France

Key takeaways:Distinction between commercial communication and institutional communication, but no impermeability: Claims made in a commercial context are those that are likely to be sanctioned as misleading commercial practices. In this case, the claims made on TotalEnergies' commercial website, where consumers can subscribe to offers, are considered commercial practices. Conversely, communications made on the group's institutional website and on social media, without any direct link to the promotion or sale of products, which focus in particular on the group's change of name and strategy, are considered to be purely informational and thus not subject to the rules on misleading commercial practices. However, in order to interpret the scope and meaning of TotalEnergies' carbon neutrality claims, the court refers directly to the board of directors' report on which the campaign was based, thus using institutional communication to interpret the meaning of commercial communications and assess their misleading nature.Circumstances that may render a claim about a company's carbon neutrality ambition misleading (e.g. ‘carbon neutral by 2050’): Despite the absence of any express reference to the Paris Agreement in TotalEnergies' commercial communications and the fact that this Agreement only sets obligations for States, the court held that carbon neutrality should be understood in the sense given to it by the Agreement, and not in the light of the plan implemented at its level by TotalEnergies, which argued that this was permitted by Directive 2024/825 (known as ‘Empco’), which will soon be applicable. In reaching this conclusion, the court noted that the Paris Agreement was cited in the group's board of directors' report, which served as the basis for the communications, as well as the use of generalising terms (e.g. ‘together with society’). The court therefore criticised TotalEnergies for failing to mention in its commercial communications that its own scenario involved continuing to invest in fossil fuels, which runs counter to the objectives of the Paris Agreement and, in any event, makes it impossible to make any non-nuanced environmental claims. Thus, while it seems possible for a company to state an ambition of carbon neutrality whose definition and terms differ from those set out in the Paris Agreement, that company must, even if it has an implementation plan that complies with the Empco Directive, disclose in its communications any material information that would qualify the scope of its environmental commitments in relation to the overall carbon neutrality objective announced, especially when its communications are based on texts that do not provide for such nuances.

Munich Regional Court relied on BSH v Electrolux to injunct Formycon's aflibercept formulation in 22 countries based on doctrine of equivalents 

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