounds of contravening the principle of energy solidarity, as enshrined in Article 194 TFEU (paras. 79-85). 

It is important to note that the full potential of solidarity as a justiciable principle remains untested. Firstly, the extent to which this principle can serve as a benchmark in the review of legislative acts has yet to be seen. The Opal case opens the door to this possibility, but the depth and breadth of its application as precedent merits clarification in future jurisprudence. Secondly, while the General Court demonstrated a willingness to use the principle of solidarity as a yardstick in the context of energy, it notably restricted its scrutiny to procedural aspects. 

It is also noteworthy that the General Court, subtly yet decisively, shifted the perspective from a collective ‘one for all’ doctrine to an ‘all for one’ perspective. [A9] [A10]  Traditionally, solidarity as a principle of EU law had been primarily employed to underpin EU measures [A11] that required Member States to make concessions for the collective benefit of the Union. The reasoning of the Court in the Opal case, however, marks a departure from this trend, indicating that the EU’s common interest does not always prevail. This implies that even when a measure is in the EU’s general interest, the principle of solidarity might permit the interests of an individual Member State to take priority. This wider approach underpins the Court’s rationale for the annulment, which revolved around a failure to balance properly the individual interests of the applicant state against the broader interests of the European Union (paras. 77, 82). This reorientation in the Court’s approach is not merely a minor adjustment but a significant stride in the judicial development of the principle of solidarity. 

ii. Member State solidarity as a general principle of EU law

Equally significant is the General Court’s reference to solidarity between the Member States as a general principle of EU law (para. 69). Although this general principle has not yet served as the foundation for a legal claim, its potential normative force should not be underestimated. As mentioned earlier, solidarity is extensively codified in the Treaty across various domains. On the other hand, while there is no explicit mention of solidarity at the Treaty level in some areas, such as environmental protection, the [A12] relevance of the principle is undeniably underscored by recently introduced schemes.[A13]  For instance, the European Climate Law, which mandates Member States to achieve climate neutrality, and Directive 2018/410, focusing on emission reductions, both heavily draw on solidarity as the foundational rationale for the obligations they impose. This is despite the absence of an explicit requirement in the Treaty to act in solidarity per se. The general principle of solidarity may be instrumental in underpinning the legal validity of any act that imposes environmental protection obligations, even when such acts face challenges based on the principle of energy solidarity.[A14] 

iii. Solidarity as a fundamental principle of EU law

Perhaps the most crucial advancement in the justiciability of solidarity is its recognition as a fundamental principle [A15] [A16] by the Court of Justice (para. 38). On appeal in Opal, the Court of Justice upheld the General Court’s decision, but referred to solidarity as a fundamental principle. How does this differ from the General Court’s approach? The General Court’s acknowledgment of solidarity among the Member States as a general principle is undoubtedly a key development. However, it appears to deliberately circumvent a more expansive ambit of solidarity. Solidarity, as a fundamental principle, goes beyond mere Member State interactions and encompasses the broader social dimensions of solidarity, which are particularly evident in the context of interactions among EU citizens. The suggestion of the Court that solidarity, as a fundamental principle, underpins the entire EU legal system (para. 41) [A17] reflects its relevance also in social spheres within the Union.

It is important to highlight that this mention of solidarity as a fundamental principle is not an unprecedented move by the Court of Justice, as it has previously acknowledged that solidarity was a fundamental principle in the context of solidarity between different undertakings (para. 59). Additionally, the Court’s application of the concept of solidarity in social contexts, as seen in Case C-184/99 Grzelczyk (para. 44) without clear legislative support, reflects a broader application of this principle. However, the Court has been reluctant on occassion to use solidarity as a key interpretative tool. For instance, in Case C-370/12 Pringle, the Court could have applied solidarity to interpret the ‘no bail-out’ clause in Article 125 TFEU more restrictively, but chose not to. This cautious approach suggests that the principle of solidarity, while maturing, had not yet fully ripened. Telling is AG Kokott’s Opinion (paras.142-143), suggesting a narrow interpretation of Article 125 TFEU without acknowledging the status of solidarity as a principle, and consequent legal obligations attached to it, though clearly recognising its constitutional status and relevance. 

Conclusion

What then differentiates the current legal landscape post-Opal? There is an observable synergy in the advancement of solidarity, discernible in recent legal developments, most notably Next Generation EU. One can perhaps add to this the advances made in the New Pact on Migration and Asylum, in which solidarity plays a central role. Interpreting these developments as a natural consequence of a societal shift towards greater social integration and the formation of a shared common identity requires a mix of imaginative and, perhaps, optimistic thinking.

