EU tightens rules for product design and sales: new obligations for manufacturers and sellers

With the publication of the Right to Repair Directive, three pieces of legislation have been adopted at European level within a few months. All of them promote more sustainable product design and longer product life. These are

• the Right to Repair Directive 2024/17991,
• the Ecodesign for Sustainable Products Regulation 2024/1781 (“Ecodesign Regulation”) and
• the Empowering Consumers for the Green Transition Directive 2024/8253 ("Empowering Consumers Directive").

Together, these legal acts form an integral part of the European Green Deal and the ambitious objective of making Europe the first continent to be climate-neutral by 2050.
The three EU legals acts complement each other and together cover the entire life cycle of a product. They entail far-reaching consequences for manufacturers and all players in the distribution chain.

The new Ecodesign Regulation targets product development and manufacturing by setting new requirements for certain products regarding endurance, reusability, reparability and energy and resource efficiency (see also our client alert regarding the Ecodesign Regulation). The Empowering Consumers Directive imposes extensive information obligations on sellers. They serve to enable the buyer to make a sustainable purchasing decision. It also regulates the protection of consumers from being misled by purported green claims (this aspect falls within the scope of unfair commercial practices and is not addressed here. We refer to our client alert of 22nd of February 2024).

In contrast, the Right to Repair Directive  focuses on the after sales phase: It imposes new obligations on economic operators regarding product repairs outside the seller’s warranty. In addition, the directive amends the Sale of Goods Directive encouraging buyers to opt for repair over replacement during the warranty period (see also our client alert regarding the Right to Repair Directive).

In the following, we provide a tabular overview of the objectives, the current status of the legislative process, the products and economic operators concerned and the time frame for application and implementation. Subsequently, we provide a brief overview of the planned obligations for economic operators.

Overview of the three EU legislative acts

Brief overview of the specific legislative acts

Ecodesign Regulation

The Ecodesign Regulation replaces the current Ecodesign Directive. It imposes new and significant-ly extended obligations on businesses. While the previous directive was limited to energy-related products, the scope of the new regulation extends to almost all physical products. This is a significant expansion. Additionally, the regulation introduces new requirements to make products more durable, reliable, reusable, upgradeable, repairable, easier to maintain, refurbish and recycle, and more energy and resource efficient. The regulation itself does not impose requirements in terms of specific product parameters to be met, but merely sets forth the framework for future product-related delegated legal acts by the EU Commission.

Overview of obligations of economic operators

• Obligation to comply with performance requirements which are based on the product parameters listed in Annex I and laid down in the delegated acts (e.g. by minimum or maximum values) (Art. 6)
  
  • Ecodesign requirements will be designed to improve relevant product aspects such as durability, reliability, reusability, upgradability, repairability, possibility of maintenance and refurbishment, energy and resource efficiency, recyclability, etc. (Art. 5 para. 1)
    
  • Ecodesign requirements shall, where relevant, ensure that products do not become prematurely obsolete, for reasons that include design choices by manufacturers, the use of components which are significantly less robust than other components, the impeded disassembly of key components, unavailable repair information or spare parts, software that no longer works once an operating system is updated or software updates that are not provided (Art. 5 para. 2).
    
• Comprehensive information requirements pursuant to Art. 7 (e.g. possibly on the performance of the product in relation to one or more of the product parameters listed in Annex I, including a reparability value, a durability score, a carbon footprint or an environmental footprint); if necessary, by affixing a harmonized label (Art. 16)
  
• Obligation to issue a digital product passport (Art. 9), which – depending on the delegated acts – shall or may among others include a unique product identifier, the Global Trade Identification Number (GTIN), user manuals, EU declarations of conformity (see Annex III) 
  
• Obligation for manufacturers to indicate their name, registered trade name or registered trade mark, their postal address at which, and the electronic means of communication through which, they can be contacted (Art. 27 para. 6)
  
• Obligation of the manufacturer to provide digital instructions for use (Art. 27 para. 7)
  
• Obligation to carry out a conformity assessment procedure and to affix the required CE marking (Art. 39 to 47)
  
• Information obligations towards market surveillance authorities (Art. 27/29/30)
  
• Obligation of actors in supply chains to provide, upon request and free of charge, at manufacturers, notified bodies and competent national authorities with available relevant information related to the products they supply or the services they provide and allow, in the absence of aforementioned information), manufacturers to assess the products they supply or the services they provide and give access to relevant documents or facilities to those manufacturers (Art. 38)

Obligations with regards to consumer products:

• Duty to disclose information on unsold consumer products, including their number and weight, the reasons for the discarding, and the proportion of discarded products delivered to undergo each of the following activities: preparing for reuse, including refurbishment and remanufacturing, recycling, other recovery including energy recovery, and disposal operations in accordance with the waste hierarchy as defined by Art. 4 of Directive 2008/98/EC
  
• Prohibition of the destruction of consumer products listed in Annex VII (Art. 25). The annex is currently limited to apparel, clothing accessories and footwear

Liability/impending sanctions

A major innovation is Article 76 of the Ecodesign Regulation. It provides for direct liability for damage caused to consumers in the event of non-compliance of a product with eco design requirements laid down in the delegated acts. The liability lies with the manufacturer or – in case the manufacturer is not established in the EU – with the importer or the authorised representative of the manufacturer. In case the importer is not established in the EU or there is no authorised representative of the manufacturer, the fulfilment service provider is liable. Furthermore, consumer associations will be able to bring class actions against economic operators on behalf of a large number of consumers. For this reason, the regulation amends the directive on representative actions 2020/1828.

