Under the Directive:
- Self-regulation is allowed as an enforcement method and the control exercised by code owners at national or community level to eliminate misleading environmental claims may supplement administrative or judicial action. In the vast number of Member States, codes of conducts and self-regulatory bodies play an important role in the regulation of advertising, including on the environmental aspects and claims made in advertisements.
- National, local and sectoral codes of conduct may regulate the behaviour of traders who undertake to be bound by such codes in relation to environmental claims. Stricter requirements on green claims may then apply to those traders who have committed to such codes.
- Advertising codes of conduct usually contain rules as regards environmental claims, in particular requiring traders to substantiate any factual claims.
- However, under Article 10 of the Directive, recourse to self-regulation "shall never be deemed the equivalent of foregoing a means of judicial or administrative recourse as provided for in Article 11".
Self-regulation cannot therefore be used as a substitute for legal action. It is the Member States' responsibility, under Article 11 of the Directive, to ensure adequate and effective means to combat unfair commercial practices in general and misleading environmental claims in particular.
- Finally, under Article 12 of the Directive, national enforcers and courts must be given the power to require traders to furnish evidence as to the accuracy of the factual claims they make where such a requirement is necessary:
"Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings provided for in article 11:
to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case;
to consider factual claims as inaccurate if the evidence demanded in accordance with (a) is not furnished or is deemed insufficient by the court or administrative authority"