Germany: Advertising in the Automotive Sector - Pkw-EnVKV & Co.

The automotive sector is facing numerous challenges. It is still important to keep an eye on the diverse requirements of analogue and digital advertising.

In particular, when car manufacturers or dealers exhibit, offer for sale or lease, or advertise new passenger cars, they are obliged under certain conditions to provide information on fuel consumption, power consumption, CO₂ emissions, the CO₂ class, and energy costs of new passenger cars in accordance with the German Car Energy Consumption Labelling Ordinance (Pkw-EnVKV).

Although the amendment to the Pkw-EnVKV in spring 2024 has provided clarity on some points, many questions remain unanswered. The following questions and answers on the labelling requirements of the Pkw-EnVKV are intended to provide advertisers with a basic and easy-to-understand overview of the key requirements of the Pkw-EnVKV.

In addition, ubiquitous hot topics such as environmental advertising, pricing requirements, influencer advertising, or advertising with the help of AI, to name but a few, are also of particular importance for the automotive sector.

The following overview focuses on the basic questions relating to the Pkw-EnVKV. An overview of the above-mentioned hot topics in the field of automotive advertising can be found here.

1. What does the Pkw-EnVKV regulate and what is its purpose?

The Pkw-EnVKV serves to implement Directive 1999/94/EC of the European Parliament and of the Council of 13 December 1999 relating to the availability of consumer information on fuel economy and CO₂ emissions in respect of the marketing of new passenger cars.

The rules are intended to ensure that consumers are adequately informed about the fuel consumption, CO₂ emissions, CO₂ class, and also the costs of new passenger cars. The requirements vary depending on the type of advertising. According to recital 5 of Directive 1999/94/EC, this is intended to influence consumers' purchasing decisions in favour of more efficient passenger cars and thus also create an incentive for car manufacturers to develop more efficient passenger cars.

2. When does the Pkw-EnVKV apply?

In principle, the Pkw-EnVKV must always be observed when a manufacturer or dealer exhibits, offers for sale, offers for long-term hire or for leasing, or advertises a new passenger car, see Section 1 (1) Pkw-EnVKV. Depending on the specific form of advertising and type of drive, different obligations come into consideration, see below.

3. When is a "new passenger car" within the meaning of the Pkw-EnVKV?

A passenger car is a motor vehicle of category M1 in accordance with Article 4 of Regulation (EU) 2018/858 ("EU Type-Approval Regulation").

According to Art. 2 No. 1 of Directive 1999/94/EC, this car is "new" if it has not yet been sold for a purpose other than resale or delivery.

According to the Pkw-EnVKV, this is to be assumed particularly if it is type-approved and

• the first registration for use in public road traffic was no more than eight months ago at the time of issue, offering, or advertising, and 
• the vehicle has a mileage of 1,000 kilometres or less.

This provision was intended to implement the case law of the Federal Court of Justice in the amendment and provide clarity. The wording alone shows that this was only partially successful. In principle, it is conceivable that a vehicle has been used intensively for 6 months and has a correspondingly high mileage and yet is still to be regarded as "new" due to its "recent" initial registration. How the relationship between the definition and the criteria is to be assessed is still unclear and a further amendment is expected at this point.

4. Does the Passenger Car EnVKV apply to all common drive types?

Yes, the Pkw-EnVKV applies equally to all common drive types as combustion, hybrid, and electric vehicles. The exact wording of the fuel consumption and emission values must be differentiated accordingly. In addition, there are further obligations for hybrid vehicles. For example, the consumption and emission values for a "discharged battery" must also be stated.

5. In which advertising materials must the consumption and emission values be stated?

The concept of advertising and therefore the term “advertising material” (or “promotional literature”) is to be understood broadly, so that the consumption and emission values must be stated in numerous types of advertising, for example in:

• Print catalogues and advertisements,
• Electronic advertising material such as websites, videos, or adverts/posts in social media, etc.
• Printed material such as technical instructions, brochures, etc.
• Posters

Radio services and so-called audiovisual media are exempt, so that advertising on traditional radio and advertising in cinemas and TV are also exempt from the labelling requirement.

6. When must the consumption and emission values be stated in advertising?

The consumption and emission values should always be stated if a "model" of a new passenger car is mentioned or recognisable in the advertising.

7. What is a "model" within the meaning of the Pkw-EnVKV?

A "model" is the commercial designation of a vehicle type in accordance with Section 2 (1) No. 4 Pkw-EnVKV.

