Pascal Pichonnaz (ELI President; Professor, University of Fribourg) opened the webinar by welcoming speakers and attendees and setting the scene. He explained that in April 2022 ELI submitted a Response to the European Commission Public Consultation on Sustainable Consumption of Goods – Promoting Repair and Reuse. The Commission then issued its Proposal for a Directive on Common Rules Promoting the Repair of Goods in March 2023 and ELI submitted its Feedback, prepared by a Drafting Committee, consisting of the Chair, Council Member Prof Dr Susanne Augenhofer, as well as Prof Dr Yeşim M Atamer and Dr Katarzyna Południak Gierz, with the support of Ms Rebecca Küter, in May 2023.
Susanne Augenhofer (Chair of the ELI Feedback; Professor, University of Innsbruck) presented the most important features of ELI’s Feedback. Among other things, she said she regretted that the proposal focuses mainly on policy options beyond the legal guarantee period instead of adjusting the Sales of Goods Directive to attain a more sustainable sales law. In so doing, the proposal misses the opportunity to combine stronger consumer protection rules with ones that promote sustainability. She criticised the proposed amendment to Article 12 of the Sales of Good Directive, which requires the seller to opt for repair instead of replacement where the costs for replacement are equal to or greater than the costs for repair. She further argued, among other things, that the proposed amendment results in a disadvantage for consumers, who lose their right to choose between repair and replacement and that the Commission missed the opportunity to go further and introduce a direct right for the consumer against the producer and not only against the seller. Augenhofer then turned to the ‘Obligation to repair’ introduced in Article 5 of the proposed Directive, which, in her view, should not be limited to goods for which and to the extent that reparability requirements are provided for by Union legal acts as listed in Annex II as this considerably restricts the obligation’s scope and thus the impact of the proposal. Finally, she assessed the proposed Article 7 and expressed doubts about its actual impact. The article introduces an online platform for repair and goods subject to refurbishment. However, most repairers already have an online presence which can be found via regular search engines, so it remains unclear if the benefits of such a repair platform outweigh the enormous administrative costs that Member States would have to bear. Moreover, at least one repair platform should be introduced by each Member State, so that their use in the case of transnational repair requests is limited.
Among other things, René Repasi (Member of the European Parliament, Group of the Progressive Alliance of Socialists and Democrats) made suggestions to make repair a more attractive solution during the legal guarantee period: repairability should be a requirement for the quality of goods; there should be a right to a replacement during the period of repair; repair must be exercised (eg within a 15 day period); and there should be joint ‘liability’ between seller and manufacturer. Further, he commented on the difference in the guarantee period between repaired products and replaced ones, which should be levelled up to two years in both cases. Regarding the second period (ie, after the expiration of the legal guarantee or where the consumer is not able to prove lack of conformity at the moment of purchase), he suggested introducing an article for Member States to incentivise structures to support repair and to regulate the price of spare parts, which today can hardly be explained by market reality. Finally, regarding the products subject to the obligation to repair, Repasi welcomed the insertion of guidance on the notion of impossibility in the Article itself and as regards Annex II, he said that the list should at least be extended to include clearly reparable products, eg bikes, batteries, which do not need the ecodesign regulation to conclude they are repairable.
Kilian Kaminski (Founder of Refurbed) presented the views of Refurbed and the European Refurbishment Association (EUREFAS). He stressed that the current linear model of production, consumption and waste processing is not sustainable and a transition to circularity is necessary: repair and reuse should not only be an option but become the new norm in Europe. From Refurbed's and EUREFAS’ perspective, European legislation should introduce a universal consumer right to repair, regardless of warranty limits: every consumer should be able to seek repair by a professional of their choice at a fair and affordable price. In this regard, the Commission’s proposal is not ambitious enough. He listed four different aspects that in their view should be taken into consideration in the final version of the law: design for reparability, a ban on practices that hinder repair, ensuring access to spare parts and repair information at fair and proportionate prices, and more sustainable products in the market.
Cristina Ganapini (Environmental Campaigner, Right to Repair Europe) said she agreed with Kaminski that the most important point is to ensure a universal right to repair, including choosing the repair service provider, beyond the legal guarantee, and for the entire expected lifetime of a device. She also agreed that the scope of Article 5 of the Directive should be extended as the most problematic products are for now left outside. Among other things, Ganapini stressed the need for affordability, as repair will only become more attractive if it is more affordable, and the need to tackle practices that prevent or limit repair beyond manufacturer circles. She said that in their view, for new goods, the alternatives should not be between repair and replacement but between repair and refund, in order to make repairability more valuable. Further, the repair market should be opened to independent service providers, also under the legal guarantee framework, venders should be prevented from refusing to repair if the product was previously repaired by non-authorised providers outside of guarantee, and the burden of proof should not be on the consumers for the entire duration of the legal guarantee period.
Hugh Kirk (Senior Policy Manager, DIGITALEUROPE) welcomed the proposal, which needs to be read with other legislation, and specifically expressed DIGITALEUROPE's support for the decision to make repair the primary remedy but also expressed DIGITALEUROPE’s willingness to see an increased role for replacement with refurbished products within the legal guarantee. Outside of the legal guarantee, they strongly support the link to the ecodesign requirements and believe that the list in Annex II will be an ever-expanding one. DIGITALEUROPE also supports the decision to apply a market-driven approach to repairs outside the legal guarantee and believe that restricting prices of repair will likely undermine independent repairers and SMEs. They support the repair information forms and platforms but think it is important that they are simple to use, to ensure their efficiency. Regarding the repair quality standard, that the Commission has promised, DIGITALEUROPE would like to see more on that and make sure that consumers’ safety is at the heart of that standard.
Martins Prieditis (Deputy Head of Unit B.2 ‘Consumer Law’; Directorate-General for Justice and Consumers, European Commission) took to the floor last and explained the rationale behind the remedies during the legal guarantee period and the obligation to repair beyond that period. He said that the Sales of Goods Directive was adopted in 2019 following intense legislative negotiations so the objective was not to change it radically before assessing how it works in practice. The Commission is fully aware of the restriction imposed on consumers’ right to choose between repair and replacement but consciously opted for this restriction to protect the environment and make the economy more circular. He admitted that certain provisions need to be better clarified; for example, the condition that the consumer should not undergo significant inconvenience in the case of repair/replacement remains fully applicable. Further, a measure that will likely have to accompany the repair is a temporary replacement during repair. Regarding the obligation to repair beyond the legal guarantee and its limited scope, Prieditis explained that the idea is to impose this obligation for goods which are technically repairable in accordance with existing EU requirements on design, etc, and reassured those present that the list in Annex II will grow as EU legislation on design requirements is currently being reviewed and expanded. Among other things, Prieditis added that the entire ecodesign framework will also be changed, allowing for the Commission to adopt technical design products on even more products than is possible now.
The presentations were followed by a lively discussion with participants.
The recording is available below:
