Explanatory Memorandum to COM(2022)142 - Framework for setting ecodesign requirements for sustainable products

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

dossier COM(2022)142 - Framework for setting ecodesign requirements for sustainable products.
source COM(2022)142 EN
date 30-03-2022


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The main objectives of this regulation are to reduce the negative life cycle environmental impacts of products and improve the functioning of the internal market. These objectives seek to resolve the problems and their causes analysed in the impact assessment. They reflect the fact that products are available on the internal market that generate unnecessary adverse environmental impacts. This Regulation also contributes to the objectives of EU industrial policy to boost the supply of and demand for sustainable goods, deliver on sustainable production, and ensure a level playing field for products sold on the internal market. Industry needs harmonised requirements applicable across the board, efficient means to comply with them, proper enforcement, reinforced market surveillance and customs controls based on a risk analysis 1 .

Products play a vital role in the lives of EU citizens and the number, range and variety of products on offer to us are constantly increasing. With the technological leaps that have taken place over past decades, our reliance on them has also increased: from the ICT products that kept us connected during the COVID-19 crisis, to the furniture and the appliances that help to run our homes on a daily basis. The free circulation of products is essential to ensuring the functioning of the internal market, which remains the foundation for EU companies’ competitiveness and for consumers’ choice.

By applying the Ecodesign approach to a very broad range of products and enabling it to set a wide range of targeted product requirements, this regulation seeks to address the most detrimental environmental impacts of products. It therefore lays down a framework for setting ecodesign requirements based on the sustainability and circularity aspects listed in the Circular Economy Action Plan 2 , such as product durability, reusability, upgradability and reparability, the presence of substances of concern in products, product energy and resource efficiency, recycled content of products, product remanufacturing and high-quality recycling, and for reducing products’ carbon and environmental footprints.

In doing so, it will contribute to achieving the EU’s overall climate, environmental and energy goals, while supporting economic growth, job creation and social inclusion. By making materials last for longer, ensuring their value is retained for as long as possible and boosting the use of recycled content in products, it will promote decoupling of economic development from natural resource use and reduction of material dependencies – thus fostering EU open strategic autonomy and resilience. Several recent events have reminded us of the possible vulnerabilities of global supply chains.

This regulation is part of a package of initiatives presented by the Commission relating to sustainable products and fostering sustainable product choices. The package includes targeted sectoral initiatives on textiles 3 and construction products 4 , which address products with most significant impacts on the environment and climate, and an initiative to empower the consumers in the green transition, through better protection against unfair practices and better information 5 . Finally, until this regulation is in place, the Commission will ensure work under the existing Ecodesign Directive continues, including via adoption of a new Ecodesign and Energy Labelling Working Plan for the period 2022–2024, addressing new energy-related products and updating and increasing the ambition of those already regulated.

• Consistency with existing policy provisions in the policy area

This regulation will broaden the scope of the Ecodesign Directive both in terms of products and new kinds of requirements. For reasons of legal clarity, the Ecodesign Directive should therefore be repealed. Given the wide scope of the proposed regulation, it is necessary to define in so far as possible how it relates to existing legislation applicable to the products covered, and to other initiatives linked to or relevant its goals. The aim is to prevent duplication so as to minimise the administrative burden for businesses and authorities.

The general approach is that this Regulation will set requirements where existing legislation does not, or where it insufficiently addresses environmental sustainability aspects. The general principle of law, lex specialis derogat legi generali, (where more specific rules will prevail over more general rules) will therefore apply. To be more specific, the approach covers two categories: product-specific legislation and legislation addressing horizontal aspects.

Product-specific legislation refers to legislation focused on a specific product or well-defined product group, often regulating mainly safety aspects (e.g. on batteries, toys, detergents and packaging). It is not feasible to provide specifications for every piece of existing product-specific legislation at the general level of this Regulation. However, before setting concrete requirements at product-specific level through measures under this Regulation, the Commission will assess in detail any potential overlaps or conflicts with existing legislation to avoid duplicating requirements and putting an excessive burden on businesses. As a matter of principle, this Regulation will only apply to products not covered by existing legislation, or when legislation does not sufficiently address the sustainability of those products. In addition, product-specific requirements under this Regulation will be included in delegated acts and as such cannot supersede requirements set through legislative acts such as directives or regulations (although they can be more specific), following the principle of the hierarchy of norms.

