Explanatory Memorandum to COM(2022)143 - Amending directives 2005/29/EC, 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2022)143 - Amending directives 2005/29/EC, 2011/83/EU as regards empowering consumers for the green transition through better ...
source COM(2022)143 EN
date 30-03-2022


1. CONTEXT OF THE PROPOSAL

1.1.Reasons for and objectives of the proposal

The Treaty on the Functioning of the European Union (Articles 114 and 169 TFEU) and the Charter of Fundamental Rights (Article 38) require a high level of consumer protection in the EU. EU consumer legislation also contributes to the proper functioning of the single market. It aims to make business-to-consumer relations fair and transparent and ultimately support the welfare of European consumers and the EU economy.

This proposal aims at enhancing consumer rights by amending two directives that protect the interest of consumers at Union level: the Unfair Commercial Practices Directive 2005/29/EC 1 and the Consumer Rights Directive 2011/83/EU 2 . More specifically, the proposal aims to contribute to a circular, clean and green EU economy by enabling consumers to take informed purchasing decisions and therefore contribute to more sustainable consumption. It also targets unfair commercial practices that mislead consumers away from sustainable consumption choices. Furthermore, it ensures a better and more consistent application of EU consumer rules.

The proposal was one of the initiatives set out in the New Consumer Agenda 3 and the Circular Economy Action Plan 4 and follows up on the European Green Deal 5 . Empowering consumers and providing them with cost-saving opportunities is a key building block of the sustainable product policy framework. This is to be achieved through the improved participation of consumers in the circular economy, in particular by providing better information on the durability and reparability of certain products to consumers before concluding the contract and stepping up the protection of consumers against unfair commercial practices that prevent sustainable purchases, such as:

·greenwashing practices (i.e. misleading environmental claims),

·early obsolescence practices (i.e. premature failures of goods), and

·the use of unreliable and non-transparent sustainability labels and information tools.

More precisely, the proposal aims at:

·Providing information on the existence and length of a producer’s commercial guarantee of durability for all types of goods, or the absence of such guarantee in case of energy-using goods.

·Providing information on the availability of free software updates for all goods with digital elements, digital content and digital services.

·Providing information on the reparability of products, through a reparability score or other relevant repair information, where available, for all types of goods.

·Ensuring that traders do not mislead consumers about environmental and social impacts, durability and reparability of products.

·Ensuring that a trader can make an environmental claim related to future environmental performance only when this involves clear commitments.

·Ensuring that a trader cannot advertise benefits for consumers that are considered as a common practice in the relevant market.

·Ensuring that a trader can only compare products, including through a sustainability information tool, if they provide information about the method of the comparison, the products and suppliers covered, and the measures to keep information up to date.

·A ban on displaying a sustainability label which is not based on a certification scheme or not established by public authorities.

·A ban of generic environmental claims used in marketing towards consumers, where the excellent environmental performance of the product or trader cannot be demonstrated in accordance with Regulation (EC) 66/2010 (EU Ecolabel), officially recognised eco-labelling schemes in the Member States, or other applicable Union laws, as relevant to the claim.

·A ban on making an environmental claim about the entire product, when it actually concerns only a certain aspect of the product.

·A ban on presenting requirements imposed by law on all products within the relevant product category on the Union market as a distinctive feature of the trader’s offer.

·A ban of certain practices related to the early obsolescence of goods.

These measures are needed to update existing consumer law to ensure consumers are protected and can actively contribute to the green transition. The Consumer Rights Directive currently requires traders to provide consumers with information on the main characteristics of the goods or services. It includes specific information requirements about the existence of the legal guarantee of conformity, as well as additional commercial guarantees. However, as there is no requirement to provide information on the absence of commercial guarantees of durability, the Directive does not incentivise producers sufficiently to provide such guarantees to consumers. Research shows that where consumer products are offered with a commercial guarantee, the information on such commercial guarantees, and the way that consumers are being charged, is often unclear, imprecise or incomplete, making it difficult for consumers to compare between products and to distinguish the commercial guarantee from the (compulsory) legal guarantee 6 . This proposal will address this issue by ensuring that consumers are provided with information on the existence of a commercial guarantee of durability of more than two years, covering the entire good, whenever such information is made available by the producer.

