What does EU Law say about Banning Fossil Fuel Advertising?

As the first city worldwide, The Hague decided to adopt a legal ban on advertising for petrol cars, flights and cruise ships (see here and here). This decision underscores how advertising represents a new front in the struggle for the green transition. It is but one example of the general trend in Europe to challenge advertising for ‘climate killers’, in general, and greenwashing of harmful products and services, more specifically. Another example is the European Union’s recent ban on greenwashing, i.e., conveying a false impression or misleading information about the environmental impact of products/services, under the Unfair Commercial Practices Directive (UCPD). With the legality of a ban on fossil fuel advertising already being discussed in an article by Clemens Kaupa and more recently on this blog by Ingo Venzke and Laurens Ankersmit.

This post argues that EU law not only allows for stricter interpretation of what constitutes advertising of products and services that are environmentally harmful but even demands such reading starting from a textual reading of Article 9(1)(c)(IV) of the Audiovisual Media Services Directive (AVMSD). This is especially true for fossil fuel advertising considering what we know about the role of fossil fuels in the climate crisis. The post first sets out the legal framework of the AVMSD. It then introduces the decisions of the Dutch Advertising Code Committee (Reclame Code Commissie) and its Board of Appeal in the case of Reclame Fossielvrij against TUI. After outlining the interpretation of these bodies, the post offers a critique of their reasoning and highlights why this is not an issue concerning the freedom of expression.

Throughout Europe, the aviation sector has been one of the main targets of civil actions against ‘greenwashing’ and in favour of ‘advertising bans’. The recent KLM-case in the Netherlands is a good example of the UCPD being used to challenge advertising by the Dutch airline that made claims on the ‘sustainable future’ of aviation and ‘flying responsibly’ with KLM. Many of KLM’s claims were deemed misleading by the District Court of Amsterdam either because they painted too positive a picture, were vague, or unsubstantiated (4.32, 4.35-4.46, 4.53,4.55).

Actions against greenwashing, however, can only address claims about environmental soundness of a product. So long as no claims around environmental soundness are made, advertisements for fossil-heavy products such as flights fall outside this category of challenges. Does that also make them acceptable though? Recently, the civil society organisation Reclame Fossielvrij (Fossilfree Advertising) challenged advertisements for package holidays offered by the travel company TUI before the Advertising Code Committee, the Dutch self-regulatory body for advertising. They based their challenge on Article 2 of the Dutch Advertising Code which prohibits advertising that is ‘against the law, the truth, good taste and/or good morals’. The law against which TUI allegedly acted is a somewhat forgotten provision of EU law (Article 9(1)(c)(IV) AVMSD) which prohibits advertisements encouraging behaviour grossly prejudicial to the protection of the environment. The claimants directly refer to the Directive because of the (lack of) Dutch implementation of the (relevant provision of the) AVMSD.

The AVMSD and its Dutch implementation

Implementation of the AVMSD, as it is the case for all EU directives, takes place at the national level. Usually, national courts interpret and apply the implementing norms, while the ECJ is the instance ensuring harmonised interpretation. However, the Dutch Advertising Code Committee is a self-regulatory body and does not form part of the national judiciary.

The Netherlands is an interesting example here, as they are the only country that has not adopted the text of Article 9(1)(c) AVMSD in a formal legal act, but instead opted only for self-regulation to implement this provision.

The effects of this form of transposition for judicial review remain to be seen as the Advertising Code Committee does not form part of the national judiciary and likely does not qualify as a court or tribunal within the meaning of Article 267 TFEU. In other words, it is doubtful whether the Advertising Code Committee or the Board of Appeal may refer a preliminary question to the ECJ. However, if they may not do so, this creates a lacuna in the judicial review of the ECJ that is likely to constitute a threat to the autonomy of the EU legal order (see case law on Investor-State-Dispute-Settlement tribunals, which are not qualified to ask preliminary questions, here and here).

The Netherlands is also an interesting example as it is one of the few Member States that have provided guidance on Article 9(1)(c) AVMSD. The explanation to an earlier transposition of this provision in the  Dutch Advertising Code emphasises that the ‘provision aims to enable and encourage responsible use of environmental claims and to refrain from stimulating or setting an example of behaviour that harms the environment without any need to do so’ (emphasis added). The explanation refers as an example for such conduct to the showing of images of environmentally harmful waste being discarded in the wild. Importantly, the explanation states that ‘it is not a question of banning advertising for products that harm the environment to a greater or lesser extent, as this is true of almost all products’ (translation by the authors). The Advertising Code Committee has clearly followed its own interpretation in the Reclame Fossielvrij/TUI case. Interestingly, the Committee’s interpretation of its own rules, and thus the reason for the Committee to reject Reclame Fossielvrij’s complaint, seems to lack any basis in the AVMSD.