In relation to construction products in particular, whilst these will be in the scope of this Regulation, given the need to manage the strong interlinkages between their environmental and structural performance, including their health and safety, ecodesign requirements will be laid down under the revised Regulation (EU) No 305/2011 6 (the Construction Products Regulation), except for energy-related construction products, which are already regulated under the existing Ecodesign Directive.

Legislation governing horizontal aspects refers to legislation that addresses or can address horizontal aspects under this Regulation of a broad range of products, such as the REACH rules that govern chemicals and grant empowerments in relation to chemical substances in products. Where legislation already addresses or may address specific aspects covered by this Regulation in a more horizontal manner, there is the clear need and possibility to specify how this relates to this Regulation at a more general level. Similarly, this Regulation will also build upon the general framework set for market surveillance in the Market Surveillance Regulation, while tailoring the provisions where needed to the specific aims of the Initiative.

Please see Section 7.9 as well as Annex 14 to the impact assessment, which details how the Initiative interacts and is consistent with existing and emerging legislation.

Finally, the Energy Labelling Regulation will continue to apply in parallel to the proposed regulation to energy-related products. Coherence will be ensured. This means, for instance, that as a principle such products must only bear the energy label specified under the Energy Labelling Regulation.

• Consistency with other Union policies

This Regulation builds on several Union policies.

The bedrock for this initiative is the European Green Deal 7 , the growth strategy to transform the EU into a fair and prosperous society, with a modern, resource-efficient and competitive economy where there are no net emissions of greenhouse gases in 2050 and where economic growth is decoupled from resource use. The European Green Deal also announced the new industrial strategy for Europe and the Circular Economy Action Plan, published together in in March 2020.

The European Commission’s 2020 industrial strategy for Europe 8 sets out the EU’s overarching ambition to foster a ‘twin transition’ to climate neutrality and digital leadership. It echoes the European Green Deal in highlighting the leading role that Europe’s industry must play in this, by reducing its carbon and material footprint and embedding circularity across the economy. It underlines the need to move away from traditional models, and revolutionise the way we design, make, use and dispose of products. In 2021, the Commission published an update to the industrial strategy 9 , which reinforces the main messages of the 2020 strategy and provides a range of additional implementation tools.

The Circular Economy Action Plan (CEAP) aims, amongst other aspects, to stimulate the development of lead markets for climate-neutral and sustainable products, in the EU and beyond. To achieve this, it establishes a sustainable product policy framework, including measures in three broad areas: fostering sustainable product design; empowering consumers and public buyers; and promoting circularity in production processes 10 .

While the three areas of the sustainable product policy framework are synergetic with each other, this regulation focuses primarily on the measures set out under the first area (sustainable product design) that aim to make products fit for a climate-neutral, resource-efficient and circular economy, reduce waste and ensure that the performance of frontrunners in sustainability progressively becomes the norm. As announced in the CEAP, the core of this legislative initiative is to extend the scope of the Ecodesign Directive beyond energy-related products so that it covers the broadest possible range of products and helps achieve a circular economy.

The product requirements set out in this legislation should complement and strengthen the requirements set under other CEAP initiatives. In particular, the product requirements set in this legislation should help achieve the objectives and be in line with other measures on key value chains defined in implementation of the CEAP, such as the EU strategy for sustainable and circular textiles. Furthermore, the Empowering consumers for the green transition initiative will improve information on products at the point of sale in particular on their durability and reparability, and help prevent greenwashing and premature obsolescence. The upcoming Commission initiative on Green Claims will also complement measures in this legislation, by increasing the reliability, comparability and verifiability of environmental claims about products, via requirements that such claims be substantiated and verified using life-cycle analysis methods, including the Product Environmental Footprint method 11 . In addition, the objectives of this legislation will be further supported by the legislation on Corporate Sustainable Due Diligence 12 , in particular the environmental due diligence rules it lays down for companies.