Furthermore, the Directive does not contain specific requirements to provide information to consumers on the reparability of goods. Rather, it requires only information on ‘after sale services’ to be provided on a ‘where applicable’ basis. This information, which would help promote the repair of goods and therefore be particularly valuable in helping consumers contribute to a circular economy, is largely missing at the point of sale. Recent studies show that up to 80% of EU consumers claim to have difficulty in finding information on how easy it is to repair a product 7 .

The general rules in the Unfair Commercial Practices Directive on misleading practices can be applied to greenwashing practices when they negatively affect consumers, using a case-by-case assessment. However, there are no specific rules in the Directive or in its Annex I (the blacklist) defining such practices as unfair in all circumstances. Recent screening of websites by Consumer Protection Cooperation Network authorities to detect misleading environmental claims confirmed there is a need to strengthen the rules to facilitate enforcement in this area. Furthermore, a recent Commission study assessed 150 environmental claims and found that a considerable share (53.3%) of them provide vague, misleading or unfounded information on products’ environmental characteristics across the EU and in a wide range of product groups (both in advertisement as well as on the product) 8 .

The same situation exists for early obsolescence cases. The lack of specific rules and the need to assess the concrete effects of the practice on consumers makes it difficult to enforce the Directive in this area. This is borne out by the fact that, in their reply to the Open Public Consultation consulted in preparation of this proposal, 76% of respondents mentioned that they had experienced an unexpected failure of a product in the past 3 years 9 .


1.2.Consistency with existing rules

Directive (EU) 2019/771 10 (Sale of Goods Directive) promotes durability of goods through the legal guarantee, which provides certain rights to consumers during a minimum two-year period, which can be extended by Member States under certain conditions. It also provides for conditions under which a producer may offer a commercial guarantee of durability to a consumer.

This proposal will increase transparency for consumers as regards commercial guarantees and will thereby also incentivise producers to offer commercial guarantees of durability longer than two years by obliging traders to provide information at the point of sale on the existence (or absence in the case of energy-using goods) and length of the commercial guarantees of durability provided by producers.

Both the Sale of Goods Directive and the Digital Content Directive 11 ensure consumers are supplied with software updates so that a product remains in conformity for the duration of the contract, or alternatively for a period of time which the consumer might reasonably expect.

However, the comparability of products at the point of sale based on the availability of software updates is not addressed. This proposal will provide for an obligation to inform consumers before concluding the contract on the existence of software updates and the period for which the producer commits to provide them, when this information is provided by the producer. When there is already a commercial guarantee of durability offered for longer than two years, the information obligation for traders only remains for software updates when the duration is longer than the duration of the commercial guarantee of durability, to avoid unnecessary information for consumers.

As this proposal amends existing EU consumer law directives, its provisions will be able to rely on the full spectrum of enforcement mechanisms in existing EU consumer law, recently strengthened by the Better enforcement and modernisation Directive 12 , the Representative Actions Directive 13 and the revised Consumer Protection Cooperation Regulation 14 .

1.3.Consistency with other EU policies

With the exception of certain derogations, the two consumer law directives amended by this proposal, apply across all economic sectors. Due to their general scope, they apply to many aspects of business-to-consumer transactions that may also be covered by other, more specific EU legislation in different areas. The interplay between the different instruments of Union law is regulated by the lex specialis principle. Under this principle, the general consumer law directives apply whenever the relevant aspects of business-to-consumer transactions are not regulated by more specific provisions of EU law. Thus, the general consumer law directives work as a ‘safety net’, ensuring that a high level of consumer protection can be maintained in all sectors, complementing and filling gaps in sector-specific Union law.

Two other EU-level initiatives would complement this proposal: the Green Claims initiative and the Sustainable Products initiative. The objective of the Green Claims initiative will be to introduce further requirements in relation to environmental claims made about products and organisations, both when made by businesses towards consumers and by businesses towards other businesses.

The Sustainable Products initiative (SPI) builds on the current Eco-design Directive 15 in order to introduce sustainability requirements for products sold in the EU. The three initiatives are mutually consistent and complementary.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

·Legal basis

Consumer protection falls within the joint remit (‘shared competence’) of the EU and its member countries. As stipulated in Article 169 of the Treaty on the Functioning of the EU (TFEU), the EU must help protect the economic interests of consumers and promote their right to information and education, to safeguard their interests. This proposal is based on Article 114 which in accordance with Article 169(2)(a) is the legal basis for adoption of measures that contribute to attainment of objectives of Article 169 in the context of the completion of the internal market.

