The new right to repair and EcoDesign rules in the EU

On the demand side, the proposal for a directive promoting the repair of goods was recently adopted. This proposal adapts the current rules on the legal guarantee to promote the right to repair. The proposed directive aims to promote repair and reuse of defective products, both within and outside the legal guarantee. 

Along with this 'right to repair' goes, on the supply side, the goal of making products (more) repairable. The proposal for a regulation on eco-design for sustainable products sets the framework for product reparability at the production phase. This regulation focuses, in particular, on product design requirements and the availability of spare parts.

This article looks at both sets of new rules. Firstly, the right to repair is discussed. Then, the EcoDesign rules are set out. The product groups of electronics and textiles are specifically addressed in this second chapter. 

The right to repair

Purpose and background

On 22 March 2023, the European Commission published the proposal for a directive on ‘common rules promoting the repair of goods’ (2023/0085 (COD); the “Directive Proposal”). The Directive Proposal amends, among others, the current Directive (EU) 2019/771 on contracts for the sale of goods (implemented in the Netherlands in Title 1 of Book 7). 

In the press release of 22 March 2023, the European Commission indicated that, over the last decade, replacement has often been prioritised over repair whenever products have become defective. Also, insufficient incentives have been given to consumers to repair their goods when the legal guarantee of conformity expires. 

The aim of the European Commission with the Directive Proposal is, therefore, promoting repair as the preferred remedy available for consumers in case of a product that is not in conformity with the purchase agreement (the legal guarantee) and, more in general, if a product becomes defective beyond the legal guarantee. The Directive Proposal also encourages the further development of the repair sector and gives producers and sellers an incentive to develop more sustainable business models.

The Directive Proposal aims to make repair easier and more cost-effective. Repair prolongs the life of products and is therefore desirable from the perspective of sustainable consumption, the European Commission said. To illustrate, electrical and electronic waste, or e-waste, is the fastest growing waste stream in the EU and less than 40% of it is recycled.^[1]

Rules on providing information on repair options are also included in the recent proposal for a directive on 'empowering consumers for the green transition through better protection against unfair practices and better information' (2022/0092 (COD)).

The Directive Proposal is part of the EU Circular Economy Action Plan, the New Consumer Agenda and the European Commission's broader goal of becoming the first climate-neutral continent by 2050.

Repair within the legal guarantee as primary remedy

The Directive Proposal includes obligations for both sellers and producers of consumer goods and introduces a new ‘right to repair' for consumers, both within and beyond the legal guarantee of conformity.

Within the legal guarantee, repair will become the preferred remedy in case of a non-conforming product as long as product repair is less costly compared to replacement. Sellers will be required to offer to repair the product except when this is more expensive than replacement. This also means that after implementation of the new rules, consumers will no longer always have a free choice between repair and replacement, as is currently the case. The new rule will be included in the Sale of Goods Directive ((EU) 2019/771).

In practice, the costs of product repair are often higher than replacement costs. In this case, a specific product can still be replaced. Making products more repairable (pursuant to the EcoDesign requirements that will be discussed below) may change this, making repair the preferred remedy for such products too.

Rights beyond the legal guarantee

To promote the repair of products outside the legal guarantee, a new set of rights and tools will be made available to consumers to make repair an easy and accessible option. These new rules include the requirement for producers (manufacturers) to repair certain defective products outside the legal guarantee upon the consumer's request. Such repair can be offered free of charge (e.g. as part of a commercial guarantee) or at a certain price. It follows from the Directive Proposal that the products that fall under this obligation are the product groups covered by the reparability requirements pursuant to the EcoDesign framework. The Directive Proposal links the ‘right to repair’ to products that should be repairable under the EcoDesign framework, such as washing machines and vacuum cleaners, so that, in practice, the repair obligation can be performed by the producer.  

Producers must actively inform consumers about this right to repair. An exception to the right to repair outside the legal guarantee applies if repair of the relevant product is impossible. The Directive Proposal further clarifies that it is possible for producers to sub-contract these obligations to third parties.