Finally, the requirements will also contribute to achieving EU climate goals: they will synergise with and complement instruments with more direct climate focus 13 by going beyond the production of basic materials/basic material components to cover final products themselves. This will allow for taking action on negative impacts generated along the entire value chain (including the embedded emissions of a product throughout its lifecycle, or other negative consequences), directly supporting Green Deal objectives and consistent with the ‘do no significant harm’ principle.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The proposal is based on Article 114 of the Treaty on the Functioning of the European Union (TFEU), which is to be used for measures aiming at the establishment and functioning of the internal market. The Ecodesign Directive (which the Commission proposes to repeal by this regulation) was itself based on Article 95 of the Treaty establishing the European Community (now Article 114 TFEU).

The issues tackled by this initiative are related to the internal market, including the uneven playing field for companies attempting to implement more sustainable approaches or the fact current EU rules only partially cover sustainability aspects of products. This means that there is no comprehensive set of requirements to ensure that all products placed on the EU market become increasingly sustainable. As a result, the Member States have begun to adopt multiple approaches at national level (leading to internal market fragmentation) and the enforcement of current Ecodesign rules is insufficient and uneven.

The lack of sufficient and comprehensive internal market rules leaves room for initiatives developed by Member States or by industries that impair the functioning of the internal market by giving rise to potential barriers, fragmentation and incoherent approaches. In addition, in the absence of a comprehensive set of requirements defining product’s environmental sustainability, or ecodesign requirements, the same product considered sustainable in one Member State might not qualify as sustainable in another Member State. What’s more, recently adopted national legislation is likely to oblige manufacturers (and retailers) operating across EU borders to comply with a range of different national obligations varying from one Member State to another.

These new national obligations, ranging from information requirements on technical operations performed on refurbished electronic devices, on the duration of software compatibility in France, to reporting obligations on handling unsold durable goods in Germany, give clear indications of a trend to take regulatory action by setting ecodesign requirements on goods. As a consequence, without EU action, there will inevitably be an increase in national obligations and increased market fragmentation.

The problems outlined above are the rationale for basing this proposal on Article 114 TFEU.

• Subsidiarity (for non-exclusive competence)

The necessity test questions whether the objectives of a proposal can be sufficiently achieved by action taken by Member States alone. On this test, it is essential to put in place a harmonised set of rules to achieve a harmonised and well-functioning internal market for sustainable products across all Member States, and therefore a level playing field for businesses operating on the internal market. This includes product requirements and the obligation to provide reliable information to users.

Member States alone would not be able to enact measures of this scope without creating divergences in the requirements for business and obstacles to the free movement of products, regulatory burden and excessive costs for business. In addition, action taken by Member States alone would inevitably give rise to different tools that would render consumer choices more complicated. If Member States take individual action there would therefore be a high risk of ending up with different competing systems based on different methods and approaches, especially for products traded across the internal market. This fragments the market and is likely to lead to differing levels of awareness and information on the environmental performance of products across the EU and additional costs for companies trading across EU Member States.

The effectiveness test checks whether action at EU level is more effective than action at national level. On this test, only EU-level action can set harmonised product requirements and information requirements on sustainability aspects applicable across the EU, ensuring the free movement of goods and providing consumers with relevant and reliable information about sustainable characteristics and circular features of products in whatever Member State they are purchased. There is clear added value in setting requirements at EU level, as this will create a harmonised and well-functioning internal market across all Member States and, therefore, a level playing field for businesses operating on the internal market . With harmonised minimum and information requirements set at EU level, sustainable products and circular practices will be promoted in all Member States, creating a larger and more efficient market and hence greater incentives for industry to develop them. Finally, the size of the internal market provides a critical mass enabling the EU to promote product sustainability and influence product design and value chain management worldwide.

• Proportionality

The proposal does not go beyond what is necessary to provide a regulatory framework for the development of ecodesign requirements for the broadest possible range of products.

The Commission will continue the approach followed for the Ecodesign Directive of issuing implementing measures, based on impact assessments carried out in line with the Commission’s Better Regulation guidelines. Therefore it will carry out an analysis of the economic and environmental impacts of different options for each set of requirements. This will allow for proportionality to be maintained.

