In the proceedings under competition law between two companies certified by TÜV AUSTRIA, the Düsseldorf Regional Court has issued a preliminary ruling in a preliminary injunction procedure.
TÜV AUSTRIA clarifies: The subject of the dispute is merely concrete advertising actions for individual products marked with the OK compost HOME label. In the proceedings, neither the certification system OK compost HOME is attacked, nor does the ruling question the validity of the certificates issued. TÜV AUSTRIA stresses that all OK compost HOME certificates remain valid.
The decision is not final and has already been challenged on appeal.
In the challenged provisional decision, the Court of First Instance prohibited advertising using the OK compost HOME label in the specific form in which it was used for certain product. The court relied primarily on the argument that it had not been sufficiently proven that the specific products advertised with the label were those which had also been tested and certified exemplary by TÜV AUSTRIA. However, these doubts are based solely on an inaccuracy concerning the product measurements tested in the certificate issued. As a further reason, the court relied on an unconventional consumer understanding. Consumers would assume that there is a uniform and binding standard in the form of an EN for home compostability. In the absence of such a binding standard for home compostability, a notice to that effect was required and use of the label without such a notice could be misleading.
TÜV AUSTRIA states: “TÜV AUSTRIA always makes sure that advertising messages or other information do not mislead consumers. Strict compliance with applicable international standards has been an essential value of the two OK compost Home and OK compost INDUSTRIAL labels since their introduction.
In the meantime, the uncertainty in the product certificate was immediately corrected, but for procedural reasons it could no longer be taken into account in the procedure. All com- ponents of TÜV AUSTRIA certification procedures are in full compliance with DIN EN ISO/IEC 17065 “Conformity assessment – Requirements for bodies certifying products, processes and services”. We certify industrial compostability (OK compost INDUSTRIAL) in accordance with the harmonized standard EN 13432. For the certification of home compostability (OK compost HOME) there is currently no unified harmonized individual standard. However, the standard EN 13432 is used by TÜV AUSTRIA, in addition to other relevant standards for determining the compostability of biodegradable plastics, with slight deviations in the test requirements (e.g. the temperature required for the decomposition of the materials on the compost heap) also for testing home compostability. Such an application of objective testing standards is in line with the jurisdiction of the German Federal Court of Justice (Bundesgerichtshof), which the Chamber of the Düsseldorf Regional Court obviously did not follow.
We provide transparent information on the requirements for the respective certificate on our website, which can be accessed by anyone at http://www.tuv-at.be/de/ok-compost/. We certify home compostability according to recognized scientific methods. Our OK compost HOME certification criteria have been used as a reference by several standardization institutes worldwide since 2003. The underlying product certificate validates the result of the very same established OK compost HOME audit procedure.
For TÜV AUSTRIA, it is understandable that the court is not fully aware of the details of a complex technical matter. A possible lack of knowledge, however, which would have been detrimental to the court’s decision, could have been avoided in the specific case if the decisive chamber had agreed to hear Mr. Philippe Dewolfs, an expert from TÜV AUSTRIA who is globally recognized for OK compost certifications and who was present as a witness at the proceedings. TÜV AUSTRIA expressly supports all companies it certifies with all requirements relating to certification.
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