An example in this context is Nintendo's recent commitment to the European network of consumer authorities (CPC) to repair defect Nintendo Switch controllers free of charge, even after the expiry of the legal guarantee. It follows from the press release, the quality of the controllers deteriorated rapidly, rendering them useless for consumers. Replacement of the controllers would lead to unnecessary electronic waste, the authorities said. Nintendo’s commitment to repair the controllers was therefore both in the interest of consumers and the environment, the Dutch Authority Consumers and Markets (ACM) said.

Repairers and repair platforms

The Directive Proposal further introduces the definition of ‘repairer’. A repairer is any natural or legal person who, related to that person’s trade, business, craft or profession, provides a repair service. This includes producers and sellers that provide repair services. As part of the Directive Proposal, a European Repair Information Form will be introduced. This form should include information on, inter alia, the repairer and repair. Consumers should be able to request this form from any repairer before concluding an agreement for the repair of a specific product. According to the European Commission, this will bring transparency to repair conditions and related price and make it easier for consumers to compare repair offers.

Lastly, the Directive Proposal requires the EU Member States to provide for at least one national online matchmaking repair platform to connect consumers with repairers and sellers of refurbished goods in their area. It follows from the Proposal that such platform is proposed by the European Commission to encourage repair and make sure consumers can easily find repairers.

EcoDesign requirements

The regulation in summary

The proposal for a regulation establishing a framework for setting ecodesign requirements for sustainable products (2022/0095 (COD); the “EcoDesign Regulation”) introduces new rules in relation to the reparability of certain products at the production stage. The proposed EcoDesign Regulation addresses improving environmental sustainability of products and sets requirements for the eco-design of certain products. The European Commission has the (delegated) power to set further requirements on, amongst other things, product upgradability, reparability, maintenance and refurbishment for eco-design purposes.

Ecological design

It follows from the proposed Article 2 EcoDesign Regulation that ecodesign means the integration of environmental sustainability considerations into the characteristics of a product and the processes taking place throughout the product’s value chain. In addition, an 'ecodesign requirement' refers to a performance requirement within the meaning of Annex I or an information requirement within the meaning of Article 7 that aims to make a product more ecologically sustainable.

The ecodesign requirements from the proposed EcoDesign Regulation cover 'products' in general, regardless of whether the products are sold to consumers or businesses. The 'supply chain' includes all upstream activities and processes of the product's value chain up to the point where the product reaches the end-user. The proposed EcoDesign Regulation contains some specific regulations for the benefit of consumers, including the regulation on the provision of certain product information (Article 7(2)(b)(ii) of the proposed Regulation) and the rules regarding the product passport (Article 8 of the proposed Regulation).

Repairability

The core of the proposed EcoDesign Regulation with regard to repairability lies in Article 5. Pursuant to paragraph 1 of this article, the European Commission shall establish ecodesign requirements to improve specific product aspects. Such aspects include the repairability, reusability and maintenance and refurbishment of products. These requirements will have to be implemented during the production stage of the relevant products and are, therefore, in particular relevant in relation to product design and the availability of spare parts. 

Annex I lists specific product parameters to be used for setting performance and information requirements for products under the EcoDesign Regulation. In addition to Article 5(1) of the proposed EcoDesign Regulation, sub b of this Annex I sets out the parameters to be used as a basis for improving the ease of repair and maintenance, including: 

• The product characteristics,
• The availability and delivery time of spare parts;
• The compatibility with commonly available spare parts;
• The availability of repair and maintenance instructions;
• The number of materials and components used;
• The number and complexity of processes and tools required;
• The ease of non-destructive disassembly and re-assembly,
• Conditions for access to product data; and
• Conditions for access to or use of required hardware and software needed.

Relevant product groups

It follows from Article 5(2) of the proposed EcoDesign Regulation that ecodesign requirements will be established for specific product groups. The specific product groups have not been identified to date, so it is unclear at this stage which product groups will become subject to the ecodesign requirements. 

Several sectors, including for consumer electronics and textiles, face rules on ecodesign. In the textile sector, the sustainability debate has been ongoing for some time. The Directive Proposal as mentioned above specifically addresses consumer electronics. We set out these two sectors below.