A more compelling explanation lies in the context in which solidarity is being reaffirmed as a fundamental principle. These instances are embedded within a broader legal framework that concerns the judicialisation of fundamental EU values and principles, particularly the rule of law (C-156/21  Hungary v Parliament and Council). The linkage of solidarity, fundamental principles, and values that are considered the backbone of the EU legal order is a clear manifestation of where the Court situates this principle within the EU legal order (para. 129). When seen from this perspective, the increasing normative force of solidarity may not be entirely surprising. Whether the elevation and broadening of the principle of solidarity heralds a beneficial transformation or ushers in new layers of complexity within the EU legal framework is a matter for future contemplation. However, it unmistakably signifies a pivotal moment in the development of European jurisprudence, positioning solidarity as a key concept in shaping the future of the EU legal order.

Some of the ideas shared in this blog are based on my recent article: ‘Solidarity in the EU: What Is In A Name?’(2023) 6(2) Nordic Journal of European Law, 1-28.

Esin is also currently working on a monograph entitled ‘European Integrated Border Management and Solidarity: The Limits of Protection Responsibility’ which will be published by Hart Publishing.

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Dr Dimitrios Kafteranis and Saba Movahed Nia

https://pureportal.coventry.ac.uk/en/persons/dimitrios-kafteranis

Consumers in the UK and the EU are becoming more attracted to goods and services that make environmental and sustainability claims in a period of increasing environmental awareness. Greenwashing is a dishonest marketing tactic that hides behind some of these outwardly green claims. In this blog, we will briefly examine the legal ramifications of greenwashing, including its definition, current legal concerns in the UK and the EU as well as the reasons why it requires special treatment under consumer protection laws.

The Legal Definition of Greenwashing

The practice of “greenwashing” involves businesses misleading customers about the advantages of their goods or services for the environment. To enhance their brand image and draw in environmentally sensitive customers, these claims frequently exaggerate or outright misrepresent their eco-friendly initiatives. Although greenwashing is commonly used to refer to ‘misleading actions’ the effect of this intentional negligence has a broader damage. however, commonly used in a broader sense to refer to intentional or careless actions. While incorrect or deceptive environmental claims are the primary source of greenwashing, it has expanded to include other aspects of environmental, social and governance (ESG) standards, such as social responsibility and corporate governance procedures.

In order to appropriately address the unique environmental repercussions of greenwashing, regulators and academics have acknowledged the necessity for a defined legal definition.[1] In the EU for example, the European Securities and Markets Authority (ESMA) has highlighted the necessity of defining greenwashing, and has defined it as a practice where sustainability-related statements, declarations, actions, or communications do not clearly and fairly reflect the underlying sustainability profile of an entity, a financial product, or financial services. ^[1]

While this practice may be misleading to consumers, investors, or other market participants[2], sanctioning deceptive ESG claims at the EU level has proven difficult. The main challenges stem from the lack of a standardised legal definition and the use of ambiguous or subjective terminology by businesses to support insufficiently substantiated ESG-related claims. It is, therefore, crucial for EU regulators to provide a complex definition that covers the misleading practices connected to environmental, social, and governance elements if they are to thoroughly improve legal measures against greenwashing.

EU regulators can efficiently detect and counter greenwashing tactics that undermine both consumers’ confidence and more general sustainability efforts by establishing a precise legislative definition. Greater openness and accountability in the marketplace will be promoted by a clearly defined legal framework that will enable enforcement agencies both at the EU and the national level to take the proper legal action against corporations participating in dishonest ESG-related practices. Additionally, a clearer definition will empower customers to make more informed choices and support genuinely responsible companies, accelerating the shift to a more ethical and sustainable corporate environment.

Legislation for Greenwashing in the EU and the UK

The EU has taken significant steps to combat greenwashing. The EU’s Unfair Commercial Practices Directive provides a common framework for member states to protect consumers from deceptive practices, including greenwashing.[3] Furthermore, directives like the Corporate Sustainability Reporting Directive have been established to ensure better, and more comparable reporting on sustainability matters in the corporate world, which will come into effect in 2024. Additionally, the EU also legislates for sustainable investment, by putting out guidelines for financial market participants and financial advisors regarding their transparency with their sustainability profile.[4] Last but not least, the EU has also proposed a new “Green Claims” directive, that specifies the guidelines for the documentation, disclosure, and verification of voluntary environmental claims and environmental labels used by businesses to advertise goods to EU consumers.[5]

