On 14.02.2024, the European Council published the final compromise text as a result of the trilogue negotiations. The current status is as follows:
A. Right to repair outside of warranty law
In practice, the most important change is that the European Parliament’s proposal to provide for a right to repair also for products for which there are no statutory repair requirements (in particular from ecodesign law) has been dropped. It therefore remains the case that only product groups for which such repair requirements exist can be included in the relevant Annex II. This principle is so important to the legislator that it is to be expressly laid down in the new Art. 1 Para. 2a of the Directive.
Within these provisions, two product groups have been added to Annex II, which is relevant for the scope of application of the right to repair. On the one hand, these are household tumble dryers in accordance with the new Regulation (EU) 2023/2533. On the other hand, a right to repair will also exist for products with a battery for light means of transport in accordance with Regulation (EU) 2023/1542, i.e. in particular for e-bikes and e-scooters.
The repair obligation for the manufacturer, or alternatively its authorised representative, for the importer or distributor has been retained. The Council has refrained from including fulfilment service providers in the group of (subsidiary) obligated parties.
In addition, there is the – rather clarifying – possibility for the manufacturer to lend or rent a replacement device to the consumer for the duration of the repair; furthermore, the manufacturer can offer the consumer a refurbished product if it is impossible to repair the defective product. The following additions to the repair obligation are likely to become more important in practice: Manufacturers must offer spare parts for products for which a repair obligation exists at reasonable and non-discouraging prices. Furthermore, those obliged to repair must in future indicate indicative prices for typical repairs on their website. Also new is the fundamental prohibition for manufacturers to hinder the repair of the product groups listed in Annex II, for example through contractual arrangements or technical measures. This applies in particular to the use of second-hand spare parts, compatible spare parts and spare parts manufactured using 3D printing if these other spare parts fulfil the (product safety) legal requirements. Finally, manufacturers may not refuse to carry out repairs on the grounds that a repair has already been carried out by a third party.
Another change of practical relevance is that the form (European Repair Information Form) regulated in detail in Art. 4 and Annex I of the Directive no longer has to be made available to the consumer; this is now only an option for the repairer.
The online platform with information on repairers is now to be introduced at European level instead of at national level in accordance with Art. 7 of the Directive.
It should also be mentioned that the new Art. 9a of the Directive requires Member States to introduce at least one measure to promote repairs. This should include non-financial measures such as information campaigns as well as financial measures (e.g. in the form of repair vouchers, repair funds, the financing of training programmes, etc.). Finally, a reduction in the VAT rate is also mentioned in this context. This suggests that repairs in the EU are also becoming more popular and more numerous due to such subsidies.
B. Changes in sales law
The changes to sales law contained in the current draft version are also important.
The criterion of reparability is added to the objective requirements for the contractual conformity of goods under sales law.
Above all, however, the warranty under sales law is to be extended – once only – by (at least) one year in favour of the consumer in the event of a repair. The individual Member States can also provide for even longer periods. In contrast to the European Parliament’s proposal, the buyer’s right to choose between repair and replacement is retained. However, the seller will be obliged to inform his customer of this right to choose and of the extension of the warranty period. The aim of promoting repair as an option for subsequent fulfilment is now to be achieved by incentivising a longer warranty period. After all, the Parliament’s proposal to be able to make a claim for repair directly against the manufacturer, irrespective of the existence of a purchase contract, was not pursued further.
Do you have any questions about this news, or would you like to discuss it with the author? Please contact: Dr. Florian Niermeier