Consumer electronics

It is expected that further ecodesign rules will be adopted for the product groups listed in Annex II of the aforementioned Directive Proposal. The product groups addressed by the Directive Proposal are (household) electronic products that are technically repairable, according to the European Commission, including:

• Domestic washing machines and washer-dryers;
• Household dishwashers; 
• Refrigerating appliances with a direct sales function;
• Refrigerating appliances;
• Electronic displays;
• Welding equipment;
• Vacuum cleaners;
• Servers and data storage products;
• Mobile phones, cordless phones and tablets.

To keep Annex II of the Proposal up to date, the European Commission is authorised to make amendments. This allows, for example, new product groups to be added when new repairability requirements are established. 

Textiles

As indicated, the sustainability debate in the textile sector has been ongoing for quite some time. According to EU research , textile use represents on average the fourth highest negative impact on the environment and climate change and the third highest negative impact on water and land use when viewed from the perspective of the entire product life cycle.^[2] For that reason, the textile industry has in 2020 already been identified by the European Commission as one of the most important value chains for promoting circularity and sustainability.^[3]

Specifically with regard to textiles, the Commission set out its overall plan of action in the 'EU strategy for sustainable and circular textiles' in March 2022.^[4] This plan sets out the broader strategy, which has partly already been acted on and which partly still needs to be developed in the coming years to make the textile industry more sustainable on all fronts. Various topics are addressed, such as green claims and the prevention of microplastics release from clothing, as well as the link to the new EcoDesign Regulation. 

Although many of the new rules under the EcoDesign Regulation still need to be further developed in product-specific implementation legislation from the Commission, the EcoDesign Regulation already includes the first steps to make the textile industry more sustainable. 

For example, Chapter VI of the EcoDesign Regulation creates a new transparency obligation to disclose information on the number of unsold consumer products discarded per year, a practice that is particularly common in the trend-sensitive clothing and footwear industries. The EcoDesign Regulation even lays the groundwork for a possible, future ban on the destruction of unsold products for certain product groups.

In addition, the introduction of a digital product passport will mean that the regulation on the labelling of textile products will also need revision.^[5] It is expected that in future, in addition to fibre composition, for example, other information will also have to be provided during the sale of textile products.^[6]

In addition, the proposed EcoDesign Regulation also touches on aspects such as reuse and the use of recycled fibres. Several Member States have already recently developed national regulations on this issue within the framework of the Extended Producer Responsibility (EPR). In the Netherlands the Decree Extended Producer Responsibility for Textiles (Besluit uitgebreide producentenverantwoordelijkheid textiel) takes effect from 1 July 2023. Later this year, the Commission also expects to come up with a proposal for harmonised EU rules on EPR for textiles.

Next steps

Both proposals discussed above have yet to adopted by the European Parliament and the European Council. From the date of entry into force of the Directive Proposal, there is likely to be an implementation period of two years for the Member States. Unlike the Directive Proposal, the EcoDesign Regulation does not have to be implemented in national legislation, but many concrete regulations and compliance monitoring still have to be worked out in further product-specific implementing legislation by the European Commission and/or national legislators. 

So while it may be some time before the proposals mentioned in this article will enter into force, thinking about the sustainability and repairability of a product can, however, already be relevant. Especially when it comes to products that – regardless of whether they are traded in a B2C or B2B context – are already specifically focused on in light of sustainability, such as many electronic devices for the consumer market and the clothing industry in general. A sustainable (repairable) product design can lead to a higher sustainability score in the context of certification or tenders. It therefore is worth getting up to speed on the upcoming rules now.

[1] 'E-waste in the EU: facts and figures (infographic)', European Parliament 23 December 2020.

[2] EEA (2022) Textiles and the environment: the role of design in Europe's circular economy.

[3] 'A new action plan for a circular economy. For a cleaner and more competitive Europe', COM(2020) 98 final.

[4] COM(2022) 141 final.

[5] Regulation (EU) No 1007/2011 of the European Parliament and of the Council of 27 September 2011 on textile fibre names and related labelling and marking of fibre composition of textile products and repealing Council Directive 73/44/EEC and Directives 96/73/EC and 2008/121/EC of the European Parliament and of the Council (OJ L 272, 18.10.2011, p. 1).

[6] COM(2020) 98 final, para 2.4.