Showdown on September 27, 2026, over the EmpCo Directive: The European Commission backs down on existing stock, and Germany follows suit.
With just a few days to go before the EmpCo Directive (Empowering Consumers for the Green Transition) comes into force on 27 September 2026, a legal and political showdown is unfolding. The issue at stake is what will happen to existing stock from 27 September 2026 onwards.
The European Commission has recently updated its FAQs on the EmpCo Directive. Under the original interpretation, companies faced significant risks from 27 September 2026 onwards, even if packaging and labelling were fully compliant with the law at the time of manufacture. This would have resulted in costly relabelling, product recalls or even the destruction of goods.
The new version of the FAQs now signals a much more measured approach. It builds on the ‘Common Understanding’ published by the CPC network back in June and gives national enforcement authorities scope to find proportionate solutions for existing stock. The message is no longer exclusively ‘destruction rather than a grace period’, but is now clearly also: consumer protection must not lead to the unnecessary waste of resources. . When assessing an infringement of the Empco Regulation, national courts may also take into account whether the operators have made reasonable and proportionate efforts to comply with the regulations, whilst giving due consideration to the principles of proportionality, legal certainty and legitimate expectations.
Although the FAQs themselves are not legally binding, they will be of considerable importance for practical enforcement in the Member States.
In parallel, a political solution is also emerging in Germany. As the German transposition of the EmpCo Directive originally did not provide for any genuine transitional arrangements for existing stock, the Bundestag is now set to adopt a special provision in the near future. At the heart of the planned provision is a proportionality test, in which economic burdens and environmental consequences – in particular the destruction of goods already produced – must be weighed against the interests of consumer protection. In this way, Germany would strike a balance of interests that ultimately comes closer to the sustainability principles of the Directive than a purely formal cut-off date solution.
Austria has also responded by introducing a transitional provision. However, the Austrian approach differs significantly from the German solutions currently under discussion. Whilst the national regulation does contain a time-limited transitional arrangement, it largely refrains from explicitly balancing interests on a case-by-case basis. As a result, it ultimately remains a strict transitional period: goods already placed on the market before 27 September 2026 are protected from injunctive relief until 27 September 2029, regardless of whether it would be possible to dispose of them or keep them in circulation with stickers in a simple and resource-efficient manner.
27 September 2026 therefore remains a key deadline of considerable significance. However, the real showdown is likely to begin only after that date: namely, the question of how courts and authorities will apply the new regulations and how they will resolve the conflict between consumer protection, sustainability and proportionality in practice.
For businesses, this does not mean the all-clear, despite the recent relaxations. The EmpCo Directive is set to come into force as planned. Green claims, sustainability labels and environmental product labelling should be reviewed without delay. However, recent developments show that even shortly before the start date, there is still scope for pragmatic solutions and that the European debate on existing stock is far from over.
GEISTWERT will continue to monitor developments at EU, German and Austrian levels and report on the practical application of the new EmpCo rules.
See the GEISTWERT blog posts below:
(New) Unfair Competition Act Prohibitions (Part 1): Advertising with (alleged) sustainability