Eco-design Laws Mandate Right to Repair

The Committee on Eco-design and Energy Labelling of Energy–related Products (composed of representatives from all EU countries) has recently approved a draft Commission Regulation facilitating non-proprietary product repair (or “Right to Repair”) for refrigerating appliances, with formal acceptance by the European Union set for April 2019. Draft Commission Regulations containing similar measures for dishwashers and washing machines are currently under review by the Committee on Eco-design and Energy Labelling of Energy–related Products.

What Do These Right to Repair Standards Require?

The draft Commission Regulation include accessibility rights for third parties to obtain the necessary information and equipment to conduct the repair of products outside of the sanctioned service networks of the product makers and brand owners:

  • manufacturers are required to provide spare parts when key components fail, principally to commercial third party repair companies;
  • internal manuals required to make repairs will be made available to commercial third party repair companies only; and
  • spare parts must be delivered by manufacturers within 15 days.

Further, these standards go one step farther to impact upon the design the products themselves, requiring that manufacturers ensure appliances can be easily disassembled and that key components can be replaced with readily available tools. This change has broad-reaching international implications for both the white goods industries and beyond.

The Implications of Eco-design

The Right to Repair laws will not be entirely unanticipated within the EU. Eco-design has, at its broad  mandate, an ability to regulate:

  • the standards by which a product is “energy efficient” or “recyclable”;
  • mandated disclosure of information on how to use and maintain a product to minimize its environmental impact; and
  • obligations to perform a “lifecycle analysis of the product to identify alternative design options and solutions for improvement”.

Right to repair arguably falls squarely within this mandate. A failure to meet these standards, like other environmental product requirements, can result in a ban on the sale of non-compliant products within the EU.

What’s Covered by these Standards?

The products currently subject to these Eco-design requirements include many large appliances such as:

  • refrigerators;
  • dishwashers; and
  • washing machines.

Previously, environmental product design standards, including Eco-design have largely been limited to energy efficiency standards, including how they relate to large appliances.

Right to Repair as International Battleground

The EU’s Circular Economy places Eco-design as a central pillar of its program, enabling regulators to look at standards which impact the lifecycle for a product. Facilitating the repair of large appliances is likely an easy first step on the road towards more comprehensive Eco-design standards across a broad range of products, including those both currently subject to waste diversion laws and those identified for future regulation.

In recent years, right to repair laws have been introduced elsewhere, notably in the United States where nearly 20 states have proposed some form of legislation, typically aimed at the electronics and large equipment industries. To date, no law has been successfully passed amid substantial activism by stakeholders on all sides.

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With these coming Right to Repair laws, it’s not difficult to imagine that other products and other countries will be swept into these legislative initiatives. Of most interest will be whether Right to Repair will be limited elsewhere to accessibility rights alone or whether design-for-repair will become part of accepted product standards across industries.

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).
Clotilde Guyot-Réchard practices in the Litigation practice group of Baker McKenzie in Paris. She is admitted to practice in France and in the US. Clotilde focuses her practice on commercial and civil litigation, at both national and international level. Clotilde's practice covers contract and tort law in general (contractual disputes, pre-contractual liability, post-acquisition disputes, torts…), distribution and commercial law (exclusive and selective distribution, commercial agents, abrupt termination of established commercial relations… ), as well as insolvency. Clotilde has advised clients in the Consumer Goods & Retail sector, as well as the Luxury and Fashion industry.