The proposal is designed as a flexible framework as a means of ensuring proportionality. For this reason, it will not set any criteria or targets for the requirements unless they are justified on the basis of a prior assessment. To ensure proportionality, each individual requirement will need to be justified before being applied to any product group. Setting requirements, criteria or targets at the level of well-defined product groups will enable a careful assessment of impacts. It will enable the Commission to take account of the added value and proportionality of setting requirements, targets or criteria depending on the inherent characteristics of the products, their manufacturing processes and their market situation.

• Choice of the instrument

A regulation will set direct requirements for all operators, thus providing the necessary legal certainty and scope for enforcement of a fully integrated market across the EU. A regulation also ensures that the obligations are implemented at the same time and in the same way in all 27 Member States.

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

• Ex-post evaluations/fitness checks of existing legislation

In March 2019, the Commission published a staff working document entitled Sustainable Products in a Circular Economy - Towards an EU Product Policy Framework contributing to the Circular Economy 14 . This examined the extent to which EU policies affecting products contribute to the transition to a circular economy, and where there is potential to make a stronger contribution. It found that there is no overarching, integrated EU policy instrument covering the sustainable production and consumption of all products and/or the availability and reliability of information on these products to consumers.

Though successive evaluations 15 of the Ecodesign Directive have confirmed that it is clearly relevant and effective as a regulatory tool, they identified potential to improve implementation and enforcement. These evaluations, for example, noted that ‘while it is broadly recognised that the energy efficiency aspects of the SCP/SIP action plan 16 and of EU resource efficiency policy can be served by the Ecodesign Directive and the implementing measures, is also suggested by some Member State representatives and by environmental NGOs that there have been missed opportunities as a result of the limited coverage in implementing measures of other environmental aspects’ 17 . The evaluation also highlighted the untapped potential of the Directive to address aspects beyond energy efficiency, concluding that ‘there may have been non-energy improvements that have not been addressed as a result of the product scope, policy choices or the underlying technical analysis’.

• Stakeholder consultations

In line with the Better Regulation guidelines, several consultation activities took place.

–Consultation on an inception impact assessment from 14 September to 16 November 2020 18 . 193 responses received.

–An open public consultation from 17 March to 9 June 2021. 626 responses received.

–A series of workshops from April to July 2021, on different topics related to Sustainable Product Initiative, widely attended by participants from several stakeholder groups.

–A survey of small and medium-sized enterprises from 26 April to 15 June 2021. 332 responses received.

–A second targeted survey for small and medium enterprises (SMEs) from 20 October to 4 November 2021. This drew primarily on the expertise of organisations representing SMEs. 35 replies received.

–Tailored questionnaires submitted to selected stakeholder representatives from 20 May to 9 June 2021.

–A number of stakeholder interviews conducted with selected stakeholder representatives.

Overall, the consultation activities demonstrated strong general support for a regulatory initiative covering product sustainability. Most stakeholders advocated for the initiative to cover a wide product scope and take a whole life cycle approach to product regulation. It indicated strong support to extend the scope of the current Ecodesign Directive, with general agreement that the sectors identified in the 2020 circular economy action plan should be prioritised. The feedback showed a preference (in particular from manufacturers/importers) for an approach that takes product specificities firmly into account. There is general agreement that the lack of clear, comprehensive and binding legislation, and the lack of trustworthy information are all barriers to increasing the availability of sustainable products on the EU market, as is uneven enforcement of ecodesign requirements. The idea to bring in a digital product passport is generally supported by clear majorities across all stakeholder groups, as are incentives and tools to stimulate demand for sustainable products. Stronger enforcement and market surveillance activities (e.g. inspections or audits) are seen as necessary to accompany implementation of this initiative.

Detailed conclusions from the stakeholder consultations are set out in Annex 2 to the impact assessment.

• Collection and use of expertise

The Commission awarded a contract to external experts to carry out a study to feed into the impact assessment accompanying this proposal. This study provided part of the data underlying the analysis of the policy options set out in that document, and in turn fed into the measures included in the current proposal. The external experts worked in close cooperation with the Commission throughout the different phases of the study.

