On March 22, 2023, the European Commission published a proposal for Directive on common rules promoting the repair of goods (“Proposal”), which would grant consumers the right to request from producers the repair of products that under EU law are subject to “reparability requirements.”  The Proposal’s aim is to encourage producers to develop more sustainable business models by ensuring that their products are reparable.

The European Parliament and Council are now considering the Proposal for adoption and may introduce amendments.  Manufacturers should consider the impact of the Proposal on their products and suggest their amendments to Members of the European Parliament and Member States. If adopted, the Proposal’s requirements are not likely to apply in the different Member States before the end of 2026.

Contextual Background of the Proposal

The Proposal is intended to achieve the product sustainability and circularity objectives of the European Commission’s Circular Economy Action Plan of 2020, one of the main building blocks of the European Green Deal, that announced the Commission’s intention to introduce legislative initiatives aimed at “improving product durability, reusability, upgradability and reparability.”  Other initiatives affecting the durability, reparability and reusability of appliances and other products include: (i) a proposal for Regulation on Ecodesign Requirements for Sustainable Products (“Proposed Sustainable Products Regulation”), which will replace the existing Ecodesign Directive 2009/125/EC; and (ii) a proposal for a Directive amending Directives 2005/29/EC and 2011/83/EU as regards Empowering Consumers for the Green Transition Through Better Protection Against Unfair Practices and Better Information (“Proposal for a Greenwashing Directive”).

Obligation to Repair

The Proposal would impose several obligations on producers of “goods”, which it would define as “any tangible movable item, including those that incorporate or are inter-connected with digital content or a digital service” (e.g., Internet of Things).  In particular, the Proposal’s key obligation would be to require producers to repair, at consumers’ request, certain defects affecting goods that are subject to “reparability requirements” under the EU laws listed in Annex II of the Proposal, unless repair has become “impossible.”

“Reparability requirements” are defined as requirements that “enable a good to be repaired including requirements to improve its ease of disassembly, access to spare parts, and repair-related information and tools applicable to goods or specific components of goods.”  For example, different product-specific regulations implementing the Ecodesign Directive 2009/125/EC impose “reparability requirements” that are already enforceable in all Member States of the EU/EEA.  So far, these regulations impose “reparability requirements” on: (i) household washing machines, washer-dryers, and dishwashers; (ii) refrigerating appliances; (iii) electronic displays; (iv) welding equipment; (v) vacuum cleaners; and (vi) servers and data storage.  The European Commission is also working on a regulation applying to mobile phones, cordless phones and tablets.

The “reparability requirements” established by these EU laws aim to facilitate the repair of products, but they do not impose on producers an obligation to undertake the repair.  The Proposal changes this and explicitly imposes on producers an obligation to perform the repair, either through their own means or through sub-contractors.

               Scope of the Right to Repair

The right of repair only covers those components covered by the “reparability requirements” of the EU laws listed in Annex II.  Moreover, it only applies as long as the “reparability requirements” of the EU laws listed in Annex II apply.  For example, Commission Regulation (EU) 2019/2023, requires manufacturers, importers or authorized representatives of household washing machines and household washer-dryers to make available to professional repairers and end-users certain spare parts listed in the regulation for a minimum period of 10 years after placing the last unit of the model on the market.  This means that the obligation to repair only applies to these certain components of washing machines and only for these 10 years.

The Proposal clarifies that producers may charge for the repair.

               Relation with the Sales of Goods Directive

The Proposal’s right of repair would only apply to defects of the goods that that: (i) occur or become apparent after the two year warranty period set out Sales of Goods Directive; or (ii) that did not exist at the time when the goods were delivered (e.g., defects caused by wear and tear).

Producers Not Established in the EU/EEA

The Proposal would prevent producers outside of the EU/EEA from marketing their goods in the EU, unless an EU-based economic operator assumes responsibility for ensuring the consumer’s right of repair.  Thus, where the producer is established outside the EU/EEA, its authorized representative would have to ensure fulfillment of the obligation to repair.  If there is no authorized representative, the importer, and in its absence, distributor would be responsible.

Other Obligations

The Proposal would also require producers to:

• Inform consumers that they have the right to request the repair of the goods;
• Provide consumers, at their request, with a European Repair Information Form before they are bound by a contract for the provision of repair services; and  
• Ensure that independent repairers have access to spare parts and repair-related information and tools in accordance with the EU laws listed in Annex II.

Next Steps

The European Parliament and Council must now consider the Proposal for adoption through the so-called ordinary legislative procedure.  This procedure is expected to last at least 18 months and will allow the Parliament and Council to introduce amendments to the Proposal.  Producers marketing goods in the EU, in particular, those covered by the legislation listed in Annex II (e.g., household washing machines, washer-dryers, and dishwashers, refrigerating appliances, electronic displays, welding equipment, vacuum cleaners, and servers and data storage) should consider reaching out and suggesting amendments to Member States and Members of the European Parliament.

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