In addition to pursuing single market and consumer protection objectives, the proposal will also pursue a high level of environmental protection by unlocking opportunities for the circular, clean and green economy. As these environmental benefits are complementary to the primary objectives of consumer protection and completion of the single market, Article 114 TFEU on internal market completion, with due regard to Article 169 TFEU remains the appropriate legal basis.

·Subsidiarity (for shared competence)

This proposal amends EU consumer protection rules, whose adoption has been deemed necessary and in line with the principle of subsidiarity. A better functioning single market cannot be achieved by national laws alone. EU consumer protection rules become increasingly relevant as the single market deepens, and the number of EU consumer transactions increases between Member States. The problems addressed by these proposed amendments are EU-wide problems with the same causes. Therefore, only action taken at EU level will be effective.

Within the EU, the volume and intensity of cross-border trade are high enough to make the efficient functioning of the single market vulnerable to inconsistent — or even merely divergent — policy choices by Member States. Moreover, traders can reach consumers across Member States' borders. This can create problems that national lawmakers and regulators are ill placed to address adequately by acting alone.

In the absence of EU-level action, national initiatives, while bringing certain benefits to consumers and the national markets, could lead to a fragmentation of the single market, in turn bringing legal uncertainty and raising compliance costs.

Directive 2005/29/EC ensures full harmonisation of national rules on unfair commercial practices that harm consumers' economic interests. Directive 2011/83/EU in principle provides full harmonisation of rules on pre-contractual information requirements.

Any new national legislation within the scope of these Directives would go against the fully harmonised legal framework. This proposal helps alleviate the difficulties faced by national authorities in enforcing the existing principle-based rules in Directive 2005/29/EC in such complex areas as misleading environmental claims, early obsolescence practices and non-transparent sustainability labels and sustainability information tools. By specifying further when and how such practices would qualify as unfair, it would increase the effectiveness of consumer protection within the EU.

This proposal also amends Directive 2011/83/EU by requiring traders to provide information on the durability and reparability of products before concluding a contract, to ensure consumers can make better-informed purchasing choices. This will ensure consumers can benefit from such information when buying products in the single market.

·Proportionality

The measures in the proposal are proportionate to the objectives of enabling informed purchasing decisions by consumers, to promote sustainable consumption, eliminate unfair commercial practices by traders that cause damage to the sustainable economy and lead consumers away from sustainable consumption choices, and ensuring a better and more consistent application of EU consumer protection rules.

The requirement to provide information about the presence of a producer’s commercial guarantee of durability of more than two years is only needed when a producer makes this information available to the trader. Moreover, for energy-using goods, consumers should also be informed of the fact that the producer has not made that information available. Traders are only subject to this requirement in relation to energy-using goods for which durability can be reliably estimated and about which consumers are mostly interested to receive this information.

For goods with digital elements, the provision of information about available software updates is required only when updates are supplied for a period longer than the period covered by the producer’s commercial guarantee of durability, and when such information is provided to the trader by the producer. Furthermore, such information should only be provided in case of a single act of supply of the digital elements in question.

For digital services and digital content, the provision of information about available software updates is required only when such information is provided to the trader by the provider when the provider is different from the trader. Furthermore, such information should only be provided in case of a single act of supply of the digital service or content in question.

Providing information on the reparability of products through a reparability score or other relevant repair information is required at the point of sale only if a reparability score is already established for that product under EU law, or whenever other relevant repair information is made available by the producer. Traders are not obliged to inform consumers at the point of sale if no such information is available.

The ban on generic environmental claims used in marketing towards consumers is expected to bring significant benefits for consumers while limiting the burden on traders. Traders are allowed to make generic environmental claims in cases where the excellent environmental performance by products or traders can be demonstrated in accordance with Regulation (EC) 66/2010 (EU Ecolabel), by officially recognised eco-labelling schemes in the Member States in accordance with Article 11 of Regulation (EC) 66/2010, or in accordance with other applicable Union laws.

The ban on making an environmental claim about the entire product when it actually concerns only a certain aspect of the product is also expected to bring significant benefits for consumers while clarifying the rules for traders, ensuring a level playing field among them. It will allow traders to continue to make environmental claims about a certain aspect of a product as long as it is made clear to the consumer that the claim relates to a certain aspect and not to the whole product.

The ban on practices related to the early obsolescence of products is targeted at specific and well defined existing practices and aims at ensuring legal certainty for traders and facilitating enforcement, as enforcement authorities will not be required to prove that a product has been designed for early obsolescence, with the intention of stimulating the purchase of a new model.