• Impact assessment

The proposal is based on an impact assessment. After resolving the issues raised in the Regulatory Scrutiny Board’s negative opinion issued on 17 September 2021, the impact assessment received a positive opinion on 21 January 2022. In its final opinion, the Board asked for additional details on the choice of options, the method to be employed under the regulation and how the rules for digital product passports will be laid down in practice.

The main problem this initiative seeks to remedy, its related sub-problems, and the policy options identified are detailed in Sections 2 and 5.2 of the impact assessment. The preferred combination of options is described in detail in Section 7 of the impact assessment. Annex 10 to the impact assessment provides a summary overview of the costs and benefits of all sub-options analysed, while Annex 12 provides more information on the costs and benefits likely to be associated with the preferred combination of options. All these aspects are summarised in the executive summary accompanying the impact assessment.

Due to the framework architecture foreseen, exact costs stemming from the requirements are difficult to estimate with precision. Most will be incurred only in a second stage, following the enactment of the secondary legislation.

The dedicated impact assessments that will be done in connection to each delegated act in the future will assess in detail the impacts expected, including on third country operators, also in light of their WTO notification.

It should be noted that, due to the adoption of the Commission Proposal for a Directive on Corporate Sustainable Due Diligence 19 during the preparation of this initiative, it was deemed appropriate to exclude requirements on social aspects from the scope of this legislative proposal.

As specified in the legal text, an evaluation will take place after 8 years from the date of application of this Regulation. Among other aspects, this evaluation may consider the inclusion of social requirements in the regulatory framework.

• Regulatory fitness and simplification

This regulation is expected to create a level playing field for businesses operating on the internal market. The harmonised requirements proposed at EU level are likely to reduce overall compliance costs, given that they are likely to replace multiple existing or planned requirements at national level.

Producers that use more sustainable production and transparent supply chains are expected to gain EU market share and increase their competitiveness over producers that use less sustainable methods.

Though SMEs suggested that certain negative impacts may stem from some of the measures under the preferred combination of policy options identified in the impact assessment, many also expressed the belief that these can be offset and bring added value over time (due to reduced material expenditure, increased customer loyalty, better access to the market for greener products, reputational benefits etc.). In addition, the Commission has looked specifically at ways to mitigate the negative impacts on SMEs. These are detailed in Annex 19 to the accompanying impact assessment, and in specific provisions of the current proposal.

For consultation purposes, in continuation of the successful example of the existing Consultation Forum under the Ecodesign Directive, the proposal establishes an Ecodesign Forum with a balanced participation of Member States’ representatives and all interested parties such as industry, including small and medium-sized enterprises and craft industry, trade unions, traders, retailers, importers, environmental protection groups and consumer organisations. The Ecodesign Forum is limited to providing expertise to the Commission on the working plan and on the preparation of ecodesign requirements, before the Commission formally exercises its delegated powers. The Commission may set up an additional expert group to consult Member States on the delegated acts to be adopted under this Regulation, in accordance with the Interinstitutional Agreement of 13 April 2016 on Better Law-Making 20 .

The proposal also includes the creation of a digital product passport to electronically register, process and share product-related information amongst supply chain businesses, authorities and consumers. This is expected to increase transparency, both for supply chain businesses and for the general public, and increase efficiencies in terms of information transfer. In particular, it is likely to help facilitate and streamline the monitoring and enforcement of the regulation carried out by EU and Member State authorities. It is also likely to provide a market-intelligence tool that may be used for revising and refining obligations in the future.

The Fit for Future Platform’s opinion on Ecodesign 21 recognised the need to improve the sustainability of products and the necessity to introduce new obligations whilst keeping the burden on business to the minimum. The Platform made nine suggestions that were considered in the design of the new legislation on digitalisation; considering the burdens on SMEs; and ensuring consistency and clarity. For example, enabling consumers to have better access to information whilst ensuring that the Digital Product Passport allows for efficient information flows following best practices; and the possibility of accompanying the measures under this Regulation with mitigating measures so that impacts are expected to remain proportionate for SMEs.

