The Circular Economy law provided for the application of a penalty on producers using potentially confusing markings or signage for consumers that will at least double their eco-contribution paid to the relevant eco-organization (art. L. 541-10-3, para. 5, C. env.).
In the disputed Order of November 30th, 2020, the French Minister for the Ecological Transition designated as potentially confusing markings and signage, graphic figures representing two or more arrows wound up and inscribed in a circle. The Order aims unequivocally at the Green Dot.
In a decision dated June 30, 2023, the French Conseil d'Etat annulled the Order of November 30th, 2020, as well as Appendix, II, 4° to the Order of December 25th, 2020 – these texts were suspended in summary proceedings since March 15th, 2021 – which subsequently amended the specifications of the eco-organizations to include the doubling of the contribution due, in the event of use of the Green Dot (CE, June 30, 2023, n° 449872, 450134, 450158). The CMS Francis Lefebvre Competition and EU law team assisting the claimants was led by Nathalie Pétrignet (Partner), and Camille Peraudeau (Associate).
Acknowledging that the disputed Order, by targeting graphic figures representing two or more arrows wound up and inscribed in a circle, was indirectly but unequivocally aimed at the Green Dot signage (a sign widely used throughout the EU, even beyond the countries in which it remains mandatory), the Conseil d'Etat concluded that the contested regulatory provisions introduce a requirement, imposed for environmental protection reasons, which relates to the life cycle of the products concerned and is likely to significantly influence their marketing.
However, the Order was not annulled on the grounds that it could undermine free competition within the Union, but on the grounds that it was not notified, prior to its publication, to the European Commission, as any rule of a technical nature must be, within the meaning of Directive (EU) 2015/1535 of September 9th, 2015.
