The coalition agreement is characterised by the topics of digitalisation, energy transition and climate protection. Accordingly, there is a thematic focus on the handling, risks but also opportunities of resource-conserving production and digital development. The new Federal Government plans to promote technological, digital and sustainable innovations and therefore modernise, de-bureaucratise and digitalise planning and approval procedures. Therefore, a considerable restructuring of the regulatory prerequisites is to be expected, which is already becoming apparent in some areas.
The most important aspects of the coalition agreement in the wide spectrum of product law are presented below.
Digital civil rights and IT security
The coalition intends to introduce a right to encryption, an effective vulnerability management with the aim of closing security gaps, and the obligations to comply with the specifications “security-by-design/default”. Manufacturers of digital products must keep a close eye on these developments because they will face a stricter liability for IT security gaps in their products.
An industrial strategy is being developed that is embedded in a European solution in conjunction with the European Green Deal, which is in particular intended to prevent the so-called carbon leakage through appropriate measures. Suitable instruments, such as Carbon Contracts for Difference (CCfD), will be created to support domestic industry, in particular to close the economic efficiency gap.
With regard to the protection of human rights and the environment in supply chains, the coalition agreement states the following:
“We support an effective EU supply chain law based on the UN Guiding Principles on Business and Human Rights that does not overburden small and medium-sized enterprises (lines 1049, 1050). We support the EU Commission’s proposal on the Deforestation-Free Supply Chain Law (lines 1052, 1053). We will revise the national Business and Human Rights Action Plan in line with the Supply Chain Act ” (lines 4981, 4982).
The law on corporate due diligence in supply chains (Lieferkettensorgfaltspflichtengesetz) will be implemented unchanged and improved where necessary.
SPD, BÜNDNIS 90/DIE GRÜNEN and FDP are working on a national plan for the protection against endocrine disruptors. In addition, the new coalition intends to “better protect our businesses and consumers from imports that do not meet EU standards by working with countries to strengthen enforcement of controls and facilitate product recalls” (lines 1322 to 1325).
This goal is to be achieved by influencing the EU chemicals strategy, specifically through the further development of the REACH Regulation, a national plan for protection against endocrine disruptors, and the strengthening of human biomonitoring through continuous funding. The relevant procedures for preparing the corresponding adaptation of the REACH Regulation, among other things, have already been initiated at the European level. The coalition supports a European ban on deliberately added microplastics in cosmetics and detergents and on liquid polymers.
In the area of circular economy, the coalition is pursuing two paths, in order to reach goals as effective climate and resource protection, for sustainable economic development, creation and preservation of jobs, reducing primary raw material consumption and closed material cycles.
On the one hand, ambitious and uniform requirements for the durability, reusability, recyclability and reparability of products shall be defined at EU level in dialogue with manufacturers throughout Europe, and extended producer responsibility is intended to be strengthened at European level. The new government advocates a Europe-wide end of the landfilling of municipal waste. Under European law, the export of waste should only be permissible to certified recycling plants in the future. In addition, the coalition aims to introduce a level playing field for recycled plastic materials, in particular to standardize the quality of recycled materials for practical use.
On the other hand, digital product passports and an obligatory recycling label are planned to be introduced on national level. The coalition intends to strengthen waste prevention through legal targets and through ecologically beneficial reuse, return and deposit systems as well as industry agreements. An incentive system should be established to dispose of certain electrical appliances and lithium-ion batteries in an environmentally sound manner and to bring them into the circular economy. In addition, a legally anchored fund model is planned to reward resource-saving and recycling-friendly packaging design as well as the use of recycled material. Finally, the new coalition seems to be aiming for a reorganization of the demarcation between waste and product by releasing quality-assured waste products from waste legislation and giving them product status.
Medicinal and medical products
In particular, a Health Security Act is planned, in order to ensure the efficient and decentralised stockpiling of medicinal products and medical devices as well as regular emergency drills for staff for health crises.
The new federal Government is also planning to adjust and extend the liability of companies for breaches of duty (cf. the discussion on the so-called Association Sanctions Act in the last legislative period). This is to be achieved by expanding the provisions on corporate sanctions, including the level of sanctions. At the same time, the aim is to improve legal certainty for companies with regard to compliance obligations and thus also to create a precise legal framework for internal investigations. In addition, the coalition is committed to implementing the EU Whistleblower Directive, whereby the protection of whistleblowers is to be significantly expanded.
Consumer protection/ Product standards
Finally, the coalition wants to guarantee and expand existing consumer protection standards. The coalition agreement states:
“We want to make sustainability by design the standard for products” (line 3763)
The durability and reparability of a product is to be made a recognisable feature of the product property (right to repair). Manufacturers will have to provide updates during the normal period of use. In addition, it is planned to introduce a flexible warranty period, which is based on the respective service life of a product determined by the manufacturer.
Conclusion and outlook
In summary, it can be concluded that the coalition agreement suggests that there will be significant changes to regulatory requirements and product law requirements. In conjunction with the extremely ambitious goals of the EU in the area of the Green Deal, it can thus be expected that the coming years will bring comprehensive changes in the entire area of national and European product law. The coalition agreement follows the approach already anchored in the Green Deal of adding essential targets to the canon of marketability requirements and defining them as a prerequisite for market participation (“by design”). Therefore, all companies in the areas relevant to you should always keep a close eye on what developments are emerging and, where appropriate, contribute their practical experience and expertise, thus helping to ensure that legislative projects are practically implementable and add value in terms of the objectives to be achieved in each case.
The entire team of Produktkanzlei will closely follow new developments and is always available for discussions and questions.