·Choice of instrument

As this proposal amends two existing Directives, the most appropriate instrument is a directive.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

·Ex-post evaluations/fitness checks on existing legislation

In 2017, the EU Consumer and Marketing Law and the Consumer Rights Directive underwent a fitness check and evaluation, respectively. The findings from this exercise pointed primarily to the need to improve awareness and enforcement of the rules and opportunities for consumers to seek redress, to make the best of the existing legislation, and highlighted a limited range of necessary changes due to digitalisation.

Given the focus on enforcement and digitalisation, there were no specific conclusions on the contribution of EU consumer law to sustainable consumption, an issue which gained further political prominence some years later with the announcement of the European Green Deal. Nevertheless, whenever possible and relevant, this instrument draws on the findings and conclusions collected in the 2017 exercise 16 .

·Stakeholder consultations

In preparing this proposal, the Commission consulted with stakeholders via:

–a feedback mechanism on the inception impact assessment;

–an online public consultation;

–targeted consultations with key stakeholders, consisting of about 150 in-depth interviews with the main groups concerned by the initiative: national authorities, EU and national business associations and EU and national consumer associations;

–computer-assisted telephone interviews with over 100 companies;

–an online consumer survey of almost 12 000 consumers in all EU countries;

–four expert workshops with different stakeholder groups.

Contents

1.

The online Open Public Consultation


This open public consultation found that verifying the reliability of environmental claims about products was the biggest obstacle to improved consumer participation in the green transition and towards more sustainable consumption behaviour. Consumer organisations were more likely than business associations to identify this as an obstacle.

Most respondents had experienced the unexpected failure of a product in the last three years. ICT products were identified as most problematic, followed by small household appliances and clothing and footwear.

‘Information about the reparability of the product’ was identified as the option most likely to enable consumers to choose more sustainable products and participate in the circular economy. This was strongly favoured by public authorities and citizens, but not by companies/business organisations, who instead favoured the provision of ‘information on the product’s life-cycle environmental and climate footprint’. This was also rated as the second-best option overall.

Providing better information on products’ durability/lifespan was identified as the best option to empower consumers in the green transition. This was strongly favoured by consumer organisations and citizens, but not by company/business organisations or business associations, who favoured ‘raising awareness about the role of consumers on circular economy and green transition’.

2.

Targeted consultation


In this consultation – conducted to expand on the feedback collected in the online Open Public Consultation, almost all stakeholders (except those representing industry) agreed with the view that consumers are not given, or do not have sufficient access to information on (i) products’ environmental impact, (ii) the lifespan of goods, (iii) product-specific features that may lead to early failure, and (iv) the availability of repair services spare parts and software updates/upgrades.

Most consumer organisations considered that consumers are subjected to ‘greenwashing’ and that ‘premature obsolescence’ occurs to some extent. Representatives from industry tended to disagree. The proliferation of sustainability labels was also identified as a problem by most stakeholder groups.

3.

Computer-assisted telephone interview survey


Manufacturers and retailers were asked to indicate the scale of impact and cost of introducing various legal requirements on their organisation. The responses for each requirement were as follows:

·‘Provide information on aspects in the product’s design that can cause its early failure’ would have the biggest impact and would be most costly.

·‘Stronger consumer protection against planned (intentional) obsolescence practices’ would have the lowest impact

·‘Obligation to provide information on the duration of the commercial guarantee for all products’ and the ‘Obligation to expressly inform the consumer that no commercial guarantee of durability is provided for the given product’ would be least costly.

4.

Online consumer survey


The survey found that consumers appear to be open to participating in the green transition. Most respondents were unwilling to pay for information (e.g. via an app) on the durability and reparability of ‘durable goods’. Around half of respondents said they were willing to pay extra on top of the initial price for a product that lasts longer without having to be repaired, and a similar proportion said they were willing to pay extra for an identical product that lasts longer with minor/reasonable repairs. An even larger share said they were willing to pay extra for an identical product covered by a commercial guarantee that would cover the cost of repairs. The ‘Perceived higher price of environmentally-friendly products’ was identified as the main obstacle that prevents consumers from adopting more sustainable behaviours and ‘Providing better information on products’ durability/lifespan’ and ‘Providing better consumer information on the life-cycle environmental and climate footprint of the product’ were identified as the most effective options to help consumers choose more environmentally sustainable products.

5.

Expert workshops


6.

1st workshop


Collected views on the extent of the problems and examples of effective action. It validated many of the findings from the other strands of consultation. It was largely agreed that greenwashing occurs and that information on product durability can be difficult to obtain. Doubts were raised that products are intentionally designed to fail early.

7.

2nd workshop


Collected views of industry associations on how digital means can be used to provide product information. It highlighted some of the opportunities that digital tools (e.g. QR codes, e-labels) offer for conveying mandatory product information and simplifying product labels.

It also highlighted some of the challenges, particularly for SMEs who may need financial support to implement these tools and for vulnerable consumers who do not have access to, or who cannot use, them.

8.

3rd workshop


Collected feedback on possible options to address the various problems. The workshop participants reiterated many of the same points that were raised in the previous consultation activities and confirmed support for certain policy options under examination.

9.

4th workshop


Collected the views of consumer protection enforcement authorities (CPC authorities) on enforcement challenges. Participants highlighted the difficulty of proving intent with regard to planned obsolescence.

Public authorities noted that they lack technical expertise to be able to enforce environmental claims, and were divided on whether enforcement of the current rules in the Unfair Commercial Practices Directive is effective.

·Impact assessment

This proposal is based on an impact assessment 17 . The Commission’s Regulatory Scrutiny Board (RSB) first issued a negative opinion (with comprehensive comments) on 5 February 2021.

After a significant revision of the initial draft, the RSB provided a positive opinion with further comments on 17 September 2021 18 . Annex I of the impact assessment explains how the RSB comments were addressed.

The impact assessment identifies two problems divided into a number of sub-problems. The two problems identified are:

Consumers lack reliable information at the point of sale to make environmentally sustainable consumption choices.

Consumers face misleading commercial practices related to the sustainability of products.

Problem 1 is further broken down into the sub-problems:

10.

1.1) Lack of reliable information on the environmental characteristics of products


11.

1.2) Lack of reliable information on the lifespan of goods


1.3) Lack of reliable information about products’ reparability

Problem 2 is further broken down into the sub-problems:

2.1) Consumers are sold products that do not last as long as they could or consumers expect (“early obsolescence”)

2.2) Consumers are faced with unclear or poorly-substantiated environmental claims (‘greenwashing’) from companies

2.3) Consumers are faced with sustainability labels and digital information tools that are not always transparent or credible.

A number of policy options were considered for each individual sub-problem. On the basis of a multi-criteria analysis, complemented by a (partial) cost-benefit analysis, and a qualitative assessment of the proportionality of the various options considered, a combination of five preferred policy options were proposed to address these problems:

Providing information on the existence or absence of information about the existence of a producer’s commercial guarantee of durability and of the period of time during which free software updates are provided (to address sub-problem 1.2)

Providing a reparability score, or other relevant repair information, where applicable/available (to address sub-problem 1.3)

Ban on certain identified practices associated with early obsolescence (to address sub-problem 2.1)

Ban on unfounded generic or vague environmental claims and setting criteria for assessing the fairness of environmental claims to ensure their transparency and credibility towards consumers (to address sub-problem 2.2)

Setting criteria for assessing the fairness of sustainability labels and digital information tools, to ensure they are transparent and credible for consumers (to address sub-problem 2.3)

Sub-problem 1.1 (lack of reliable information on products’ environmental characteristics)

It was considered that introducing mandatory information requirements on environmental characteristics would best be done by sectoral legislation, as the characteristics in question differ significantly according to product category. The impact assessment therefore did not propose a preferred policy option to address this sub-problem.

12.

Sub-problem 1.2 (lack of reliable information on the lifespan of goods)


The preferred option would ensure consumers are better informed about the durability of the goods they purchase, as the producer’s commercial guarantee of durability is an excellent proxy for the durability of the good.

Furthermore, the obligation on traders to inform the consumer about the length of the guarantee, or the absence of a guarantee if that is the case, would stimulate traders to compete on the provision and length of such guarantees, thus indirectly stimulating the manufacturing of products with a longer lifespan.

Another option considered to address this sub-problem was an obligation to inform consumers about the expected lifespan of goods. However this was not selected as it was not deemed feasible to calculate an expected lifespan in a standardised manner for all the product types in scope.

Sub-problem 1.3 (lack of reliable information about products’ reparability)

The preferred policy option would ensure consumers will receive reliable information at the point of sale about the reparability of a good in the form of a reparability score, if one exists for that particular product category and is mandated under Union law.

