Section 15b UWG and EmpCo Old Stock: A Transitional Provision That Came Too Late

The new requirements for environmental and sustainability claims have already been discussed by our partner Cathérine Elkemann in an earlier article on our IP Blog.

The problem of existing stock had been apparent for some time. Industry associations repeatedly called for a statutory sell-through period, but the German legislature initially rejected these requests. It was not until 24 September 2026, just three days before the new rules became applicable, that the Bundestag adopted Section 15b of the German Act Against Unfair Competition (UWG) – somewhat surprisingly, as part of legislation primarily concerned with modernising design law. The legislation cleared the Bundesrat on 16 October 2026, but has not yet been promulgated. Section 15b UWG is intended to take effect retroactively from 27 September 2026 and to expire two years later.

Selling Existing Stock: A Question of Proportionality

The new provision does not establish a general sell-through period or grant existing stock any exemption from the new substantive rules. The prohibitions introduced by the EmpCo Directive remain fully applicable. However, where certain EmpCo-related infringements concern goods placed on the market before the relevant date, claims for injunctive and corrective relief are subject to a specific proportionality assessment.

Four factors are particularly relevant: the seriousness of the infringement, the steps already taken by the business to remedy it, the costs of corrective measures and their environmental impact. Other circumstances, including production and packaging cycles, supply-chain constraints and the feasibility of correcting non-compliant claims, may also be taken into account.

Depending on the outcome of this balancing exercise, businesses may be allowed to sell existing stock for a limited period, or the scope of an injunction may be restricted in other ways. In exceptional circumstances, the legislative materials even envisage the complete exclusion of a claim for injunctive relief. Whether such relief is justified, and to what extent, will always depend on the particular circumstances of the case.

On the interpretation advanced here, goods that remain in the manufacturer's own warehouse are not covered by Section 15b UWG. The general principles governing the granting of a judicial sell-through period under Section 242 of the German Civil Code (BGB) may nevertheless remain relevant.

Greater Proportionality, but Little Legal Certainty

Taking account of the economic and environmental consequences of enforcement is undoubtedly sensible. Yet the new provision does not provide businesses with the legal certainty they had hoped for. Whether existing stock may continue to be sold, and under what conditions, remains a matter of individual assessment. Section 15b UWG does not eliminate legal uncertainty. It merely provides greater clarity as to the factors on which the outcome will depend.

There is a further, more fundamental problem. The purpose of a transitional provision is to enable those affected to prepare for an impending change in the law. Section 15b UWG, however, was adopted only after businesses had already made their crucial decisions. Companies that had relabelled packaging, adjusted production processes or withdrawn products from sale could no longer take the new provision into account. A transitional provision introduced at the very end of the transition comes too late to serve its intended purpose.

I examine the scope of Section 15b UWG, the limits imposed by EU law on the proportionality assessment, and the practical implications for both out-of-court and judicial enforcement in greater detail in my recent article published in Wettbewerb in Recht und Praxis (WRP):

Goldmann, “EmpCo-Altbestände nach § 15b UWG – Verhältnismäßigkeit zwischen Abverkauf und effektiver Rechtsdurchsetzung”, WRP 2026, 1349–1360. You can read and download the full article here (in German).

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