The new rule, Section 15b of the German Act against Unfair Competition (UWG), applies exclusively to products placed on the market before the effective date. This provision was added to the Act on the Modernization of Design Law, a completely unrelated legislation, highlighting the urgency of the measure.
The EmpCo Directive and Its Impact
Companies expressed significant concern over the absence of a statutory transition period, as existing product packaging and advertising would need to comply immediately. For old stock, such as already printed packaging, the European Commission’s FAQ published in November 2025 suggested measures like using stickers to cover or correct claims or adding supplementary information at the point of sale. However, industry associations argued that these solutions were impractical and could lead to the destruction of usable products, contradicting the directive’s sustainability goals.
Germany’s Transitional Rule
Section 15b UWG does not provide for a sell-off period, but obliges the competent court to weigh the circumstances of each individual case to prevent the destruction of goods. Companies that proactively adjusted their packaging may feel disadvantaged, but competitors who delayed compliance will still face scrutiny based on their efforts.
In contrast, Austria implemented a different approach with Section 44(16) of its Unfair Competition Act, which excludes civil claims arising from the EmpCo rules for three years, provided the product was placed on the market before the effective date. This exclusion does not require a case-by-case assessment, offering a clearer but potentially more controversial solution. The legality of both Germany’s and Austria’s transitional regimes under EU law remains uncertain and could face scrutiny from the Court of Justice of the European Union.
Implications for Businesses
Our international multidisciplinary team closely monitors such legislative developments and can assist businesses in handling their implications across multiple jurisdictions. For further reference, the explanatory memorandum is available at https://dserver.bundestag.de/btd/21/081/2108158.pdf, and the EU Commission’s most recent FAQ can be accessed at https://commission.europa.eu/document/download/3c257883-bb2a-4dd9-a6dc-501d587bb34f_en?filename=faq-empowerting-consumers-gtd.pdf.
