promises that are not backed up by adequate and concrete guarantees (paragraph no. 2, relating both to confusing commercial practices and to the ones involving the failure of economic operators to comply with codes of conduct to which they have committed themselves, provision to which the one now introduced is homogeneous). In addition to these cases, the deceptiveness of which is to be assessed on a case-by-case basis, there is also an update to the so called “black list” in Annex I of the Directive, which, in the pursuit of greater legal certainty (as stressed by Recital 17 of Directive 2005/29/EC), contains a list of conducts that are deemed per se misleading commercial practices. Upon closer examination, the provisions now expressly inserted in Article 6 of the Unfair Commercial Practices Directive were already implicitly understood as included in the definitions of more general scope contained in the previous text of the same provision: and in fact in Italy, on the basis of the corresponding national norm, namely Art. 21 of the Consumer Code, the Autorità Garante della Concorrenza e del Mercato, an independent Authority also charged in Italy with the administrative repression of these unlawful practices, has repeatedly had occasion to sanction misleading “green” promotional messages 6. Therefore in this respect the new rules seems not to have a truly innovative scope. However, the appropriateness of the explicit inclusion of the new definitions in the Directive results from the data contained in a 2020 study by the European Commission7, expressly referred to in the proposal of the Directive now adopted, which shows that 53.3 percent of the environmental declarations made by companies at the EU level provided vague, misleading or unfounded information on the environmental characteristics of the products offered for sale. Hence the need to expressly mention these behaviors among those sanctioned, so as to ensure greater certainty and harmonization in the 6 The best-known AGCM measure on this topic is certainly that of December 20, 2019, No. 28060 (https:// www.agcm.it/dotcmsCustom/tc/2025/1/getDominoAttach?urlStr=192.168.14.10:8080/C12560D000291394/0/ EA2 DDE5C8438F34EC12584F5005BD4C5/$File/p28060.pdf) regarding the “Eni” case, in which the Authority imposed a penalty of €5 million (i.e., the maximum fine) on the company Eni S.p.A. for the dissemination of misleading advertising messages aimed at promoting the fuel “Eni Diesel+,” which was defined in the advertising communications as a “Green Diesel,” considering that the promotional messages disseminated by Eni, concerning a type of fuel that, by its nature, is a highly polluting product (and which, evidently, cannot be considered “green”) of which they omitted to report the product’s characteristics in a timely and unambiguous manner, presenting them in a comprehensible and scientifically verifiable manner, were likely to mislead consumers, inducing them to attribute to the product qualities - specifically, a positive environmental impact - that the product did not have, given that it, albeit less than other fuels, has a clear negative environmental impact. 7 Environmental claims in the EU: Inventory and reliability assessment Final report, 2020, available at https:// ec.europa.eu/environment/eussd/smgp/pdf/2020_Greenclaims_inventory.zip. 112 CESARE GALLI
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