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10 J. Eur. Consumer & Mkt. L. 21 (2021)
Smoke Gets in Your Eyes: Misleading Fossil Fuel Advertisement in the Climate Crisis

handle is hein.kluwer/jeucml0010 and id is 25 raw text is: Kaupa, Misleading Fossil Fuel Advertisement - Comment & Analysis - Secondly, and more importantly, although the single national courts indeed apply their proper national legal principles in order to solve upcoming cases arising from the platform economy, a fragmentation of the different national legal sys- tems cannot be held. Instead, they meet the same or at least a quite similar legal conclusion with respect to the changing economic and organisational models, so that a different legal development in different European countries is not to be apprehended. In fact, they communicate with one another indirectly, e. g., by publishing the Uber-case of the French Court of Cassation not only in French but also in English and Spanish. Nevertheless, as long as a comprehensive legal fra- mework shaped according to the nature of the legal issues arising from the platform economy is missing, there is a certain legal insecurity inherent, which is only gradually re- solved by the highest national court decisions. In order to coordinate and establish a coherent European regulation, which is on its way,98 it might be of interest to take into account the gist of such judicial decisions to clarify the legal issues on a European level. Admittedly, the nature of the legal relationship between the platform and its parties can be examined by applying the general rules of contract law. Also, the structure of a relationship in which a party transfers its tasks to a subordinate traditionally characterizes a legal rela- tionship between a company and a self-employed. Neverthe- less, the factual outsource of the main services to a large pool of external workers, whereas the company controls its work- ers to a significant extent through unilaterally elaborated terms and conditions somehow does not fully fit into this area. Instead, this constellation is located in the grey area between self-employment and dependent workers and cannot be allocated to either of them entirely. Regarding the ongoing debate in the EU, Advocate-General Szpunar, in fact, briefly touched upon this approach without ultimately solving the question because of its irrelevance to the case he was dealing with.99 Admittedly, he conceded that it is undoubtedly possi- ble to exert a service through an independent driver who acts on the behalf of the service provider as a subcontractor. At the same time, however, he did not exclude the classification of a driver as an employee of Uber. The most recent draft of the European Commission (Digital Service Act) concerning online platforms states that the regulation does not apply to services intermediated by providers of intermediary services, such as transport service.oo By way of explicitly using the words 'integral part of another service' the draft makes a perfectly clear reference to the CJEU's ruling on Uber.ioi For the time being, the classification of those services, thus, re- mains unresolved on European level. However, given the present national rulings, a tendency towards the classification of an employment relationship from the perspective of the CJEU can be drawn. Lastly, for English law, which is the focus of this article, it can be said that the research and subsequent presentation of the system has lead to a surprising result in two aspects. For one - contrary to the initial suggestion of the political debate - more legislative changes were made than expected. On the other hand, the common law legal system, which enjoys the reputation of being quite rigid and not exactly adaptable, comes across much more confidently than initially assumed. In fact, in many cases, it proves to be a system provided with ample flexibility. With the help of general principles derived from previous cases it is capable of properly addressing the challenges arising from the digital age. U 98 The Digital Service Act, cf. European Commission, Shaping Europe's digital future COM(2020) 67 final, p. 10. 99 Advocate-General Szpunar in Case C-434/15 Asociacidn Profesional Elite Taxi ECLI:EU:C:2017:981, para. 54. 100 European Commission, 'a Single Market For Digital Services (Digital Services Act)' COM(2020) 825 final, para. 6; 101 CJEU, Case C-434/15 Asociaci6n Profesional Elite Taxi ECLI:EU: C:2017:981, para 40. Comment & Analysis Clemens Kaupa* Smoke Gets in Your Eyes: Misleading Fossil Fuel Advertisement in the Climate Crisis 1. Introduction: fossil fuel advertising and the climate emergency To meet the goal set by the Paris Agreement,i greenhouse gas (GHG) emissions must be reduced by as much as 45 % by 2030 (from 2010 levels).2 This necessitates a massive reduc- tion in the production and use of fossil fuels, which are the main source of GHG emissions.3 Recognizing the urgency, very ambitious GHG emission reduction targets have been enacted: The relevant EU legislation aims at a reduction of at least 40 % by 2030 (from 1990 levels).4 Within the frame- work of the European Green Deal, the Commission has recently proposed raising the target to at least 55 %.s Fossil industry advertising subverts the Paris objective in multiple ways. It stimulates demand for fossil fuels, which triggers continued investment in carbon infrastructure, rather than in renewable energy or energy-efficient solutions.6 This, in turn, stymies the transition in many more economic sec- Clemens Kaupa is assistant professor at the Vrije Universiteit Amster- dam. Email: c.kaupa@vu.nl. 1 Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTC 54113. 2 Intergovernmental Panel on Climate Change (IPCC), 'Global Warming of 1.5°C' (2018) 12. 3 IPCC, 'Climate Change 2014: Synthesis Report' (Assessment Report 5, 2014) 45-46. 4 European Commission (EC), 'A policy framework for climate and en- ergy in the period from 2020 to 2030' (Communication) COM(2014) 15 final 5. 5 EC, 'The European Green Deal' (Communication) COM (2019) 640 final 4; 'Amended proposal for a Regulation of the European Parliament and of the Council on establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (European Climate Law)' (Communication) COM(2020) 563 final. 6 IPCC (n 2) 126 and 128. Issue 112021 - EuCML 21

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