Update to the Car Energy Consumption Labelling Regulation – Amendment to car labelling requirements adopted

On 2 February 2024, the Bundesrat passed an amendment to Germany’s Passenger Car Energy Consumption Labelling Regulation (Pkw-EnVKV; the “Regulation”) initiated by the Federal Ministry for Economic Affairs and Climate Action. This puts an end to the long wait for the amendment: the revision of the Regulation was long overdue, as based on Regulation (EU) 2017/1151 the fuel consumption and carbon emission figures for new vehicles have had to be determined in accordance with the new WLTP test programme since the end of 2018.

Now this step is finally to be taken in regard to fuel consumption and CO₂ labelling requirements for passenger cars. It is now compulsory to state the WLTP figures. To make it easier for consumers to understand, the WLTP test phases known as “low/medium/high/maximum” are translated into “city centre/suburban/country road/motorway” in the Regulation. In addition, the electric range of electric or hybrid vehicles must now also be shown on all documents. The previous carbon efficiency classes, on the other hand, will be abolished and replaced by “carbon classes”; the combined carbon emissions are simply assigned to a class from A to G (without any calculation required).

The Regulation not only introduces revised versions of the necessary documents at the point of sale, but also innovations for the advertising of vehicles. A number of clarifications from case law have been incorporated into the Regulation: for example, it is expressly stated that all online advertising, including social media and video apps, also falls within the scope of the Regulation. In addition, online distance selling must now include all information previously required only for bricks-and-mortar sales. To avoid errors, however, a template proposed by the Regulation can be used.

In addition, certain further practical simplifications are planned: for example, the requirements for print advertising are largely harmonised with those for online advertising; in particular, print advertising is now only required to state the combined consumption and emission figures. In addition, as far as online advertising is concerned, the visibility of the information is irrelevant if the information is “partially or fully invisible purely due to the technical presentation of the advertising platform and without any further action by the manufacturer or retailer”. This wording is likely to lead to considerable difficulties in interpretation. The explanatory memorandum to the draft regulation suggests, for example, that this is intended to cover the classic Facebook-type cases in which the necessary information can only be seen by clicking on “show more”.

While the draft also still specified that the compulsory information be accessible via a clearly identifiable link, this simplification has been removed and thus the previous strict requirements for the visibility of consumption and emissions information remain in place.

It is also worth mentioning that a definition of a “new” car has been introduced – a term that has repeatedly led to difficulties in practice: a car is only to be considered new if it is type-approved and was first registered for use on public roads no more than eight months ago or has mileage of 1,000km or less.

Finally, the new draft provides for a right to information for market surveillance authorities. This allows the authorities to request all variants or versions of a model and (in particular) their consumption and emission figures from the manufacturers. This is intended to make it easier for market surveillance authorities to fulfil their surveillance obligations.

The amendments to the Regulation will come into force one day after publication in the Federal Law Gazette; publication is expected within the next few days. Transitional periods of three or six months are stipulated for the changeover to the new requirements, during which documents or adverts based on the old legal situation will (still) be considered admissible.

These fairly brief transition periods will pose challenges to car manufacturers, dealers and advertisers in view of considerable (new) interpretation issues. Given the known risks of unlawful information, the companies concerned would be well advised to comply with the new requirements promptly and comprehensively.