The decision of the Advertising Code Committee

On 30 April 2024, the Advertising Code Committee rejected Reclame Fossielvrij’s proposed interpretation that advertising flight holidays would be against the relevant provision of the AVMSD. In a surprising turn of reasoning, the Advertising Code Committee argues that the commercial messaging should be separated from the products and services that are being advertised, since the AVMSD only regulates the former. It argues that ‘the AVMSD sets rules for the content of commercial communications and not the products or services that is advertised. The fact that a flight holiday is in itself harmful to health and/or the environment, which TUI does not dispute, is therefore irrelevant.’ The Committee decides that the mere advertising of the ‘Turkish Riviera’, notwithstanding one can only book a trip there by plane, does not encourage behaviour that is prejudicial to the environment.

According to the Advertising Code Committee, the changing societal perspectives and shifting scientific insights on climate impacts do not alter this interpretation, although it fails to indicate why a dynamic interpretation would not be reasonable. The Advertising Code Committee argued that declaring such advertisements illegal would require a more specific justification (of a public nature) compared to the open norm in the AVSMD (para 7.9).

Appeal decision

Subsequently on 7 August 2024, the Board of Appeal of the Advertising Code Committee upheld the decision in first instance ‘albeit on somewhat different grounds’. It held that, considering the lack of guidance and bans or regulation of specific products, such as is the case for tobacco and alcohol, they do not see a sufficiently strong basis that the European legislature meant to ban advertisements for environmentally harmful practices such as air travel.

The Board of Appeal followed the Committee’s consideration that the emissions are an indirect consequence of the legal commercial practice of offering holiday air travel. It held that, therefore, the advert in question fell outside of the remit of Article 9(1)(c)(IV) AVMSD and that relying on this provision would imply an extension of its scope. Even in a case on greenwashing of a cruise liner, i.e., an even more directly environmental harmful service, the Advertising Code Committee recently rejected the applicability of the AVMSD, arguing that the norms are ‘open and not clearly defined’ and ‘do not provide a basis for restricting an advertiser's freedom to advertise travel services’.

Consequently, both the Dutch Advertising Code Committee and the Board of Appeal argued that it was not for them to determine whether and in what way travel agents may advertise air holidays (Board of Appeal, para 3.2 and 7.8). The Board of Appeal emphasised in this context that offering flight holidays is a legal economic activity (7.8). Finally, the Board of Appeal held that such a ban on advertising for flights would also restrict the freedom of expression by TUI under Article 10(2) ECHR.

Lack of EU guidance on how to interpret the AVMSD

So far, the ECJ has not interpreted Article 9(1)(c)(IV) AVMSD. It remains comparatively obscure what constitutes behaviour that is ‘grossly prejudicial to the protection of the environment’ and, thus, prohibited. The legislative history does not help either with interpretating Article 9(1)(c)(IV) AVMSD. It was first introduced in 1988 under Article 8(e) of the Directive on broadcasting activities without having been part of the European Commission’s original legislative proposal. Member States’ legislatures provided quite different interpretations when implementing the AVMSD without any guidance from the EU institutions. The lack of guidance may be intentional, considering a possible difference in the assessment of whether specific behaviour is ‘promoted’ or ‘prejudicial’ based on longstanding interpretation of consumer protection rules. This is the case in relation to the interpretation of human dignity in the AVMSD. Here, the EU judiciary has refrained from giving more than general criteria (C-314/14 Sanoma Media Finland) and has not evaluated any specific content in its case-law (Case C-36/02 Omega; see Cole & Etteldorf, 2023, p. 124).

The Dutch Advertising Code Committee and the Board of Appeal Misinterpret the AVMSD

Despite the lack of guidance, the interpretation chosen by the Dutch Advertising Code Committee and the Board of Appeal raises various substantive doubts. Starting from a textual interpretation of Article 9(1)(c)(IV) AVMSD, two things can be established: first, the behaviour has to be ‘grossly prejudicial to the protection of the environment’, and second, the behaviour needs to be ‘encouraged’ by the advertisement.