In addition, infringements of the regulation may be subject sanctions, the details of which are to be determined by the Member States (Art. 74).

Outlook

While delegated acts already exist for some product groups, they are in the planning stage for others. The current focus is particularly on energy-intensive products such as commercial washing machines, universal external power supplies and chargers for electric vehicles. Nevertheless, economic operators should carefully monitor future developments with respect to their products. This applies in particular to obligations relating to unsold consumer products.

Right to Repair Directive

The Right to Repair Directive aims to strengthen consumer rights in relation to the repair of certain products. On the one hand, it imposes extensive obligations on economic operators with regard to the repair of products outside the seller’s warranty. On the other hand, the directive amends the Sale of Goods Directive and extends the scope of warranty. The obligations of economic operators (see below) are limited to the product categories listed in Annex II of the directive. These are products for which ecodesign requirements have already been defined at the design and manufacturing stage. The Right to Repair Directive thus builds on the Ecodesign Regulation.

Furthermore, the EU Commission will establish an EU-wide platform that will enable consumers to find suitable repair shops. Correspondingly, repairers shall be able to offer their services via the platform.

Obligations of economic operators

• Introduction of a right to repair for the products listed in Annex II (Art. 5):
  
  • Obligation to repair goods to the extent that repairability requirements are provided for in the legal acts listed in Annex II. The manufacturer may sub-contract repairs to third parties. There is no obligation to repair where repair is impossible (Art. 5 para. 1).
    
  • The repair must be carried out free of charge or at a reasonable price and within a reasonable period of time from the moment the manufacturer has physical possession of the goods, has received the good or has been given access to the good by the consumer (Art. 5 para. 2).
    
  • The obligation applies primarily to the manufacturer, and, secondarily, to the authorised representative, importer or distributor of the product (Art. 5 para. 3).
    
  • Manufacturers that make spare parts and tools available for goods covered by the legal acts listed in Annex II shall offer these spare parts and tools at a reasonable price that does not deter repair.
    
  • Obligation to inform consumers via freely accessible homepages about indicative prices that are charged for the typical repair of goods (Art. 5 para. 5)
    
  • Prohibition on restricting/impeding the repair of goods through contractual clauses, hardware or software techniques, unless justified by legitimate and objective factors. Manufacturers may also not impede the use of spare parts produced with 3D printers by independent repairers (Art. 5 para. 6). The paragraph is without prejudice to Union and national law providing for the protection of intellectual property rights.
    
  • Manufacturers shall not refuse to repair a product for the sole reason that s previous repair has been performed by other repairers or by other persons (Art. 5 para. 7).
    
  • Obligation to provide information on the repair services free of charge in an easily accessible, clear and comprehensible manner throughout the duration of the repair obligation (Art. 6)
    
    
• Amendment of the Sale of Goods Directive/warranty for defective goods
  
  • Extension of the liability period by 12 months (or longer) if a repair has been carried out as a remedy to bring the goods into conformity (Art. 16 no. 2 a), b)); Member States - such as Germany – which only provide a limitation period for the remedies instead of a liability period, must ensure that the limitation period for remedies in the event of repair is at least equivalent to three years – or longer (Art. 16 no. 2 c), b)).
    
  • Obligation of the seller to inform the consumer about the consumer’s right to choose between repair and replacement, as well as about the possible extension of the warranty period (Art. 16 no. 3).
    
    
• Introduction of a European Repair Information Form that repairers can make available to consumers on a voluntary basis (Art. 4)
  
• Establishment of a European online platform for repair to facilitate the search for repairers in the EU (Art. 7)
  
• Member States must take at least one measure to promote repair (Art. 13).

Sanctions

In addition, penalties may be imposed for infringements of national provisions pursuant to Art. 4, 5 and 6 of the directive, the details of which are to be determined by the Member States (Art. 11).

Outlook

At the EU level, manufacturers should carefully monitor the possible inclusion of further product groups in Annex II of the Right to Repair Directive.

At the national level, Germany, for example, is currently drafting a repair act (“Reparaturgesetz”) to ensure the availability of spare parts and repair instructions. This act will require manufacturers to provide free and transparent repair information to consumers and professional repairers. In addition, manufacturers will have to stock spare parts for products for a period of at least ten years and make them available within 14 days at a reasonable price so that the repair is financially viable compared to a new purchase.

Empowering Consumers Directive

The Empowering Consumers Directive imposes extensive information obligations on sellers. They serve to enable the buyer to make a sustainable purchase decision. The Directive provides for the use of a so-called harmonised notice and harmonised label, the details of which are to be determined by implementing acts of the EU Commission (see Art. 2 para. 5).

Among others the following obligations are imposed on the seller:

• Information obligation on the existence of the legal guarantee of conformity for goods and its main elements, including its minimum duration of two years, using the harmonised notice form (Art. 2 para. 2 lit. a).
• Information obligation on the existence and duration of a commercial guarantee of durability using the harmonised label, if the guarantee is provided by the manufacturer at no additional cost covering the entire good and with a duration of more than two years (Art. 2 para. 2 lit. b)
• Information obligation on the repairability score and, if such is not applicable, information about the availability and estimated cost of, and procedure for ordering spare parts, and about repair restrictions (Art. 2 para. 2 lit. c)
• Information obligation on the minimum period during which the producer or the provider provides software updates (Art. 2 para. 2 lit. b)