On 21.11.2023, the European Parliament adopted its proposed amendments to the draft directive, which aims to introduce a right to repair throughout the EU. We summarise the most important proposed amendments.
A. European Right to Repair
Probably the most important amendment in this part of the draft has a relatively limited immediate impact but could lead to a massive expansion of the scope of the right to repair in the future. Until now, the right to repair was only to apply to products that were subject to ecodesign requirements, to which the content was also linked. This restriction to ecodesign product groups is now to be expressly abandoned. In the draft, this has so far only led to the inclusion of bicycles in Annex II of the directive, for which a right to repair would be created, although simple bicycles are not subject to any ecodesign requirements. In the future, however, the relevant Annex II could be extended under the new concept to include any products and product groups, even if they are not subject to ecodesign legislation. It is therefore no longer foreseeable for which products a right to repair will exist in future.
The group of parties obliged to repair products is also to be expanded, namely to include fulfilment service providers. These are to be subject to the obligation to repair if there is neither a manufacturer within the EU nor an importer of the goods into the EU.
The obligation to inform consumers about the repair and the costs incurred by means of a form has remained. In addition to the manufacturer, the seller is now also required to provide information. Previously, it was also envisaged that the repairer could demand reimbursement of the costs incurred by providing this information. This is now only to apply if an examination of the specific defective product is necessary to determine the repair costs; in other cases, the information is apparently to be provided free of charge.
Furthermore, manufacturers are to be expressly obliged to provide all information relating to repairs on their own website, in particular the prices for repairs and the prices of spare parts. Furthermore, manufacturers may not hinder repairs by contractual or electronic means. Furthermore, they may not impede the use of original spare parts, used spare parts, compatible spare parts or spare parts manufactured by means of 3D printing by independent repairers (if these fulfil the requirements of national or Union law).
The Member States should in turn take appropriate measures to promote these repairs. This includes repair vouchers, national repair funds or other measures and incentives. Furthermore, the sanctions will be specified and tightened. For example, the maximum fines to be imposed for cross-border infringements should now amount to at least 4 percent of the annual turnover in the Member States concerned; where information on turnover is missing, the maximum fine should still amount to EUR 2 million.
Finally, the deadlines for implementing the directive are to be shortened from two years to 18 months.
B. Changes to sales law
The newly proposed changes to sales law (via modifications to the Sale of Goods Directive (EU) 2019/771) are also extremely important in practical terms and have significant consequences for the parties obliged to fulfil their obligations. Accordingly, commercial durability guarantees should always include a right to repair for the customer in future.
Another proposed amendment is particularly important: according to the European Parliament, consumers as buyers should also be able to contact the manufacturer directly in addition to the seller with regard to a contractual repair and request the manufacturer to bring the product into a contractual condition. The fact that this is what is actually meant is shown by another proposed amendment to the law with the following wording: “In the event that the consumer decides, pursuant to Article 13(3a), that the producer shall bring the goods in conformity by means of repair, the producer shall be considered to be the seller for the purpose of this Article.” In other words, the manufacturer of the product, who in the vast majority of cases will not be the consumer’s contractual partner, should now have to assume the corresponding responsibility of the seller by virtue of legal fiction. This would effectively remove the relativity of contractual obligations in the area of rectification under sales law vis-à-vis a consumer and expose the manufacturer to direct warranty claims from the end customer. It is to be hoped that this draft will not become law, particularly as this would have practically unforeseeable consequences for manufacturers and as it would cut off all defences in the entire supply chain (in practice, for example, the obligation to give notice of defects under Sec. 377 HGB).
Such a repair is also intended to extend the limitation period for the consumer’s warranty claims by one year from receipt of the repaired goods. After all, this very consumer-friendly change should only apply once to the first repair, but not to any further repairs.
In addition, the draft stipulates that, depending on the specific features of the product category in question, in particular its permanent availability to the consumer, the seller will be obliged to provide the consumer with a loaner device free of charge for the duration of the repair if it cannot be completed within a reasonable period of time. This could be particularly relevant for products such as mobile phones or cars and could mean considerable additional financial and logistical costs for retailers.
On the other hand, the priority of repair over subsequent delivery provided for in the original draft is to be softened somewhat. In addition to the impossibility of repair, this provision should also apply if this is associated with considerable inconvenience for the consumer. In these cases, the consumer will then be able to demand a subsequent delivery instead of a repair.
Conclusion
The European Parliament’s proposal paves the way for extending the right to repair via product categories with ecodesign specifications to any other product groups in future; specifically, the draft already envisages this for bicycles. In sales law, direct repair claims against the manufacturer are to be created, even if the manufacturer has not sold the product to the consumer as the end customer. In addition, the limitation period for warranty claims under sales law is to be extended by one year as a result of a repair. This would entail a massive amount of additional work, particularly for the manufacturers concerned, but also for sellers.
Do you have any questions about this news or would you like to discuss it with the author? Please contact: Dr. Florian Niermeier