If several variants and versions are to be combined into one model, five additional characteristics are now defined which the variants and versions concerned must at least have in common. In accordance with Section 2 (1) No. 4 Hs. 2 lit. a) - e) Pkw-EnVKV, these characteristics are summarised as the make, the drive engine, the position and number of drive axles, the type of body, and the type of fuel/energy source. These characteristics must be cumulative.

In both cases, type approval must therefore be checked on a case-by-case basis.

8. What information must be included in advertising material?

The combined fuel consumption figures, the combined CO₂ emissions, and the CO₂ class(es) must always be stated in advertising material. As already mentioned, there are special requirements for hybrid vehicles, as the values for a "discharged battery" must also be stated.

The values can either be given for the specific model or, if several versions exist, in a range. In this case, the lowest and highest values or the most favourable and least favourable CO₂ class must be specified.

9. How must the consumption and emission values be stated in advertising?

Annex 4 to Section 5 Pkw-EnVKV contains regulations on the presentation of consumption and emission values in advertising. In particular, they must be "clearly legible and no less emphasised than the main part of the advertising message." In addition, the information must be "easy to understand even on cursory reading."

Due to the constantly evolving advertising options and the diversity that already exists, it would go beyond the scope of this overview to describe every detail here. There are numerous judgements that concretise the requirements depending on the type of advertising. However, it can be summarised as a general guideline that it should not be left to chance that the consumer takes note of the consumption and emission values in the advertising. In this respect, however, it is advisable to examine the advertising material in detail.

10. Are there differences between advertising online or in electronic media and print advertising?

The amendment of the Pkw-EnVKV should - as far as possible and reasonable - create a parallelism between analogue and electronic advertising. Nevertheless, there are still stricter requirements with regard to electronic advertising media, particularly for advertising with motorisation information. In this case, Annex 4 Part II No. 2 Sentence 1 Pkw-EnVKV expressly stipulates that the consumer must be made aware of the consumption and emission values "at the moment when information on the motorisation, for example engine power, displacement or acceleration, is displayed for the first time."

11. Do I still have to include a reference to the DAT guidelines in electronic advertising materials after the amendment?

No, the obligation to refer to the DAT guide has been cancelled with the amendment of the Pkw-EnVKV.

12. What needs to be considered at the stationary point of sale?

There are two main obligations to be fulfilled or notices to be displayed at the point of sale:

1. The notice at the point of sale or the so-called "car label" 

Anyone displaying a new passenger car at a point of sale or offering it for sale, long-term hire, or leasing must ensure that a notice is displayed containing the relevant energy consumption, CO₂ emissions, electric range, energy costs, vehicle tax, CO₂ costs, and CO₂ classes of this vehicle

a) is attached to the exhibited vehicle, or

b) is affixed in the immediate vicinity of the exhibited vehicle in such a way that the notice is clearly visible and can be clearly assigned to this vehicle.

The exact requirements for the presentation of the so-called car label are set out in Annex 1 Pkw-EnVKV. The car label can also be generated on relevant portals. In practice, this obligation is usually fulfilled by a displayer, which is also expressly possible electronically.

1. The notice at the point of sale 

In addition, a notice shall be clearly displayed at the point of sale indicating the relevant energy consumption, CO₂ emissions, electric range, and CO₂ classes of all models of new passenger cars displayed at the point of sale or offered for sale, long-term hire, or lease at or through the point of sale.

The requirements for the notice at the point of sale are set out in detail in Annex 2 of the Pkw-EnVKV.

13. Are there any special features for online sales portals and so-called virtual salesrooms?

The amendment of the Pkw-EnVKV is intended to continue the synchronisation between electronic and stationary points of sale. If a passenger car is offered for sale, leasing, or long-term hire on the Internet, the car label must therefore also be included at the latest after the configuration has been finalised, just as at the physical point of sale. Here too, the illustration in Annex 1 Pkw-EnVKV must be used.

14. What happens if the labelling is missing or incorrect?

Missing or incorrect labelling constitutes a breach of labelling obligations under EU law. The legal consequences of such an offence are therefore essentially to be found in competition law, namely in the UWG. In particular, claims for injunctive relief (Section 8 (1) UWG), damages (Section 9 UWG), profit skimming (Section 10 UWG), and fines (Sections 19 et seq. UWG) are therefore possible. The amount of the fine can be up to €50,000 or up to 4% of annual turnover if a company has achieved annual turnover of more than €1.25 million.

If you have individual or further questions on all advertising topics, especially but not only in the automotive sector, our team of experts will be happy to help you at any time. Whatever your circumstances, we can offer you advice and support.