The webinar was opened by ELI President, Pascal Pichonnaz, who thanked speakers and participants and stressed the importance of the circular economy.
The first speaker, Susanne Augenhofer (Professor at University of Innsbruck and author of ELI’s Response), said that the right to repair must be seen in the context of the bigger picture, including greenwashing, ecodesign legislation, anticompetitive agreements, premature and psychological obsolescence. She voiced her scepticism of the limitation of consumers’ freedom of choice to repair as a primary remedy as this has disadvantages, as well as advantages which she outlined. Augenhofer explained who, in her view, is the best cost avoider, before offering suggestions on how the useful lifespan of goods can be extended, including an obligation to publish repair codes, ensuring that repair is technically possible, and informing consumers about the environmental impact of a product and its durability.
Augenhofer was followed by Hans Micklitz (Professor, European University Institute) and Victor Mehnert (Research assistant at the Chair of Civil Law, Information Law and Data Law at the Rheinische Friedrich-Wilhelms-Universität Bonn), who presented the German Consumer Council’s ‘Right to Repair’ Policy Brief. The Brief emphasises the need for more coherence. Among other things, Mehnert stressed the need for the European legislator to adopt a holistic prospective on the right to repair, interweaving various initiatives in the field including eco-design rules and the Sales of Good Directive. The Brief also rejects a one-size-fits-all approach that comes with full harmonisation. Rather, opening clauses are proposed that would facilitate ‘regulatory sandboxes’ and allow leeway for national legislators to legislate in light of experience on the ground.
The third speaker, Patrycja Gautier (Team Leader, Senior Legal Officer, The European Consumer Organisation, BEUC), presented BEUC’s position on the matter. In BEUC’s opinion, the last revision of the Sales of Goods Directive was a lost opportunity. It was not ambitious enough from the point of view of sustainability. BEUC believes that the time has come to take more ambitious steps. On the right to repair, several initiatives are ongoing in parallel. A holistic approach from different angles is essential. Among other suggestions were that certain goods, eg white goods, would benefit from tailored limitation periods since the current two-year one-size-fits-all period is inadequate. On BEUC’s behalf, Gautier also agreed that repair should not be the only primary remedy. She advocated the extension of the reversal of the burden of proof, direct producer liability, the need for repairs to be completed within a fixed timeframe (eg 15 days), the absence of repair in the case of minor defects, temporary replacement products and an obligation to provide updates during the entire expected lifespan of a product. She also recommended better information for consumers, via product labelling, the introduction of an EU wide repair index and information on durability as well as a ‘guaranteed lifespan’ label by companies wishing to offer extended guarantees.
Malte Gallée (Group of the Greens/European Free Alliance, Member of the European Parliament), put the right to repair within the context of the waste hierarchy. To begin with, waste needs to be reduced. Second, products should be designed in a manner that enables their reuse and finally, in a manner that enables recycling. The right to repair is secondary. He said that the European Parliament has no official position yet on the right to repair since the file is still with the Commission. Nevertheless, Parliament’s initiative report, it requests a joint manufacturer-seller liability mechanism in the event of non-conformity of products, an amendment of the Sales of Good Directive, the extension of the legal guarantee and its full harmonisation, among other things. It also wishes to see a repair score, including information about the durability of products, with a view to empowering consumers. Gallée repeated that the focus on the design of products is primary and the right to repair is secondary. He concluded by saying that the forthcoming digital product passport marks a huge opportunity. Parliament is working on ensuing it contains information on reparability and durability.
Dirk Staudenmayer (Head of Unit Contract Law, European Commission) explained that the delay on the adoption of the Commission’s proposal was due to a negative review of the impact assessment report, which however was resubmitted and was recently positively reviewed. The report was introduced recently as part of a better regulation process. The Commission now aims at presenting its proposal in March 2023. Among other things, Staudenmayer clarified that is being pushed forward with two other initiatives: the proposal for Ecodesign for Sustainable Products Regulation (ESPR) and the Proposal for a Directive on empowering consumers for the green transition. The three proposals together tackle both production and consumption.
The insightful interventions were followed by a lively Q&A session.
The recording of the webinar is available below.
