The European Commission presented the Sustainable Products Initiative
At the end of March, the European Commission (Commission) present the Sustainable Products Initiative (SPI) as part of a “Circular Economy Package I”, as well as a Sustainable Textiles Strategy, and proposals for a new directive empowering consumers for the green transition (please see Sustainability Outlook March 2022), and one new regulation on construction products. In his new circular economy action plan (CEAP 2.0) of March 2020, the Commission had planned to adopt the SPI in 2021.
The Commission aims tomake sustainable products the normand reduce the negative environmental impacts of the product life cycle, while benefiting from efficient digital solutions, establishing a framework for eco-design requirements, creating an EU digital product passport and combating destruction unsold consumer products.
In particular, the SPI includes the proposal for a regulation on ecodesign for sustainable products (ESPR), which would repeal the current Ecodesign Directive 2009/125. It establishes a horizontal framework and extends the scope of the Ecodesign Directive beyond energy-related products, i.e. beyond any product having an impact on energy consumption. energy when using it. The new regulation would apply to all physical goods, including components and intermediate products, with the exception of food, feed, veterinary drugs and products, live plants and animals and products of human origin. According to the Commission’s explanatory memorandum, the ESPR is intended to deal with products which are not covered by existing legislation or where such legislation does not sufficiently address sustainability, and ecodesign requirements in acts delegates it will adopt cannot replace the requirements laid down in legislative acts (of the Council and of the European Parliament).
The proposed regulation provides a framework for the Commission to adopt delegated acts with specific requirements for a product or a group of products, in line with the approach of the current Ecodesign Directive. It would instruct the Commission to adopt a work plan with a list of products for which it plans to adopt such delegated acts, covering at least three years, thus providing some predictability. The Commission should prioritize products according to their potential contribution to EU climate, environmental and energy objectives, and to improve aspects of the product without disproportionate costs for the public and economic operators. The Commission declared that it has previously identified textiles, furniture, mattresses, tires, detergents, paints, lubricants and intermediate products such as iron, steel or aluminum as suitable candidates for the first plan of ESPR work. It plans to prepare and adopt up to 18 new delegated acts between 2024 and 2027 and 12 new delegated acts between 2028 and 2030. In its proposal, the Commission foresees budgetary implications, as it would need significantly more staff to implement the ecodesign framework. It estimates that it will need to increase its dedicated staff from the current 14 to 44 in 2023 and up to 54 in 2027.
In principle, each delegated act will provide for:
Performance requirements to which products must comply. These include ecodesign requirements for sustainability; reliability; reusability; scalability; repairability; possibility of maintenance and refurbishment; presence of substances of concern; energy consumption or energy efficiency; resource utilization or resource efficiency; recycled content; possibility of remanufacturing and recycling; possibility of recovering materials; environmental impacts, including carbon and environmental footprint; and expected waste generation.
Information requirements for all these aspects of sustainability. Delegated acts should include requirements that will allow the tracking of all substances of concern throughout the life cycle of products, unless such tracking is already enabled by another delegated act under the RPES. The delegated acts will also determine the procedures for making the required information available: on the product, its packaging, its labels, in a user manual, on a website or in the digital product passport (DPP). They must indicate the type of data carrier to be used and the duration for which the DPP must be available (unless a category of products is exempt from the use of the DPP).
According to the proposal, the DPP should not replace but complement non-digital forms of information transmission. The Commission may exempt products from the requirement to have a PLR, in particular where another EU law provides for a system of providing information in digital form.
The Commission proposes to define substances of concern as substances which (a) meet the criteria and have been identified as substances of very high concern (SVHC); (b) whose classification is harmonized under CLP Regulation 1272/2008 regarding specific hazard classes; or (c) adversely affect the reuse and recycling of product materials. – In particular, the last alternative could give rise to many discussions.
The proposal allows the Commission to formally recognize industry-designed self-regulation as an alternative to delegated acts (under certain conditions and following a certain procedure).
In addition, economic operators disposing of unsold consumer products should disclose the number of these products per year, the reasons for their disposal and information on the quantity of (these) products they have delivered to the preparation for reuse, remanufacturing, recycling, energy recovery and disposal. The proposal itself would not outright ban this practice. On the contrary, it would empower the Commission to prohibit the destruction of certain unsold products by means of delegated acts. Small and medium-sized enterprises (SMEs) would be exempted from the transparency requirement as well as from these prohibitions, unless the Commission decides otherwise, in particular to prevent circumvention by large companies.
Businesses should not expect immediate complete and clear requirements from this proposal, nor consider it an “empty shell”. Rather, they should understand it as a framework within which future requirements for their goods can be set, and follow and engage with the planned processes based on the priority the Commission will place on their products. Whether the proposal can make a big difference for a given business will largely depend on the combination of two aspects:
Is the company already used to the eco-design framework, because its products are energy-related? – Many products have an impact on energy consumption during use. However, for some of the product categories that the Commission wishes to favour, as well as for intermediate products, the ecodesign framework is new.
When will the Commission develop and adopt the delegated acts with concrete requirements for companies’ products? – Until now, the Commission has taken many years to develop ecodesign requirements for 31 groups of energy-using products.
Furthermore, even before the adoption of the proposal, they should ensure that EU Member States in the Council and in particular the European Parliament fill in what they might perceive as an empty shell with concrete demands , even before the Commission implements the process it has proposed. For example, in a first exchange of views between the committee responsible and the Commissionseveral parliamentarians wondered why the proposal did not simply prohibit the destruction of unsold consumer products.
The Commission has invited feedback on the proposal until June 3. It submitted it to the Council and the European Parliament for modification and adoption, in accordance with the ordinary legislative procedure. The Commission plans to launch a public consultation on the product categories for the first ESPR work plan by the end of 2022.
© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XII, Number 108