Recently, the European Commission published the draft of a Directive which – beyond the already existing warranty – is to introduce a right to repair and we explain the core provisions of the draft hereinafter.
The Directive is intended to apply to certain goods purchased by a consumer and thus, it applies only in the b2c sector.
Explicitly, only defects outside the statutory warranty right are to be covered by the new right to repair. In essence, therefore, it will concern cases in which the statutory warranty period for the purchased goods has already expired. However, according to the draft’s explanatory memorandum, constellations are also to be covered in which the defect was not yet present when the item was handed over to the consumer, in other words, the defect was only caused in the sphere of the consumer.
It is important for the understanding of the new Directive that not all goods are to be subject to the right to repair, but only the product groups that are listed in Annex II of the draft. These are the following product groups for which ecodesign requirements exist:
- Washing machines
- Electronic displays
- Welding equipment
- Vacuum cleaners
- Servers and data storage products
- and, in the future, cell phones, cordless phones and tablets
The corresponding product groups according to Annex II can be expanded in the future, as already laid out in the draft for cell phones, cordless phones and tablets.
B. Content of the repair obligation
As can already be seen from the comments on the scope of application, the future right to repair will be predefined in terms of ecodesign law. This makes sense, as it ensures that the product can be repaired in principle by means of the repair requirements under ecodesign law. The reference to Annex II contained in Art. 5 of the draft is to apply both with regard to the specific repair requirements and with regard to the respective repair period. For example, the right to repair shall exist for a period of ten years if the referenced regulation in ecodesign law provides that spare parts shall be kept available for the respective product for ten years.
The core of the proposed Directive is a new statutory obligation in Art. 5 of the draft to repair the goods covered by the regulation free of charge or against payment if repair is possible. The possibility to offer the repair also only against payment is especially required due to the fact that the defect may also have been caused by the end customer. Especially in these cases of a self-caused defect, it would be unreasonable and cost-prohibitive to also provide for one or, in individual cases, even multiple free repairs.
According to the concept presented, the manufacturer must carry out the repair, whereby the commissioning of subcontractors is expressly permitted. If the manufacturer is based outside the EU, the repair obligation should fall to its authorized representative. If there is no authorized representative, the importer of the product will be liable for the repair. Subsidiarily, the retailer can also be responsible for the repair if there is also no importer. The detailed and far-reaching structur of obliged parties is intended to ensure that consumers have a debtor for the repair obligation within the EU for the products covered.
The central repair obligation is flanked in particular by the following further regulations:
According to the draft, manufacturers are obliged to inform consumers about the repair obligation and about the corresponding repair services. This is to be possible in particular via special online platforms to be provided by the Member States.
A special form is to be introduced for this purpose, with which certain information on a repair is to be made available. This should be provided to the consumer upon request by the repairer (i.e. also by the party obligated under Art. 5) prior to the conclusion of the repair contract. After all, the repairer can demand the costs that the provision of the form causes for him.
Also important is the provision in Article 12 of the draft, which, in addition to the new right to repair, is also intended to modify the European Directive on the Sale of Goods. According to this, the purchaser’s free right to choose between the two types of subsequent performance, which has existed up to now within the framework of subsequent performance under the law on the sale of goods, is to be restricted. In the future, in all cases where subsequent delivery is at least as expensive as repair, subsequent performance under the law on the sale of goods is to involve repair. It is therefore foreseeable that there will be more repairs within the framework of supplementary performance under the existing warranty law; however, this priority of repair under purchasing law affects the seller as the debtor of the claim for supplementary performance.
Finally, it should be mentioned that the present draft is also to be included in the annex to the European Directive on representative actions (we have reported: Things are getting serious for companies: New class action in Germany). This means that the new right to repair will also be “capable of being sued by associations”, i.e. numerous consumers will be able to take legal action in a bundle against the debtor, in practice probably mostly against the manufacturer.
Overall, the number of repairs of consumer products in the EU will increase. In the future, consumers will have a direct claim for repair, in particular against the manufacturer of the product. The creation of the corresponding repair possibilities will mean additional effort for the manufacturers (and possibly the other obligated parties). In addition, there is the risk of being exposed to corresponding class actions by numerous consumers throughout the EU in the future.
Do you have any questions about this news, or would you like to discuss it with the author? Please contact: Dr. Florian Niermeier