District Court of Amsterdam declares green claims of KLM misleading and unlawful

On 20 March 2024, the District Court of Amsterdam delivered a judgment in a case between Stichting ter bevordering van de Fossielvrij-beweging (Foundation for the promotion of the Fossil Free movement; Fossielvrij) and Koninklijke Luchtvaart Maatschappij N.V. (KLM). The District Court decided that a number of advertising statements made by KLM were misleading and therefore unlawful.

It found that, in the advertisements, KLM made environmental claims based on vague and general statements about environmental benefits, thereby misleading consumers. It further found that, in other statements, KLM painted an overly optimistic picture of the effects of measures such as Sustainable Aviation Fuels (made from renewable sources) and reforestation. These measures only marginally reduce the negative environmental aspects and therefore wrongly created the impression that flying with KLM is sustainable.

Background of the case

On 6 July 2022, Fossielvrij initiated a class action against KLM, accusing the airline of greenwashing through its marketing efforts.

Fossielvrij challenged 19 of KLM's advertising statements, which it claimed were misleading. It sought a series of judicial interventions from the District Court, including: (i) a declaration that the advertising statements are misleading; (ii) an injunction preventing KLM from making these or similar advertising statements, and (iii) an order to remove the advertising statements from all media; and (iv) an order to rectify the advertising statements.

Fossielvrij’s claims were based on the Unfair Commercial Practices Act (Wet Oneerlijke Handelspraktijken).

Assessing whether claims amounted to greenwashing

The District Court first determined whether the statements were factually accurate. Then it went on to consider whether any information provided and/or omitted was misleading. This assessment depends heavily on the context in which the information is provided and/or omitted.

The majority of the advertising statements were part of KLM's Fly Responsible campaign, which suggested that flying could be sustainable, and included statements like:

• "Join us creating a more sustainable future"
• "With Fly Responsibly, KLM takes the lead in achieving a more sustainable future for aviation. We recognize the urgent need to limit global warming. Therefore, we have committed ourselves to the goals of the Paris Climate Agreement. However, we can only succeed if we all work together. So, join us today for a more sustainable future." (Original text in Dutch.)
• "First passenger flight using sustainable synthetic kerosene. […] This first flight is a significant milestone in the development of sustainable synthetic kerosene as a viable alternative to fossil fuels. Additionally, it is a major step towards a sustainable future for the aviation industry." (Original text in Dutch.)
• "Smaller CO2 footprint, more forests. For ten years now, we have been offering you a simple service that allows you to offset your personal contribution to the CO2 emissions of your flight. With our CO2ZERO service, you can reduce the environmental impact of your flight (…)." (Original text in Dutch.)

The District Court found that most of these statements were misleading due to vague and general statements regarding environmental benefits (such as "more sustainable"), without detailing how KLM intended to achieve these benefits.

It also criticised the term "CO2ZERO" for suggesting that customers could completely neutralise their CO2 emissions. This claim was deemed misleading by the District Court, as it overstated the actual impact of customers' contributions towards achieving zero CO2 emissions. The court considered this term too absolute and far-reaching. With statements such as "CO2ZERO Reduce your impact" (original text in Dutch), an incorrect direct link could be suggested between a customer's contribution and the impact of their flight on the environment.

Another part of the advertising statements were part of the KLM Real Deal Days marketing campaign and contained statements like: "The Real Deal Days revolve around travelling for moments that truly matter. Because when we travel more consciously, all moments become even more beautiful. KLM is fully committed to sustainable fuel and we invite you to join us in this effort. If you choose this option during the Real Deal Days, KLM will double the amount with the Sustainable Fuel Bonus." (Original text in Dutch.) The District Court ruled that even though KLM is free to express its ambitions and advertise flying, the statements were misleading in several respects.

The term "sustainable fuel", frequently used in the statements, was too absolute and KLM also painted an overly optimistic picture of the effects of measures such as Sustainable Aviation Fuels, according to the District Court. Although certain parts of these statements were accurate and informative, the District Court concluded that, considering the entire context, the statements were still misleading.

Non-misleading claims

The District Court identified certain KLM statements as non-misleading, emphasising collective action towards sustainability, such as: “Together, we can make a bigger difference. Only by working together can we truly make a difference. All stakeholders in the aviation industry, all airlines, all manufacturers – the entire business community. Together, we can promote the production of sustainable aviation fuel, accelerate the renewal of our fleet, and achieve more, faster, and better. That's why we have launched this initiative calling on everyone to fly responsibly. We kindly invite you to join us in making aviation more sustainable.” (Original text in Dutch.) The District Court recognised these statements as a general call to action, rather than a specific, misleading, claim.

Outcome

In the end, the District Court ruled that 15 out of 19 statements that were made by KLM and were part of these proceedings were misleading.

However, as the statements are no longer used by KLM nor will they be used in future, Fossielvrij's claims to prohibit and remove the statements were dismissed. The claim for rectification was also dismissed as, among other things, Fossielvrij did not substantiate that consumers are currently still making decisions based on the misleading statements.

Osborne Clarke comment

This case was the first Dutch greenwashing class action, brought by a foundation that seeks to promote a fossil-free world and, as part of that, fair and lawful marketing campaigns of businesses. Legislation and litigation on greenwashing claims is developing quickly: for example, the Empowering Consumers Directive by which the European Parliament adopted stricter requirements for environmental and sustainability-related advertising (please see our Insight for more information). This is also an important topic for the Dutch Consumer and Markets Authority, which has provided guidance on sustainability claims.

Taking into consideration the approach of not only the European Union but also the sector focus of the Dutch Consumer and Markets Authority (on sustainability transition and its general scrutiny of greenwashing), we expect more greenwashing litigation and class actions to follow.