30 March 2023 Mirjam Erb ProductLiabilityLinks

The EU Commission’s plans for a right to repair

After several deferrals, the EU Commission has finally presented its long-awaited right to repair initiative as part of its third circular economy package. Its proposals are in line with the EU Green Deal and with similar developments at national level that aim to promote the repair of goods (see, e.g., our blog post on the German government’s plans). In pursuit of this objective, the Commission plans to strengthen consumer rights in case of defective products, while imposing additional obligations on companies active in the production, sale or repair of goods.

Main proposals

With its proposal for a directive on common rules promoting the repair of goods, the Commission wants to boost the sustainable consumption of goods, thereby avoiding premature disposal and developing a circular economy to protect the environment. For this purpose, the Commission suggests to amend the legal warranty rules laid down in the Sale of Goods Directive and to introduce new measures going beyond the legal warranty:

  • Through an amendment of the Sale of Goods Directive, sellers shall be required to offer repair of a defective good that is still covered by the two-year legal warranty period except when repair is more expensive than a replacement.
  • The Commission also proposes several measures that go beyond the legal warranty:
    • Unless repair is impossible, consumers shall be entitled to claim repair from producers beyond the legal warranty period for certain products. Pursuant to draft Annex II to the directive, such products include washing machines, refrigerators and vacuum cleaners, and the list will be extended over time. The repair services do not have to be offered free of charge and may be subcontracted. The proposal includes rules for non-EU producers to ensure that consumers always have someone to turn to within the EU when they wish to repair their products.
    • Producers shall also be obliged to inform consumers about the products that they are obliged to repair.
    • In addition, the Commission wants to establish voluntary online platforms that allow consumers to find repairers.
    • The Commission also wants to introduce a so-called European Repair Information Form which consumers shall be able to request from any repairer to compare repair offers (see draft Annex I to the directive).
    • Finally, a European quality standard for repair services shall be developed.

Enforcement of the new obligations is left to the Member States which shall ensure that “adequate and effective” means exist to ensure compliance with the directive. According to the Commission, the new regulations shall be subject to the Collective Redress Directive, i.e. they can be enforced through collective actions (read more on the directive in our client alert).

All of the new provisions shall be mandatory. On the one hand, the principle of full harmonisation shall apply, i.e. Member States shall not be able to maintain or introduce national laws that deviate from the directive. On the other hand, individual contractual agreements excluding the application of the national laws implementing the directive to the detriment of the consumer shall also not be binding on the consumer.

Outlook

The European Parliament and the Council will now discuss the proposal under the ordinary legislative procedure. Before the directive will be formally adopted, the highly controversial proposal may very well be significantly amended. 

Yet, despite the transitional provisions and the implementation deadline foreseen in the proposal, it can be expected that companies active in the production, sale or repair of goods will soon be subject to additional and burdensome obligations towards their B2C customers. Manufacturers will, for instance, have to keep spare parts in stock to meet their new obligations. They should thus closely monitor the further progress of the proposal in conjunction with the other circular economy initiatives such as the review of the ecodesign rules (read more in our client alert) or the parallel proposal on green claims.