If no such reparability score is applicable or available, this option would ensure consumers are provided with other relevant repair information (where available), such as the availability of spare parts (including a procedure for ordering them) or repair manuals.

13.

Sub-problem 2.1 (products not lasting as long as they should)


The preferred option would ensure consumers are better protected against from goods or services being marketed without disclosing that they have been designed to become obsolete earlier than the consumer might expect.

The designation of specific practices as constituting ‘early obsolescence practices’ will facilitate the enforcement work of consumer protection authorities.

Another option considered to address this sub-problem was collecting evidence on early failures of products identified by authorised bodies. However this option was not selected as it was not deemed likely to bring significant benefits to consumers.

14.

Sub-problem 2.2 (unclear or unfounded environmental claims)


The preferred option would ensure consumers are protected from greenwashing, since a certain standard will need to be met by those making such claims. It would also facilitate enforcement by consumer protection authorities.

15.

Sub-problem 2.3 (unclear/unfounded sustainability labels/digital information tools)


The preferred option would ensure consumers are protected from being misled by such labels and tools.

Another option considered to address this sub-problem was pre-approval for sustainability labels and digital information tools via an EU body. However this option was not selected as the burden on traders was deemed to be disproportionate.

The combination of the preferred policy options is expected to increase consumer welfare by at least EUR 12.5 – 19.4 billion over a 15 year period (around EUR 1 billion per year on average). It will also bring benefits to the environment, with a partial estimation of the total saved CO2e of 5 - 7 MtCO2e over a 15 year period. At the same time, businesses will have to adjust, which is expected to cost between EUR 9.1 – 10.4 billion. This represents an average one off cost per company of between EUR 556 - 568, followed by an annual recurrent cost of between EUR 64 - 79 for the period covered. On the other hand, businesses will also experience very important benefits related to level playing field as businesses that currently mislead consumers would have to align their practices with those that are truly sustainable. The enforcement of the preferred options on the part of public administrations is expected to cost on average about EUR 440 000 – 500 000 per year per Member State.

In order to ensure full coherence with other Commission initiatives in preparation, it was decided that some of the elements of the preferred policy options selected in the impact assessment to tackle sub-problem 2.2 (unclear or unfounded environmental claims) and sub-problem 2.3 (unclear/unfounded sustainability labels/digital information tools) will not be implemented via this initiative but via the other initiatives.

·Regulatory fitness and simplification

The fitness check report published in 2017 showed that the general EU consumer legislation is not particularly burdensome, either in absolute terms or when compared to other areas of EU regulation 19 . Therefore, given the benefits of EU legislation in protecting consumers and facilitating the single market, these evaluations identified only a limited scope for burden reduction.

Given the focus on enforcement and digitalisation, there were no specific conclusions about the contribution made by EU consumer law to sustainable consumption. Nevertheless, whenever possible and relevant, this instrument draws on the findings and conclusions collected in that exercise.

·Fundamental rights

16.

The proposal is in accordance with Article 38 of the Charter of Fundamental Rights, according to which the EU must ensure a high level of consumer protection. This will be ensured by


(a)improving the reliability of durability and reparability information provided at the point of sale, and

(b)addressing misleading commercial practices related to greenwashing and the use of unreliable and non-transparent sustainability labels and sustainability information tools, and early obsolescence.

The clarification of what constitutes an unfair commercial practice as regards the making of environmental claims and the use of sustainability labels and sustainability information tools, and early obsolescence, will contribute to the implementation of Article 16 of the Charter, which guarantees the freedom to conduct a business in accordance with Union law and national laws and practices.

Finally, by empowering consumers to make more environmentally sustainable purchasing decisions, the proposal respects the right to a high level of environmental protection and the improvement of the quality of the environment, set out in Article 37 of the Charter.


4. BUDGET IMPLICATIONS

There are no consequences for the EU budget.

5. OTHER ELEMENTS

·Implementation plans and monitoring, evaluation and reporting arrangements

The Commission will submit a report on the application of this Directive to the European Parliament and to the Council no later than 5 years after its adoption. This report will assess the application of the Directive.

·Explanatory documents (for directives)

As the proposal introduces specific amendments to two existing directives, Member States should either provide the Commission with the text of the specific amendments to national rules or, in the absence of such amendments, explain which specific national law provision already implements the amendments provided in the proposal.

·Detailed explanation of the specific rules in the proposal

17.

