The European Parliament and Council are in negotiations to finalize the adoption of a proposal for a new Directive on the Right to Repair.  The proposed Directive aims to meet the product sustainability and circularity objectives by improving product durability, reusability, upgradeability, and repairability as outlined in the European Commission’s Circular Economy Action Plan 2020, a key component of the European Green Deal.*

The Parliament and Council are expected to reach an agreement and adopt the proposed Directive before the European Parliament’s elections in June 2024, so that the Directive’s repairability requirements could already apply to products marketed in the EU/EEA as of 2026- 2027.

Once adopted, the proposed Directive would require producers of certain “goods” to repair, at the consumer’s request, defects in those “goods”, unless repair is deemed  “impossible.”  The proposed Directive defines “goods” broadly to include all tangible movable items, except for water, gas and electricity.  The proposed Directive applies to “goods” that incorporate or are connected to digital content or a digital service in such a way that the absence of the content or service would prevent the goods from performing their functions.

The proposed Directive complements the Sales of Goods Directive (Directive (EU) 2019/771).  The Sales of Goods Directive imposes an obligation on sellers to repair goods purchased by consumers in the event of a lack of conformity that existed when the goods were delivered and which becomes apparent within the two-year liability period.  The proposed Directive requires producers to repair certain goods purchased by consumers where a defect of the goods occurs or becomes apparent outside the seller’s liability under the Sales of Goods Directive.  Similar obligations under the upcoming Sustainable Products Regulation and the proposed Greenwashing Directive will complement the proposed Directive’s right to repair obligations.

In a previous post, we outlined the main background, objectives, and obligations of the proposed Directive on the Right to Repair.  In this post, we discuss the main amendments proposed by the European Parliament and Council to the proposed Directive and their differences as both institutions enter “trilogue negotiations” to finalize the text.

  1. Scope of the Obligation to Repair.  The Commission’s proposal imposes the repair obligation to producers of products listed in Annex II to the proposed Directive for which “reparability requirements” have been defined in product-specific Commission Regulations adopted under the Eco-design Directive.  The European Parliament proposes to significantly extend the scope of the repair obligation by imposing it also on producers of: (i) goods subject to product-specific Commission Regulations adopted under the Eco-design Directive for which no “reparability requirements” have been defined and (ii) any other goods listed in Annex II.  For example, the Parliament proposes adding bicycles to the list of goods mentioned in Annex II, even though this is not a good subject to product-specific Commission Regulations under the Eco-design Directive.  The relevance of the Parliament’s amendment is that it would empower the Commission to add any product to Annex II and, therefore, subject it to the proposed Directive’s requirements.
  2. The Obligation to Repair.  Under the Commission’s proposal, producers would have the choice of offering the repair of the goods listed in Annex II either free of charge, for a price, or for other consideration.  The Parliament and the Council introduce requirements in relation to the repair obligation.  For example, they both require that the repair be carried out within a reasonable time.  But the Parliament would give producers the option to provide consumers with a refurbished product as an alternative to repairing a product where the repair is “factually or legally impossible.”  It also proposes to require producers to (i) provide independent third-party repairers with access to spare parts and repair-related information at a reasonable and non-discriminatory cost and (ii) publish on their websites all information related to repair, such as repair prices and prices of spare parts for the goods listed in Annex II.
  3. European Repair Information Form.  In its proposal, the Commission would require repairers to provide consumers with a European Repair Information Form before entering into a binding contract for repair services.  This obligation would apply to repairers subject to the repair obligation under the proposed Directive (i.e., producers of products listed in Annex II), and to other entities when they intend to provide repair services.  The Form would require indicating, amongst others, the goods to be repaired, the nature of the defect, the price (if it can be reasonably calculated in advance), and the estimated time needed for the repair.  The Council proposes that the Form should be provided free of charge, with consumers possibly having to pay for “diagnostic services,” which are services for identifying the defect and the type of repair needed.  Conversely, the Parliament proposes to make the provision of the Form optional for repairers.  However, where repairers (other than producers) intend to make the Form available, producers would be required to provide repairers with the information necessary for the repairer to complete the Form.
  4. Online Platform for Repair.  The Commission and Parliament want each Member State to set up an “online platform for repair and goods subject to refurbishment.”  That platform would not be limited to the repair of goods listed in Annex II.  The purpose of such a platform would be to allow consumers to find repairers and the services they offer easily.  The Council favors a single European-wide online platform that would allow Member States to maintain or establish national platforms that meet certain conditions, with the flexibility to include sellers of refurbished goods and buyers of defective goods in order to promote sustainable consumption.
  5. Amendment to Sale of Goods Directive.  The Sale of Goods Directive provides that consumers have a choice between repair and replacement in the event of a defect occurring within the seller’s two-year liability period, unless one of these options is either impossible or disproportionately expensive.  The Council proposes to extend the seller’s liability period by an additional six-month period if the remedy chosen by the consumer is the repair of the good.  Sellers would have to inform consumers about their right to choose and the extended liability period in case of repair.  The Parliament proposes to extend the legal guarantee for repaired goods by one year.
  6. Transition.  The Council proposes that the proposed Directive’s requirements apply to goods marketed in the EU/EEA 30 months from the date of entry into force of the Directive (i.e., around 2027).  The Parliament proposes that the requirements apply from around early 2026.

***

Covington’s Product Safety and Environmental Practice Group has extensive experience advising on EU environmental policy and legislation, as well as EU consumer protection law.  If you have any questions about how the right to repair will affect your business, or about the developments proposed under the European Commission’s Circular Economy Action Plan more broadly, our team would be happy to assist.

*Alberto Vogel, a trainee in our Brussel’s office who graduated from the University of Turin and received an LLM from King’s College London, contributed to this post.

Photo of Cándido García Molyneux Cándido García Molyneux

Cándido García Molyneux provides clients with regulatory, policy and strategic advice on EU environmental and product safety legislation. He helps clients influence EU legislation and guidance and comply with requirements in an efficient manner, representing them before the EU Courts and institutions.

Cándido…

Cándido García Molyneux provides clients with regulatory, policy and strategic advice on EU environmental and product safety legislation. He helps clients influence EU legislation and guidance and comply with requirements in an efficient manner, representing them before the EU Courts and institutions.

Cándido co-chairs the firm’s Environmental Practice Group.

Cándido has a deep knowledge of EU requirements on chemicals, circular economy and waste management, climate change, energy efficiency, renewable energies as well as their interrelationship with specific product categories and industries, such as electronics, cosmetics, healthcare products, and more general consumer products.

In addition, Cándido has particular expertise on EU institutional and trade law, and the import of food products into the EU. Cándido also regularly advises clients on Spanish food and drug law.

Cándido is described by Chambers Europe as being “creative and frighteningly smart.” His clients note that “he has a very measured, considered, deliberative manner,” and that “he has superb analytical and writing skills.”

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.