• Fundamental rights

Ecodesign requirements can have benefits for the protection and promotion of fundamental rights as laid down in the EU Charter of Fundamental Rights, including on the freedom to conduct a business (Article 16), the right to environmental protection (Article 37) and the right to consumer protection (Article 38).

4. BUDGETARY IMPLICATIONS

The proposal has limited budgetary implications for the Commission. Specifically, it requires 54 full-time equivalents to fully implement the regulation and the related delegated acts over the period 2022-2027 of the EU Multiannual Financial Framework (MFF). New commitments would be needed on existing budget lines, amounting to EUR 23,338 million in Heading 1 of the MFF (Single Market, Innovation and Digital), EUR 43,912 million in Heading 3 (Natural Resources and the Environment) and EUR 38,621 million in Heading 7 (Administrative Expenditure). The new commitments will be covered from the existing budgetary envelopes of the relevant programmes.

The budget implications mainly stem from the following work to:

–review, between 2022 and 2026, 33 Commission regulations and adopt 5 new measures under the current Ecodesign Directive, which cannot be carried out by staff currently working on implementation of the Directive;

–prepare and adopt up to 18 new delegated acts between 2024 and 2027; 12 new delegated acts would also be adopted between 2028 and 2030, with staff and budget implications in 2025-2027;

–prepare implementing acts (on average one per year as from 2024) when this is needed to ensure uniform conditions for the implementation of this Regulation, for example in relation to market surveillance, disclosure of information on the destruction of unsold consumer goods or the acknowledgement of self-regulatory measures; and

–carry out horizontal tasks related to the digital product passport, support for market surveillance and customs control, and a European circular business hub to support the exchange of experience between economic actors in integrating circularity in product design and manufacturing 22 .

In terms of staffing needs, the Commission has looked carefully at ways to share the work between lead DGs, reallocate staff when possible and outsource scientific and technical support for the preparation of delegated and implementing acts and for crosscutting tasks.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

In accordance with the Better Regulation guidelines published in November 2021 and in particular tool 38, the Commission will draw up an implementation strategy after the legislative proposal has been adopted by the co-legislators. It will present the different compliance promotion tools to be used and will include aspects related to digital implementation.

• Detailed explanation of the specific provisions of the proposal

Article 1 lays down the subject matter of this Regulation, namely a framework for setting ecodesign requirements, creating a digital product passport, and prohibiting the destruction of unsold consumer products. It lays down the product aspects to which the eco-design requirements relate, such as durability and reliability, reusability, upgradability, reparability, and possibility of maintenance and refurbishment, presence of substances of concern, energy and resource efficiency, recycled content. It further sets the scope of the Regulation – only a few sectors, such as food, feed, and medicinal products, are exempted.

Article 2 lays down the definitions needed for the purposes of this Regulation. A number of these definitions are taken over from the New Legislative Framework (Regulation (EC) No 765/2008 and Decision 768/2008/EC), from the repealed Ecodesign Directive or from existing Union environmental legislation (such as the Waste Framework Directive). A set of new definitions is brought in, for instance on the provisions on the product passport and on the destruction of unsold consumer products.

Article 3 sets out the general principle related to the free movement of products that comply with delegated acts adopted pursuant to this Regulation.

Article 4 lays down the empowerments for the Commission to adopt delegated acts to supplement this Regulation by establishing ecodesign requirements, requirements relating to conformity assessment procedures, requirements for the measure of energy consumption or of performance in relation to other parameters, requirements for manufacturers, authorised representatives or importers to provide information to the Commission or market surveillance authorities, requirements on the use of online tools to calculate the performance of products, requirements on alternative rules for the declaration of conformity or for markings and finally, requirements on Member States incentives and on public procurement criteria.

Article 5 lays down the general framework for the adoption of ecodesign requirements. It lays down the product aspects that those requirements can improve. It explains that those requirements may apply to one specific product group or horizontally to more product groups, where technical similarities allow for the setting of common requirements. It specifies that ecodesign requirements include performance requirements and information requirements). Finally, it lays down a number of conditions to be met by the Commission when preparing ecodesign requirements, as well as a number of criteria that those requirements would need to meet.

