Verbraucherzentrale Baden-Württemberg e.V. v. Commerz Real Fund Management S.à.r.l.

Summary:

On December 2022, the plaintiff filed a claim with the Regional Court of Stuttgart and argued that the advertising statements were misleading after the defendant themselves had massively relativised in other places. The defendant responded that the value was an investment ‘target’ and could therefore be exceeded as well as fallen short of. With regard to the various quantities, an amount that was too low had been stated by mistake. An imputed misleading was therefore not relevant in any case.

Commerz Real Fund Management S.à.r.l. advertised a financial product, ‘klimaVest’, on a website. This fund invested in renewable energies projects and could therefore track concrete amounts of green electricity and avoided CO2 emissions. Furthermore, klimaVest was an Impact Fonds according to European Regulations and was obliged to pursue a positive ecological goal. This resulted in the ‘klimaVest target (set value)’ of at least 3.5 tonnes of CO2 avoidance per EUR 10,100 invested per year. Thus, investors were able to indirectly support the avoidance of future emissions with their investment. On the website, internet users could calculate their personal CO2 footprint. This value was then compared with the desired ‘CO2 offset’ through the investment. In a separate document, information was included that the investment objectives of the fund could not be guaranteed and that they could vary considerably over time. Under the FAQ category it was set out that the impact goal of klimaVest was to achieve a CO2 offset of at least 3.0 tonnes per year for every 10,000 euros of invested capital. The calculation basis for that was the CO2 calculator.

On January 2022, the Regional Court found the advertised claims to be misleading commercial practices and in violation of § 5 para. 1 of the Act against Unfair Competition. It held that the claim of an absolute CO2 reduction of 3.5t or of a CO2 compensation of -3.5t was a statement suitable to mislead the target public, since they understood these statements as set values, which in any case would not be fallen short of, although these were in fact target values which could be significantly undercut. Furthermore, the Court found the differing statements on the targeted CO2 avoidance of 3.5t on one site and 3.5t on another site to be misleading by omission pursuant to §5a para. 2 of the Act against Unfair Competition.

At Issue: Whether advertising on an investment with its positive effect on the ‘personal carbon footprint’ is a misleading commercial practice and/or misleading by omission, when it is done in such a manner that the consumer calculates the ‘CO2 compensation’ dependent on the investment, indicating specific results