Green Claim and Green Litigation in Türkiye

I.      Green Claim

1.     Definition

A ‘green claim’ is a claim that a product or service is environmentally friendly or sustainable. Such claims highlight environmental benefits, such as reducing the environmental impact of the product's production process or conserving natural resources. Countries have developed different practices to verify the authenticity of these claims and to prevent consumers from being misled. Inspection mechanisms have also been organised to prevent such false claims.

2.     Control Mechanisms in Türkiye

In Türkiye, the authority to control false and misleading advertisements and to impose sanctions on such advertisements is vested in the Advertising Board, a public body established under the Ministry of Commerce of the Republic of Türkiye. Within the scope of its authority, the Advertising Board has the right to remove anti-competitive advertisements that are false and misleading to consumers and to impose administrative fines on the publishers of such advertisements. The decisions of the Advertising Standards Authority are administrative acts and are subject to administrative law.

In addition, the Competition Authority has the power to initiate investigations ex officio or upon complaint and to impose administrative fines on those who infringe the principles under the Law on Protection of Competition numbered 4054 (“LPC”). In this respect, the Competition Authority may also decide to impose administrative sanctions as a result of its investigations, if the green claim containing falsehoods is likely to harm competition.

In line with sustainable environmental goals, the Ecolabel Regulation (“Ecolabel Regulation”) entered into force in Türkiye in 2018 to promote products or services with reduced environmental impact throughout their life cycle and to establish a voluntary environmental labelling system to provide consumers with accurate and scientifically based information flow. The system established by the Ecolabel Regulation aims to prevent the degradation of ecosystems and to reduce the negative impact of the consumption of natural resources on the environment, human health, climate, and natural life in all processes of the life cycle of products or services, from the use of natural resources and raw materials to the final disposal stage, including phases such as production, use, consumption, and recycling.

The Ministry of Environment, Urbanisation and Climate Change of the Republic of Türkiye (“Ministry of Environment”) is the supervisory authority for issues regulated under the Ecolabel Regulation.

Accordingly, if the Ministry of Environment determines that the products or services bearing the Ecolabel do not comply with the established criteria or that the Ecolabel is not being used in accordance with the provisions of the Ecolabel Regulation, the use of the Ecolabel by the user of the Ecolabel shall be prohibited.

Finally, making a false green claim may also constitute unfair competition, which is regulated by Articles 54 et seq. of the Turkish Commercial Code No. 6102 (“TCC”). The aforementioned articles of TCC provide for both civil and criminal liability for the perpetrators of acts constituting unfair competition. Accordingly, criminal, and civil proceedings may be brought against entities which make green claims whereby such claim constitutes unfair competition.

For completeness, it should be underlined that the actions constituting unfair competition regulated by the TCC differ from the anti-competitive actions regulated by LPC and supervised by the Competition Authority.

II.   Green Litigation

3.     Definition

‘Green litigation’, also known as ‘environmental litigation’, refers to court cases that deal with environmental issues. Such cases deal with issues such as environmental protection, use of natural resources, waste management, and the decisions are often aimed at promoting environmental sustainability. Such cases are usually brought against public authorities but can also involve private parties.

For example, private individuals may be subject to civil actions for damages for false green claims made in the context of ‘greenwashing’. In addition, if the act carried out in the context of greenwashing constitutes unfair competition under TCC, criminal proceedings may also be initiated in accordance with the penal provisions governing unfair competition.

4.     Green Litigation Examples

a.     Green Litigation Examples in Türkiye

Although there are not many and varied examples of green litigation in Türkiye compared to the US and Europe, there are lawsuits against the Republic of Türkiye, especially on the grounds that it has failed to fulfil certain obligations arising from multilateral international agreements to which it is a party.

