In our series “Product Law News in a Nutshell” we regularly present new developments and judgments in the field of product safety, product liability and sustainable products. Most of these diverse innovations originate from the pen of European institutions. 

Europe is to be climate-neutral by 2050. This is not possible without consistent resource conservation. As a central component of the EU Green Deal, the EU Commission has focused on a sustainable product cycle at an early stage. Ecologically sustainable products are to become the norm. The new Ecodesign Regulation is becoming the new guiding star of product law – and the industry is facing major changes.

1. Purpose of the Ecodesign Regulation
   The planned EU Ecodesign Regulation will create a legally binding and harmonised framework to ensure that products on the European market are, in the future, not only safe but have also been designed to be ecologically sustainable. To be improved are, in particular, the durability, reusability, retrofittability, reparability, energy and resource efficiency, recycling possibilities and the use of recycled materials.
   These sustainability requirements are to apply to almost all physical goods, with the exception of food and feed, pharmaceuticals and (presumably also) vehicles. Against this broad scope, the Ecodesign Regulation will have an enormous significance for the industry – also in comparison to the current Ecodesign Directive, which only applies to certain energy consumption-relevant products.
   The specific sustainability requirements for the different individual product groups and their design are, however, not laid down in the Ecodesign Regulation as such but are to be defined by the EU Commission in supplementary delegated regulations.
2. A real novelty: the digital product passport
   A real novelty in product law is also the digital product passport provided for in the draft Ecodesign Regulation. Calls for a digitalisation of product law have been around for years, especially in product safety law. Now, for the first time, a digital product passport will be introduced with the Ecodesign Regulation: Information such as on the ecological sustainability of the respective product is to be provided on a data carrier. This should help consumers in their purchasing decisions, facilitate repairs and recycling, and improve traceability. The digital product passport is intended to support authorities in market surveillance. The exact specifications – on the type of data carrier, the scope of the information and persons with access, etc. – have not yet been determined. They will also be laid down later in the delegated regulations for the individual product groups.
   However, it is already clear today that the digital product passport is explicitly not intended to replace analogue information but only to supplement it, at least for the time being. The opportunities of digitalisation are therefore (unfortunately) not consistently used by the legislator. Instead, the industry will be confronted with many unclear practical questions regarding the digital product passport.
3. Prohibiting the destruction of unsold consumer products
   In order to reduce the amount of waste, the EU Member States in Competition Council included a further initiative in the draft Ecodesign Regulation at the end of May. A rather obvious potential for resource conservation lies in a reduced destruction of new goods, which is particularly relevant in online trade with return rates of up to over 50 percent. The EU Commission had already provided for transparency obligations and a general power to adopt acts prohibiting the destruction of unsold consumer products in the draft Ecodesign Regulation.
   Given that the textile industry, as the fourth largest producer of negative environmental impacts and an enormous amount of waste – 5.8 million tonnes of textiles are incinerated in the EU every year -, is currently the focus of particular attention, the Competition Council recently added a prohibition to destruct unsold clothing for large and medium-sized companies into the draft Regulation. The prohibition will apply 36 or 48 months after the Regulation comes into force. By then, stakeholders will not only have to think about possible adjustments to their returns policies but may also have to reconsider their purchasing and production planning accordingly.
4. Start of trilogue negotiations
   After the Competition Council has published its “General Approach”, the draft of the Ecodesign Regulation will now enter the so-called trilogue procedure, in which the Member States, the EU Commission and the European Parliament will negotiate the final draft. Subsequently, the draft must be adopted by the EU Parliament and the Council of Ministers. Since the new requirements for ecodesign are laid down in regulations, they will be applicable in all Member States as directly applicable EU law – in contrast to directives which must be transposed into national laws. Particularly with regard to the delegated regulations for the different product groups, in which the European legislator is expected to make very far-reaching specifications for the concrete design of products, industry stakeholders are recommended to closely following and accompanying the legislative process. Not only in order to incorporate practical and strategic interests but also to anticipate the concrete impacts of the planned new requirements on their own product lines at an early stage and to prepare any necessary adjustments to the product design with sufficient lead time. In any case, compliance with the ecodesign requirements will not be a mere “nice to have”, but a prerequisite for legally placing products on the market. Products that do not meet the sustainability requirements (in time) may, in the future, no longer be sold.

Author:
Dr. Astrid Seehafer M.Sc.