EmpCo: Special rule planned in Germany for certain existing stock – what companies need to know now

Just days before the new EmpCo rules take effect, an important amendment to the German Act Against Unfair Competition (UWG) is taking shape. A special rule is planned for certain goods that were placed on the market before 27 September 2026. However, the proposed amendment would not introduce a general sell-through or grace period. For companies, the key priorities now are to document, prioritise and prepare for potential disputes.

On 27 September 2026, the new rules implementing the Empowering Consumers Directive (EmpCo) will take effect under the German Act Against Unfair Competition (UWG). From that date, environmental and sustainability communications will have to comply with stricter requirements.

One question is particularly pressing for companies: What happens to goods that are already on the market where the packaging contains environmental or sustainability claims that may no longer comply with the new requirements?

So far, the UWG does not provide for a general transition, grace or sell-through period for such goods. Just days before the deadline, however, an important amendment is now taking shape.

Proposed Section 15b UWG: proportionality test for claims for injunctive relief

According to a draft legislative resolution currently available, a new Section 15b UWG is to be introduced into German law.

Under the proposed provision, claims for injunctive relief based on certain EmpCo infringements relating to goods placed on the market before 27 September 2026 would have to be asserted in good faith and in accordance with the principle of proportionality.

As part of a comprehensive balancing of interests, four factors in particular would have to be taken into account:

1. the seriousness of the infringement; 
2. the efforts made by the company to remedy the infringement; 
3. the costs associated with remedying the infringement; and 
4. the environmental impact associated with remedying the infringement. 

The German Bundestag is expected to vote on the Act to Modernise Design Law on 24 September 2026, in the context of which the amendment to the UWG is, according to the information currently available, expected to be introduced. The proposed new provision has not yet been adopted.

No general sell-through or grace period

For companies, it is important to understand what the proposed rule would not do: based on the wording currently available, it would not introduce a general transition, grace or sell-through period.

Section 15b UWG-E would not automatically make an EmpCo infringement lawful. Instead, the provision is intended to make the enforcement of claims for injunctive relief in relation to certain goods already placed on the market subject to a proportionality test.

In a specific dispute, it could therefore be relevant, for example, whether a contested claim can be corrected by applying stickers or relabelling, what costs this would entail, or whether an immediate stop to distribution would result in the destruction of significant quantities of goods and the associated environmental impact.

Depending on the individual case, this balancing of interests may affect the nature and scope of injunctive relief. How the provision will be applied in practice, however, is likely to become clear only over time and, potentially, through case law.

Key distinction: “placed on the market” does not mean “produced”

One detail of the proposed wording is particularly important.

The special rule would not apply across the board to all goods produced before the deadline. Instead, it expressly refers to goods that were already placed on the market before 27 September 2026.

Companies holding significant quantities of goods or packaging should therefore carefully assess which inventory may fall within the scope of the proposed provision.

In particular, companies should now ensure that they can document when the relevant goods were placed on the market.

What companies should document now

The proposed rule makes documentation even more important. The information companies record today may later prove crucial when assessing whether injunctive relief is proportionate.

Companies should document in particular:

• Which goods are affected? Which products or packaging contain potentially problematic environmental or sustainability claims? 
• When were they placed on the market? Delivery records, inventory management data and other relevant evidence should be secured without delay. 
• What measures have already been taken? For example, changes to future packaging, relabelling, stickers or information provided to retailers and other distribution partners. 
• What further adjustments are possible? And what organisational and economic effort would they require? 
• What costs would arise? For example, from relabelling, product recalls, changes to production or, where applicable, destruction of goods.  
• What would the environmental impact be? This may be particularly relevant where significant quantities of goods or packaging would otherwise have to be destroyed. 

The latter four aspects in particular directly reflect the criteria that, according to the draft currently available, are to be considered as part of the proportionality assessment.

No extension for websites, online shops or social media

The proposed special rule should not be understood as a general extension of the EmpCo implementation deadline.

Based on the wording currently available, Section 15b UWG-E expressly refers to goods placed on the market before the deadline. Other forms of environmental and sustainability communication would not generally benefit from the proposed rule.

Companies should therefore continue to review and, where necessary, adapt websites, online shops, social media communications, digital campaigns and other communications that can be changed at short notice by 27 September.

EmpCo remains a litigation issue

The proposed amendment does not eliminate the risk of legal disputes.

Competitors, associations and qualified entities can take action against unlawful environmental and sustainability communications. The new provision would instead add another question to potential disputes: Is the claim for injunctive relief sought proportionate in the circumstances of the individual case?

In addition to the legal assessment of the claim itself, it may therefore become crucial how well a company has documented its existing inventory, the remedial measures already taken and the associated costs and environmental impact.

Companies should use the remaining days to focus on two areas:

1. Compliance:
Prioritise communications that can still be changed, review claims and secure the necessary supporting evidence.

2. Litigation readiness:
Document affected inventory and when it was placed on the market, assess potential remedial measures and record their economic and environmental impact.

What happens next?

The German Bundestag is expected to vote on the Act to Modernise Design Law on 24 September 2026. It remains to be seen whether the proposed Section 15b UWG will be adopted and, if so, in what final form.

For companies, the message is clear: Monitor developments – but do not wait for them.

The EmpCo deadline remains 27 September 2026. The proposed special rule could provide new arguments in the defence against claims for injunctive relief in relation to certain goods already placed on the market. However, it does not replace the need to review existing claims or to prepare for potential legal disputes.

Prioritise claims. Secure evidence. Document existing stock. Prepare for potential disputes.

EmpCo Compliance & Litigation

SKW Schwarz supports companies in implementing the new EmpCo requirements – from our EmpCo Quick Check and the legal review of environmental and sustainability claims to dealing with packaging and existing stock, as well as defending against cease-and-desist demands, claims for injunctive relief and regulatory fine proceedings.

Find out more about our EmpCo Compliance & Litigation services Click here