In the UK, various laws and regulations aim to address greenwashing and protect consumers. Although the UK has lost the EU architecure surrounding the current legislation, The UK has made an effort to comply with the legislation contributing to the global reach of preventing greenwashing.^[2] The Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Rights Act 2015 serve as seminal legislative frameworks designed to prohibit false or misleading statements, ensuring that environmental claims are accurate and substantiated. Additionally, the Competition and Markets Authority (CMA) and Advertising Standards Authority (ASA) work in tandem to monitor and act against deceptive environmental marketing practices. Recently, the Financial Conduct Authority (FCA) has mentioned an “anti-greenwashing rule to address the transparency regarding the sustainability profile of products and businesses through introducing a set of high standard rules for products”.^[3]

Case Studies

A number of greenwashing cases have occurred, and which demonstrate the potential impact of robust legal action against deceptive marketing practices. For example, the ASA ruling on Tier Operations Ltd in the UK is a general example of green claims as the company was instructed to ensure clear communication of comparative claims, and it was prohibited from using the eco-friendly advertisement from appearing again in its current form .[6] Conversely, it also demonstrates how the current law is only efficient around general misrepresentation claims. For example, even though the current greenwashing claim against KLM over misleading advertisement in the Netherlands has granted court permission to a full hearing and KLM has stopped its ‘Fly Responsibly’ advertisement, KLM has not made any commitments to change their pledge on sustainbility. This illustrates that the existing legal frameworks, at both the domestic and supranational tiers, are somewhat limited in scope. They principally focus on ascertaining the veracity of promotional claims in order to determine whether an advertisement is misleading or not, rather than allowing for the matter to be observed in depth. [7]

Current Issues Surrounding Greenwashing

Notwithstanding the extant legal architecture, the phenomenon of greenwashing continues to present a serious challenge. Recent high-profile cases have exposed businesses that misrepresent their sustainability efforts to consumers who care about the environment. Nevertheless, The intricate characteristics of greenwashing tactics pose important challenges for authorities in successfully identifying and pursuing misleading practices. Upon comprehensive examination of existing EU and UK legislation deployed to address greenwashing, it becomes evident that the law only focuses on safeguarding consumer protection in the context of product purchases and financial investments.

The fundamental danger of greenwashing is that it could influence people to act in an unsustainable way. The customer service provided by a company may have unintentionally harmed the environment if these environmental claims turn out to be inaccurate, which is why greenwashing should be distinguished from a typical instance of deceptive advertising or disclosure. 

Given that greenwashing exerts a more extensive effect on consumer behaviour and the environment than other types of deceptive advertising, it necessitates distinct and targeted legislative treatment. The special complexities and repercussions of greenwashing may not be effectively covered by consumer protection laws intended to combat generic deceptive advertising, as greenwashing causes significant harm to the environment in addition to misleading a consumer in return of their contribution. To properly hold businesses accountable and discourage such dishonest practices, specific legislative measures are required.

Conclusion

It is imperative that legal safeguards, both at the EU and national level, be fortified to effectively combat greenwashing. More stringent regulations and sanctions may serve as a deterrent, enticing businesses to invest in true sustainability as opposed to making false claims. Additionally, educating consumers about greenwashing and equipping them with the knowledge and resources necessary to recognise genuine eco-friendly items will help them make more informed decisions. A multifaceted strategy is needed to combat greenwashing, one that includes not just legal protections for consumer education and ethical business practices but that signifies the environmental harm caused by these unethical commercial practices. Through creating a more robust system towards the prevention of greenwashing, for example through criminalisation, we can minimise acts of greenwashing while building a market that genuinely supports sustainability, and gives consumers the capacity to make informed decisions for a cleaner future. 

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[1] https://www.reuters.com/business/sustainable-business/fund-groups-warn-over-eu-legal-definition-greenwashing-2023-01-16/

[2] ESMA 31 MAY PROGRESS REPORT < https://www.esma.europa.eu/sites/default/files/2023-06/ESMA30-1668416927-2498_Progress_Report_ESMA_response_to_COM_RfI_on_greenwashing_risks.pdf&gt;

[3] Unfair Commercial Practices Directive (No. 2005/29)

[4] Regulation (EU) 2020/852

[5] EU Green claims < https://environment.ec.europa.eu/topics/circular-economy/green-claims_en&gt;

[6] ASA Ruling on tier operations LTD < https://www.asa.org.uk/rulings/tier-operations-ltd-a21-1118832-tier-operations-ltd.html&gt; April 6, 2022

[7] https://www.clientearth.org/latest/press-office/press/landmark-greenwashing-lawsuit-against-klm-airline-granted-court-permission/

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^[1] 31 May 2023, ESMA progress report on greenwashing 

^[2] Environmental Law & Governance Post- Brexit, Client Earth 11 February 2021.

^[3] Sustainability Disclosure Requirements (SDR) and investment labels, Financial Conduct Authority. Consultation Paper CP22/20, October 2022.