This article is the fourth part of the series of blog posts entitled “What’s changing in 2023”, iin which the experts of the Produktkanzlei team summarize the relevant topics from their respective areas of expertise in an overview format. Specifically, the EU Commission’s legislative initiative on the right to repair (see A.), the initiative to substantiate “green claims” (see B.), and the proposal for a directive to amend the UCP Directive and the Consumer Rights Directive (see C.) are examined below.
A. Right to repair
The EU Commission wants to introduce regulations on a new right to repair. An amendment of the European Purchasing Directive and/or a separate legal act to introduce a right to repair is planned. The Commission has initiated the process through its initiative “Sustainable Consumption of Goods – Promoting Repair and Reuse“, on which the European Parliament adopted a resolution on 07.04.2022. A concrete draft law does not yet exist. However, the Commission has included the project in its work programme for 2023.
The main objective of this legislative initiative is to encourage consumers to use consumer goods longer by repairing defective goods and buying more used and refurbished goods instead of new products. Several possibilities (alternative or cumulative) are discussed for this purpose:
- Option 1: Low policy intervention – voluntary commitments: Incentives for companies to voluntarily commit to repairing goods with significant negative environmental impacts; encouraging the purchase of used and refurbished goods.
- Option 2: Moderate political intervention:
- Sub-option 2A: Extension of the legal guarantee period: (i) for new goods, consumers can choose to have them repaired instead of replaced if they are defective and/or (ii) for used and/or refurbished goods
- Sub-option 2B: Preferred remedy should be repair if it is cheaper or as cheap as replacement; obligation for manufacturers or sellers to repair goods beyond the legal warranty period at a reasonable price (new right to repair)
- Option 3: High political intervention:
- Sub-option 3A: Limiting consumer choice by giving preference to repair over replacement of a product; obligation for manufacturers or sellers to repair goods free of charge in some cases beyond the legal warranty (new right to repair)
- Sub-option 3B: Extension of the statutory warranty beyond the current minimum period of two years
- Sub-option 3C: The seller can replace defective products with refurbished (used) products
B. EU initiative to substantiate green claims
The EU Commission has launched an initiative for evidence of the environmental performance of products and companies. This outlines a harmonised approach to enable more reliable and ultimately more comparable information on environmental claims in the future and thus reduce “greenwashing” (i.e. giving a false impression of a company’s environmental impact). The implementation of this proposal would have foreseeable effects on competition law; the Commission itself speaks of a measure to promote competition in “green” markets.
In addition to maintaining the status quo, the following options are being discussed:
- Option 1: Update the existing Recommendation 2013/179/EU on the use of common methodologies for measuring and disclosing the environmental performance of products and organisations.
- Option 2: Establish a voluntary EU legal framework allowing companies to make green claims in accordance with environmental footprint methods, as a complement to existing methods (developed by private or public bodies, at national or international level).
- Option 3: Establish a European legal framework requiring companies to provide information on the impacts covered by the specific environmental footprint methods in order to substantiate the claims using the environmental footprint methods. After so-called Product Environmental Footprint Category Rules (PEFCRs) or Organisation Environmental Footprint Sector Rules (OEFSRs) are implemented, green claims should be substantiated on this basis, as they allow for a more detailed calculation of the environmental footprint. If there are no such rules, the claims can be substantiated by a study according to the so-called PEF/OEF method.
C. Proposal for a Directive amending the UCP Directive and the Consumer Rights Directive
The EU Commission has published the Proposal for a Directive amending Directives 2005/29/EC and 2011/83/EU with regard to empowering consumers for ecological change through better protection against unfair practices and better information. This will foreseeably have considerable consequences in competition law, especially with regard to advertising with green claims and the reparability of products.
For example, the environmental and social impact, the durability and the reparability of the product are to be included as essential characteristics within the scope of the misleading offence. Furthermore, statements about future environmental performance are to be considered misleading if they are made without clear, objective and verifiable commitments and targets and without an independent monitoring system.
The so-called black list of business practices that are always considered unfair is to be expanded to include the following offences in particular:
- affixing a sustainability label that is not based on a certification system or set by government bodies
- making a general environmental claim where the trader cannot provide evidence of the recognised environmental excellence to which the claim relates
- making an environmental claim about the product as a whole when in fact it relates only to a particular aspect of the product
- failure to inform the consumer that there is a feature of a product that has been introduced to limit its shelf life (planned obsolescence)
- claimimg that a good has a certain durability in terms of time or intensity of use when this is not the case
- presenting goods as repairable when they are not, or failing to inform the consumer that the goods cannot be repaired in accordance with legal requirements
- causing the consumer to replace operating materials of a good earlier than is necessary for technical reason
- failure to inform the consumer that a good has been designed in such a way that its functionality is limited by the use of consumables, spare parts or accessories not provided by the original manufacturer
The topics of sustainability and green claims are becoming increasingly important in general civil law. On the one hand, the introduction of a Europe-wide right to repair can be expected in the medium term. On the other hand, the density of regulations in competition law regarding product-related advertising claims is increasing more and more. This applies above all to green claims, but also to other advertising with environmental claims, up to and including an obligation to indicate the possible planned obsolescence of products.
Do you have any questions about this news, or would you like to discuss it with the author? Please contact: Dr. Florian Niermeier