One of the most notable examples of this is the pending lawsuit filed by the S.S. Gölmarmara and Surroundings Fishing Cooperative against the Ministry of Agriculture and Forestry of the Republic of Türkiye, Manisa Provincial Directorate of Agriculture and Forestry, regarding the cancellation of the payment order issued for the collection of the rental fee in exchange for the permit granted for the fishing activity carried out by the cooperative in Lake Marmara.

Lake Marmara, located in Manisa province was declared a wetland in 2017 and protected under the Wetland Protection Regulation.

In the following years, this lake was allocated to the Gördes Dam to meet the water needs of İzmir Province. As a result, Lake Marmara experienced a loss of resources and a significant loss of its surface area.

Despite the fact that the lake had almost dried up, the cooperative, which was trying to continue its fishing activities in the remaining part of the lake, was asked to pay a rental fee in return for the permission granted for this activity.

The cooperative did not pay this fee, arguing that (i) the lake had come to the point of drying up due to the actions of the public authorities, (ii) many fishing families had had to migrate, (iii) the administration did not follow the right policy in protecting the lake.

As a result, the Ministry of Agriculture and Forestry of the Republic of Türkiye, issued a payment order and notified it to the cooperative, and the cooperative filed a lawsuit before the Administrative Court to cancel the payment order on the above grounds.

The case is still pending, and the decision that will be issued as a result of the case will be an important case law on the assessment of the responsibility of the public authorities for the damage suffered by certain segments of society as a result of its policies that are harmful to the environment.

A similar lawsuit was filed by the Green Artvin Association and others against the Presidency of the Republic of Türkiye seeking the cancellation of licenses for thirty-seven (37) coal-fired thermal power plants. They argued that pandemics like COVID-19 are linked to climate change, with coal operations exacerbating the issue. After receiving no response from the Presidency for sixty (6) days, the association initiated a lawsuit before administrative court. However, the court dismissed the case of the association, and the appeal was also rejected.

Finally, plaintiffs A.S., S.A., and E.N.B., three (3) anonymous plaintiffs, initiated a lawsuit against the Ministry of Environment, challenging Türkiye's updated Nationally Determined Contributions (NDC) submitted to the United Nations Framework Convention on Climate Change (UNFCCC).

The plaintiffs argued that Türkiye's decision to increase greenhouse gas emissions violates human rights, including the right to life and a healthy environment. However, the court dismissed the case, stating that the NDC was a commitment under the Paris Climate Agreement and not subject to administrative annulment.

As can be seen, most of the examples that can be categorised as green litigation in Türkiye are administrative lawsuits against public authorities in relation to environmental policy.

It may be possible for individuals to claim compensation if they have suffered. It is however controversial, whether private persons can claim compensation for environmental damage caused by activities carried out with the authorisation/permit granted by the administration, and for activities causing environmental damage which do not cause direct material damage without the authorisation/permit granted by the administration. Hence, the legal basis for green litigation is not well defined.

b.     Extraterritorial Demands that May Affect Türkiye

Besides the green litigation examples within Türkiye, there are also notable cases abroad that are relevant to Türkiye's interests.

To elaborate, in September 2020, six (6) Portuguese children filed a complaint with the European Court of Human Rights against multiple countries, including Türkiye, for their inadequate efforts to reduce emissions, citing violations of the right to life and family life. The case was dismissed due to failure to exhaust domestic remedies.

In October 2021, the United Nations Committee on the Rights of the Child made significant findings in a case involving young activists alleging violations by Argentina, Brazil, Germany, and Türkiye under the UN Convention on the Rights of the Child for insufficient action on greenhouse gases. Despite being rejected initially, the case set a precedent for holding states accountable for environmental damage beyond their borders under international conventions.

These cases highlight the evolving international landscape of green litigation and how such cases could have legal implications for the states concerned.

III. Conclusion

Although the developments in the field of green litigation and green claim in Türkiye are very recent, the above-mentioned developments show that Türkiye is significantly influenced by the global developments in this regard and that soon environmental disputes could increase considerably.

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