Article 1 - Amendments to Directive 2005/29/EC


Article 1 of the proposal amends Directive 2005/29/EC by updating the list of product characteristics about which if a trader deceives a consumer it can be considered a misleading action. Two new commercial practices are also included in the list of actions which are to be considered misleading if they cause or are likely to cause the average consumers to take a transactional decision that they would not have otherwise taken. One new item is added to the list of information to be regarded as material in the case of specific commercial practices, the omission of which may cause the commercial practice in question to be regarded as misleading. Furthermore, the list of commercial practices which are considered unfair in all circumstances is extended to practices associated with the early obsolescence of products and greenwashing.

The list of product characteristics about which a trader should not deceive a consumer in Article 6(1) of Directive 2005/29/EC is amended to include ‘environmental or social impact, ‘durability’ and ‘reparability’. As regards the commercial practices to be considered misleading actions if they cause or are likely to cause the average consumers to take a transactional decision that they would not have otherwise taken, two additional practices are added in Article 6(2) of Directive 2005/29/EC:

–making an environmental claim related to future environmental performance without clear, objective and verifiable commitments and targets and an independent monitoring system.

–advertising benefits for consumers that are considered as a common practice in the relevant market.

In Article 7 of Directive 2005/29/EC, the list of information to be regarded as material in the case of specific commercial practices, the omission of which may cause the commercial practice in question to be regarded as misleading, is extended to include the following item:

–where a trader provides a service which compares products, including through a sustainability information tool, information about the method of the comparison, the products which are the object of the comparison and the suppliers of those products, and the measures to keep information up to date shall be regarded as material.

The ten additional commercial practices added to Annex I of Directive 2005/29/EC which are to be considered unfair in all circumstances are:

–Displaying a sustainability label which is not based on a certification scheme or not established by public authorities.

–Making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance relevant to the claim.

–Making an environmental claim about the entire product when it actually concerns only a certain aspect of the product.

–Presenting requirements imposed by law on all products in the relevant product category on the Union market as a distinctive feature of the trader’s offer.

–Omitting to inform the consumer that a software update will negatively impact the use of goods with digital elements or certain feature of those goods even if the software update improves the function of other features.

–Omitting to inform the consumer about the existence of a feature of a good introduced to limit its durability.

–Claiming that a good has a certain durability in terms of usage time or intensity when it does not.

–Presenting products as allowing repair when they do not or omitting to inform the consumer that goods do not allow repair in accordance with legal requirements.

–Inducing the consumer into replacing the consumables of a good earlier than for technical reasons is necessary.

–Omitting to inform that a good is designed to limit its functionality when using consumables, spare parts or accessories that are not provided by the original producer.

Article 2– Amendments to Directive 2011/83/EU

Article 2 of the proposal amends Directive 2011/83/EU as regards the pre-contractual information to be provided to consumers when concluding distance and off-premises contracts as well as contracts other than distance or off-premises contracts, in particular in regard to information on the durability and reparability of goods.

It also amends the Directive as regards the information of which consumers are to be made aware directly before placing their order, in the case of distance contracts to be concluded by electronic means.

As regards the pre-contractual information to be provided to consumers when concluding contracts other than distance or off-premises contracts, six additional items are added to the list under Article 5(1) of Directive 2011/83/EU, which comprises the information to be provided to the consumer in a clear and comprehensible manner.

These six additional items consist of:

–information on the existence and length, of a producer’s commercial guarantee of durability for all types of goods, when this information is made available by the producer;

–information that no information has been provided by the producer about the existence of a producer’s guarantee of durability for energy-using goods;

–the existence and length of the period during which the producer commits to providing software updates for goods with digital elements;

–the existence and length of the period during which the provider commits to providing software updates for digital content and digital services;

–the reparability score of the good as applicable under Union law;

–other repair information, should no reparability score be available at Union level – such as information on the availability of spare parts and a repair manual.

As regards the pre-contractual information to be provided to consumers when concluding distance and off-premises contracts, the same six items are added to the list under Article 6(1) of Directive 2011/83/EU (information to be provided to the consumer in a clear and comprehensible manner).

As regards the information consumers are to be made aware of directly before placing their order, in the case of distance contracts to be concluded by electronic means, information on the existence and length (or that no such information has been provided, in the case of energy-using goods) of a producer’s commercial guarantee of durability is added to the list of such information to be provided under Art 8(2) of Directive 2011/83/EU.