The Ecodesign Regulation: new sustainability obligations for manufacturers
The Ecodesign Regulation (the Regulation) entered into force on 18 July 2024. It establishes a framework for setting ecodesign requirements for specific products groups, with the aim of improving the sustainability of these products. In this blog, we describe what these requirements are (or may be), when they will apply, and to whom. Earlier, we wrote this blog about the European Commission's legislative proposal. Below, we address the final Regulation as adopted by the Council and the European Parliament.
Product requirements and the digital product passport
The Regulation not only contains rules that apply directly, but also provides a legal basis for the European Commission to set detailed product requirements in delegated acts (the rules on the destruction of unsold consumer products are an exception in this regard, addressed below). Those delegated acts allow the Commission to set sustainability requirements for specific products. The requirements can cover different product aspects, such as repairability, water use or recyclability.
The Commission can set performance and information requirements in delegated acts. Performance requirements may include a guaranteed lifetime, the availability and affordability of spare parts, or the content of recycled materials. These requirements can relate to one specific product group or to a particular aspect of different product groups. An example of the latter would be that a certain raw material used in different electrical appliances must always be recoverable.
Information requirements may also apply to product groups. This information could relate to the presence of substances of concern, product performance, or how a product should be maintained and repaired. This information should be stored in a digital product passport, accessible via a code on the packaging or the product itself. The product passport is one of the novel instruments introduced by the Regulation, and can be seen as a response to calls for more transparency and better information about raw materials and products, to accelerate the transition to a circular economy. We previously wrote this blog on this subject.
The Regulation itself is a response to many calls to regulate product design, for example by the Netherlands Environmental Assessment Agency (see this blog in that regard). The underlying theory is that, by regulating product design, the carbon and environmental footprint of products over their lifetime can be effectively reduced, and sustainable products can be made the norm. The product passport is also in line with calls from practice and science (here is an example).
To whom do the obligations apply and from when?
The Regulation applies to all physical goods placed on the market or put into service, including components and intermediate products. However, it does not apply to:
- food as defined in Article 2 of Regulation (EC) No 178/2002;
- feed as defined in Article 3(4) of Regulation (EC) No 178/2002;
- medicinal products as defined in Article 1(2) of Directive 2001/83/EC;
- veterinary medicinal products as defined in Article 4(1) of Regulation (EU) 2019/6;
- living plants, animals and micro-organisms;
- products of human origin;
- products of plants and animals directly related to their future propagation; and
- vehicles as referred to in Article 2(1) of Regulation (EU) No 167/2013, in Article 2(1) of Regulation (EU) No 168/2013 and in Article 2(1) of Regulation (EU) 2018/858, in respect of those product aspects for which requirements are set under sector-specific Union legislative acts applicable to those vehicles.
The European Commission will gradually adopt delegated acts containing product rules. Priority will be given to the development of product rules with the greatest expected environmental impact. As stipulated by the Regulation, the Commission will publish its first working plan by 19 April 2025. This document will contain a list of prioritised product groups for the adoption of product requirements and a timetable for the adoption of those requirements. The working plan will cover a period of at least three years and the Regulation states that the first plan will prioritise the following product groups: iron and steel; aluminium; textiles, in particular garments and footwear; furniture, including mattresses; tyres; detergents; paints; lubricants; chemicals; energy-related products; and information and communication technology products and other electronics.
In setting product requirements, the European Commission uses preparatory studies and consultations with stakeholders. Stakeholders are involved through an eco-design forum.
When the delegated acts enter into force, manufacturers must ensure that their products are designed and manufactured in accordance with the performance requirements laid down in the delegated act, and are accompanied by the required information, including the digital product passport. According to the Regulation, there should, in principle, be at least 18 months between the entry into force of the delegated acts and their application.
Manufacturers may then place a product on the market only after a conformity assessment has been carried out. In principle, manufacturers themselves are responsible for this assessment. The delegated act will lay down the procedure for such an assessment. Obligations also apply to other economic operators, such as importers, distributors and traders. Importers, for example, must ensure that the products they place on the internal market comply with the established performance and information requirements, and retailers must ensure that the digital product passport is easily accessible to customers.
If no delegated acts have been adopted (yet) for a specific product group, market participants can also submit self-regulation measures to the European Commission. Such measures must contain, among other things, specific product requirements and an objective monitoring plan in addition to a list of signatories. Self-regulation measures apply only to the signatories of the measure.
Destruction of unsold consumer products
The Regulation also contains rules for the destruction of unsold consumer products. These rules follow directly from the Regulation. Companies must first of all take measures to prevent the need to destroy unsold consumer products. Businesses must furthermore disclose information on unsold consumer products, including the number of unsold products discarded per year and the reasons why products are discarded. This obligation does not apply to micro and small enterprises and will apply to medium-sized enterprises from 19 July 2030.
The Commission furthermore has the power to impose specific bans on the destruction of unsold goods. This has already been done for certain clothing and footwear listed in Annex VII to the Regulation. From 19 July 2026, the destruction of these products will be prohibited. This rule does not apply to micro and small enterprises, and will apply to medium-sized enterprises from 19 July 2030. The Commission is empowered to adopt exceptions to this rule in delegated acts.
Green public procurement
Finally, the Regulation allows the European Commission to set certain 'green' minimum requirements for public contracts covered by the European procurement directives. These requirements may consist of technical specifications, award criteria, contract performance conditions or targets – for instance that bidders' products meet specific carbon footprint requirements.
Sanctions for non-compliance
Member States are required to set their own sanctions for non-compliance with the obligations arising from the Regulation and delegated acts, in any event including fines and temporary exclusion from public procurement procedures. Economic operators are furthermore liable for loss incurred by consumers when a product does not comply with product requirements.
Conclusion
The new Ecodesign Regulation aims to accelerate the transition to a circular economy and offers the possibility to regulate all conceivable sustainability aspects of designated product groups. The current legal framework for products will thus increase significantly in the coming years, and many manufacturers, distributors and importers are expected to be affected. This will have implications for product design, and will also create more administrative burdens due to information requirements. The exact requirements will be laid down in delegated acts in the coming years. We will of course keep you informed of these developments.
