The new right to repair: sustainably innovative or in need of repair?

Conclusion»

At the beginning of February, the Council and the EU Parliament reached a provisional agreement on the so-called “Directive on the promotion of repair of goods”, which has been circulating in the media under the catchphrase “right to repair” and could ensure greater sustainability in the future. This agreement is based on a proposal presented by the EU Commission almost a year ago (COM(2023) 155 final, 2023/0083 (COD) of 22.3.2023, available at resource.html (europa.eu)).

The right to repair proposal complements EU initiatives on eco-design and consumer empowerment for the green transition. The aim is to prevent the premature discarding of goods by making access to repair services simpler, faster, more transparent and more attractive. This should secure jobs, promote more sustainable business models and limit dependence on raw materials from abroad.

The provisional agreement so far only covers products for which repairability requirements have been defined in EU regulations. This currently mainly includes “white goods” such as (household) washing machines, dryers, dishwashers, refrigerators, but also smartphones, tablets, electronic displays, servers, data storage devices and vacuum cleaners.

Against the backdrop of the ambitious goal of a climate-neutral domestic market by 2050, however, it can be assumed that this list will expand significantly. Companies are therefore well advised to monitor further developments and prepare accordingly.

According to the draft directive, the member states must ensure that the manufacturers of the aforementioned goods repair them at the request of a consumer even after the warranty period has expired, within a reasonable period and at a reasonable price. Otherwise, there would be a risk that the consumer would, purely factually, prefer to buy a new product rather than having it repaired.

MEPs also propose extending the warranty period by one year from the date of repair if consumers opt for a repair instead of a replacement delivery in the event of a defect. To make repairing more attractive than replacing, manufacturers should make loaner devices available for the duration of the repair.

The manufacturer may subcontract repairs in order to fulfill its repair obligation. It does not apply to goods that cannot be repaired. However, the draft does not specify when this is the case. The directive also does not define a binding quality standard for repairs. If a product can no longer be repaired, the possibility of offering an already repaired product instead should be considered.

The manufacturer is generally obliged to repair the product. If the manufacturer is based outside the EU, the authorized representative, the importer or even the dealer of such a product may be liable for repairs, similar to the provisions of product liability law.

The draft directive provides for extensive information obligations with regard to the essential characteristics of the repair service and the identity of the repair business.

In order to reduce the administrative burden for repairers (especially small ones), a standardized European form for repair information is to be used. If this is used, the repairers are bound by the conditions specified therein. The form must be made available free of charge, although consumers may be asked to bear the costs of the diagnostic service.

Finally, there are also plans to create a European “match-making” repair platform to make it possible to contact repair service providers in the consumer's region across borders.

The draft directive still has to be approved and formally adopted by both sides. It is expected to be adopted shortly. The EU member states will then have a period of 18 months to transpose the directive into national law. In this respect, regulation in Germany would probably have to take place in the second half of 2025.

Full harmonization is envisaged, i.e. the member states may not maintain or issue any regulations that deviate from this directive.

From a business perspective, the draft must be viewed critically. On the one hand 

it extends the manufacturer's responsibility immensely, on the other hand it leaves many questions unanswered - both factual and legal. For example, it does not specify how long repairs must be made possible, nor how long the manufacturer must keep spare parts in stock. The willingness of companies to disclose repair information will also reach its limits where the disclosure of secret know-how is involved. According to the current provisions of the German Trade Secrets Act, so-called reverse engineering to obtain technical information about the mode of action of a product is generally permitted, but in the end the person who wants to repair a product will need further information or, for example, remote access to a smart product. However, according to the recently updated cyber security requirements, smart products in particular should be even more protected against access. It is also still disputed when the sale of re-filed and re-furbed products is permissible and when it constitutes a trademark or patent infringement.  The draft leaves open how this tension between IP rights, consumer protection and environmental protection is to be resolved. Finally, it is questionable how repairs are to be offered at reasonable prices if manufacturers first have to set up the associated logistics.

It remains to be seen to what extent the right to repair will actually be exercised and whether it can create the desired incentive for greater sustainability. Nevertheless, manufacturers will have to deal with it, not least in order to meet their own climate targets and avoid a possible fine, which the directive also prefers.