Air travel is grossly prejudicial to the protection of the environment

The first question is hence whether flying can be understood as being grossly prejudicial to the protection of the environment. The UK Advertising Standards Authority gives some guidance, specifically referring to the case of an alleged violation of Article 4.12 of the UK Code of Broadcast Advertising (BCAP), which is the national implementation of Article 9(1)(c)(IV) AVMSD. The UK Advertising Standards Authority held that Article 1.3 BCAP which requires that marketing communications must be prepared with a sense of responsibility to consumers and to society (an equally broadly formulated rule as Article 2 of the Dutch Advertising Code) was violated where ‘[t]he ads presented and condoned the use of vehicles in a manner that disregarded their impact on nature and the environment.’ In this case, driving an SUV across off-road environments and natural ecosystems was considered sufficiently environmentally harmful to constitute a violation of Article 1.3 of the BCAP (and with this, according to the guidance, also Article 4.12 BCAP). Driving an SUV through nature is certainly environmentally problematic, but it pales in comparison to the environmental effects of aviation.

A package trip to Antalya offered by TUI (which are all serviced by airplanes) will, for a family of four, cause nearly 3.7 tonnes of CO₂ (a one way flight causes 460kg CO₂). These emissions from flying are more than the 3.3 tonnes of the average annual emissions caused by the energy use of the average Dutch household. In addition, advertising for flight holidays nearly always features images of natural landscapes, often in locations that are suffering from heatwaves and droughts more than the location where the advertisement is published. Yet, these landscapes are precisely what the climate crisis will destroy by causing more frequent and more intense heatwaves, as well as water shortages. Much like the SUV ravaging natural sites, flying is ravaging the climate.

This fact, however, does not seem to be disputed in the case before the Dutch Advertising Code Committee. It is acknowledged that flying is detrimental to the environment, however, the Committee states that the substance of the commercial communication is somehow separated from the product. This distinction is artificial and spurious. The commercial itself promotes visiting a faraway destination (Turkey) with a vacation provider (TUI) that only offers package tours to that destination including a flight. Because any vacation necessarily requires transportation and all vacation providers only service this area from the Netherlands by air travel, it is impossible to separate the transportation service from the holiday that is presented in the advert.

Advertising air travel encourages such grossly prejudicial/environmentally harmful behaviour

As to the second point, i.e., whether advertising encourages the behaviour in question. Convincing the consumer to buy a particular service or a product is the very point of advertising. Part of it is to make the consumer feel good about their choice. Hence, it is difficult to see how advertising of services and/or products that are (grossly) prejudicial to the (protection of the) environment could be successful without encouraging their purchase/use. Over the past 100 years, advertising has been a key driver of unsustainable consumption patterns. Especially in the growth of aviation, allaying the fears of prospective travellers through the introduction of package holidays that included air travel (see Barr and Shaw). Advertising has served and still serves an important role in the emotions and meanings we attribute to flying and holidaying. We can witness this in the recent rise in guilt-decreasing marketing appeals in advertisements of flight vacation, e.g., ‘stay longer to make the most of it’-slogans. Advertisements for flying encourage ‘(grossly) prejudicial’ behaviour by normalising consumption of these products.

On this reading, there is little reason to think why advertising of fossil-intensive products such as air travel would escape the prohibition stemming from the AVMSD. Considering moreover the goals of EU law in its wider context, leads to the same answer. Our knowledge of the climate impacts of human activities has changed tremendously over the past 35 years, with the extreme climate harms of aviation being undisputed. This becomes apparent in the new trend towards flight-guilt-decreasing marketing appeals. However, flying has also become far more normalised over the same period. This should be reflected in the interpretation of what is (grossly) prejudicial to the protection of the environment within the meaning of Article 9(1)(c)(IV) AVMSD. In our current day and age, we should consider whether advertisements encouraging behaviour that is the single most detrimental consumption activity in terms of its climate effects still has a place in society. It is not very different from our considerations surrounding the prohibition of advertising for tobacco products. One difference is that fossil-based products and services harm not only the consumer’s own health but directly contribute to the climate impacts on the health and wellbeing of everybody. Arguments regarding the lack of causality or that these emissions are only a drop in the ocean have been set aside by judges in numerous national and international climate cases (see prominently, Urgenda, Neubauer, and KlimaSeniorinnen).

In addition, passing the buck to the EU legislature by highlighting that flying is legal is a distracting side comment based on a strawman argument that no one made: (il-)legality is not a criterion in the context of Article 9(1)(c)(IV) AVMSD, considering only legal products can be advertised to begin with and advertising to break the law is likely to constitute a criminal offence in and of itself. Tobacco products are a case in point: they are not illegal, but advertising them nevertheless is.

Is Advertising Harmful Practices Protected under the Freedom of Expression?

The Advertising Code Committee’s and Board of Appeal’s concern that the freedom of expression of TUI could be unduly restricted seems a rather wilful interpretation of the ECtHR’s case law on the freedom of expression in the commercial context.

Freedom of Expression under the ECHR

The ECtHR accepted the right to commercial expression of a natural person on the limited grounds that the matter relates to a public discussion (on animal welfare – Barthold v Germany), in relation to paid political advertising of small political parties (e.g., Animal Defenders International v. UK, 22 April 2013 and TV Vest AS & Rogaland Pensjonistparti v. Norway, 11 December 2008 (GC)), and concerning an obligation to reveal journalistic sources (Goodwin v. UK). However, commercial expression is subject to higher standards of control than other types of expression (Markt Intern Verlag GmbH and Klaus Beermann v. Germany). In the context of advertising of audio-visual services, the ECtHR emphasised that advertising should take responsibility towards society, and pay particular attention to the moral values forming the basis of democracy (Markt Intern Verlag). Since TUI’s advertising of flight holidays was not an expression of a natural person and did not have a political message, the case law of the court gives hardly any reason to assume a particular need to protect this commercial expression of a commercial corporation with the only purpose of selling a harmful service to make more profit. However, even if – for the sake of the argument – we assumed such a need, TUI’s advertising does not meet any standard of responsibility towards society – on the contrary.

The EU protects Freedom of Expression in the AVMSD

In addition, when EU law regulates a particular field it makes choices in these rules on how to balance or reconcile the engaged interests and rights. And, in line with the primacy of EU law, the Dutch authorities are not free to take a different position. The EU legislature explicitly considered fundamental rights, including freedom of expression, when it formulated the specific provisions of the AVMSD. The recitals of the directive refer to the freedom of expression. Thus, it is not for the Dutch Advertising Code Committee to protect freedom of expression beyond and above the balance of rights expressed in the EU rules on this matter. In other words, interpreting Article 9(1)(c)(IV) AVMSD in a way that does not chime with a textual reading of this provision in order to protect the commercial freedom of expression beyond what the EU legislature considered adequate, i.e., the right balance between this right and the protection of the environment, undermines the ‘unity, primacy and effectiveness’ of EU law (C-399/11 Melloni). This does not take away from the interpretational task of national authorities to give effect to this provision.

Dynamic Interpretation of EU law – who is in charge?

The Advertising Code Committee and the Board of Appeal restricted the scope of Article 9(1)(c)(IV) AVMSD to the point of inapplicability, apparently because they do not want to carry out the (judicial) interpretation typically necessary to give meaning to an open-textured norm. Without guidance from the ECJ (no case law) and without the possibility of asking a preliminary question, the Advertising Code Committee and the Board of Appeal have so far been able to restrict the provisions’ application in practice.

The good news is that on merit, both the Dutch Advertising Code Committee and the Board of Appeal were ready to accept that holiday air travel is grossly prejudicial to the environment. They even seem to accept that there are reasons to follow Reclame Fossielvrij’s demands. Only, they interpreted their own powers of interpretation restrictively and pointed at the European legislature to change the text or the explanation of the AVMSD to address flying specifically. However, national (judicial) authorities are not only competent to interpret and apply national law, including law that implements EU law, but also apply EU law directly.

This is particularly relevant in the Dutch context because the Advertising Code Committee has a unique position as the body designated to rule on matters pertaining to the implementation of Article 9(1)(c)(IV) AVMSD in the Netherlands, likely without being able to ask a preliminary question (!). Open norms, as opposed to enumerated concrete examples, are precisely meant to allow the judicial interpreter to apply the law to factual developments. Should increasing scientific insights about the detrimental impact of flying, as well as that climate impacts are worse and safe temperature zones lower than we thought 20 years ago (see instructively, here) not be relevant for judicial interpretation?

Yannick van den Berg is Post-Doctoral Researcher at the University of Amsterdam in the Horizon Europe research project on just transition pathways ‘GreenPaths’ (https://greenpaths.info/)

Christina Eckes is Professor of European Law at the University of Amsterdam and Principal Investigator of the ERC research project ‘Strategic Climate Litigation’s Direct and Indirect Consequences for Democracies’ (https://climatelitigation.uva.nl/).