On March 2nd, 2022, Greenpeace France, Amis de la Terre, Notre Affaire à Tous (ClientEarth supports the case and will be a third-party intervener) filed a request to obtain an injunction and compensation against TotalEnergies SE (the parent company of the TotalEnergies group) and TotalEnergies Electricité et Gaz France (one of the subsidiaries of the group). The case argues that Total’s flagship advertising campaign accompanying its ‘rebrand’ to TotalEnergies misled French consumers, because (i) Total’s claims to be aiming for ‘net zero’ by 2050 and to becoming a major player in the energy transition are false and (ii) the advertising claims promoting the environmental virtues and transition role of gas and biofuels are misleading.
The action is brought on the basis of Articles L.121-1 and ff. of the French Consumer Code (which implement EU Unfair Commercial Practices Directive), article 1240 of the French Civil Code, and article L. 142-2 of the Environment Code.
The NGOs argue that they have standing to pursue the defendants for unfair commercial practices on the basis of article L. 142-2 of the Environment Code, which sets forth that « the approved organizations referred to in Article L. 141-2 may exercise the rights granted to civil parties in respect of acts directly or indirectly prejudicial to the collective interests that they are intended to defend and constituting an infringement of the legislative provisions relating to the protection of nature and the environment, (...) and having as their object (...) commercial practices and advertising that are misleading or likely to be misleading when such practices or advertising include environmental indications, as well as the texts adopted for their application ».
The NGOs argue that Total's campaign launched on May 29th, 2021 (and still ongoing), aiming to rebrand the company and its activity as environmentally sustainable, has misled and still mislead French consumers. Total’s claims on carbon neutrality by 2050 and energy transition, fossil gas and agrofuels are false. Closer scrutiny of the facts reveals that companies’ behavior is in total opposition to the requirements of the transition to carbon neutrality by 2050. Therefore, this commercial campaign entails a substantial alteration of the economic behavior of the consumer and should be considered as misleading commercial practices within the meaning of articles L.121-2 and L.121-3 of the French Consumer Code. The campaign fulfills all the conditions under articles L. 121-1 ff. of the French Consumer Code (which apply also to environmental claims) because it has a commercial aim and misleads the consumers.
The organizations claim for an injunction to stop the campaign, the publication of the decision, the compensation of the moral damages suffered by the organizations and the repayment of legal fees.
This case was brought under the French national law implementing the European Union Unfair Commercial Practices Directive. Therefore, the outcome of this case will be relevant to other companies in the EU. To the best of our knowledge, this is the first case challenging an oil and gas major's net-zero claims for greenwashing in Europe (following ACCR's net-zero greenwashing case against Santos in Australia).