It also enables the Commission to require that supply chain actors cooperate with manufacturers, notified bodies and competent national authorities for the verification of products’ compliance with eco-design requirements.

Article 6 provides more details about performance requirements, for instance that they can take the form of either a quantitative level or a non-quantitative requirement, set to improve a product aspect, on the basis of selected product parameter(s) (the list of which is in Annex I).

Article 7 focuses on information requirements. It establishes that those requirements shall always include requirements related to the product passport and requirements related to substances of concern The Article further details other type of information that can be provided, e.g. information on the performance of a product or information for consumers on how to install or use the product. This information can take the form of ‘classes of performance’ for instance ranging from A to G, to facilitate comparison between products.

Finally, the Article specifies the different ways in which the information can be provided (e.g. on the passport, on a website, on a label, etc.).

Article 8 sets out the elements that the Commission needs to specify in the information requirements in relation to the digital product passport, for example the information to be included and who has access to what information. Articles 9 to 11 lay down the necessary provision to implement the product passport. Article 9 lays down the general requirement in relation to the product passport. Article 10 provides the essential requirements for the technical design and operation of the product passport. Article 11 lays down the rules related to unique operator and facility identifiers.

Contents

1.

Article 12 provides for the setting up of a registry storing information included in the products passport, allowing the Commission to specify which information needs to be uploaded


Article13 includes the provisions specifying what is expected form customs authorities in relation to the product passport and to what information they should have access to facilitate their work.

Article 14 specifies the requirements attached to labels, when they are to be used for a given product group. It explains that in such cases, delegated acts must specify the label’s content (including classes of performance) and layout, and how they are to be displayed to consumers. If the product is already covered by a label as provided for in the Energy Labelling Regulation (EU) 2017/1369, and the information on other parameters, including on other classes of performance, cannot be included in it, that information might be included in a separate label if the Commission finds it appropriate.

Article 15 specifies that economic operators cannot display labels mimicking the labels provided for under this Regulation.

Article 16 provides for the Commission to adopt a working plan which must cover at least 3 years and indicates the criteria for prioritising products. The working plan includes an indicative list of product groups that the Commission intends to tackle in the coming years.

Article 17 establishes an Ecodesign Forum (expert group). It is based on the existing Consultation Forum established under Directive 2009/125/EC.

Article 18 concerns self-regulation measures. These are industry-led measures that can be used as alternatives to delegated acts establishing ecodesign requirements adopted pursuant to Article 5. Directive 2009/125/EC 23 already contained an article on voluntary agreements. Article 17 of this Regulation expands upon the original article from Directive 2009/125/EC. In particular, it lays down what the self-regulation measure should contain, what the industry should submit as evidence to the Commission, and the procedure for the Commission to recognise the self-regulation measure as a valid alternative to a delegated act.

Article 19 lays down a number of measures that the Member States and the Commission are required to take to help SMEs with the general implementation of this Regulation and the future delegated acts. Such measures include guidelines, financial assistance and training.

Article 20 first establishes a general obligation of transparency for economic operators who discard unsold consumer products. It also provides for the possibility to adopt delegated acts to prohibit economic operators from destroying unsold consumer products. These delegated acts may also contain exemptions to the general prohibition for instance for reasons of health and safety. If such an exemption is used, economic operators also have an obligation of transparency (i.e. disclosing the number of products destroyed, reasons for destruction, etc.). The article does not apply to SMEs, but the delegated act prohibiting the destruction of products may specify that some obligations apply to certain categories of SMEs (micro, small or medium).

Articles 21, 22, 23 and 24 lay down obligations of manufacturers, authorised representatives, importers and distributors. They are based on standard provisions from Decision 768/2008/EC.

Article 25 lays down obligations of dealers (who are typically retailers or sellers) especially in relation to the display of labels and access to the product passport, including in case of (online) distance selling.

Article 26 gathers together the different obligations that the economic operators have to comply with if the delegated act requires the product to have a label (e.g. providing dealers with labels).

Article 27 concerns obligations of fulfilment service providers, namely ensuring that when they handle a product, the conditions during warehousing, packaging, addressing or dispatching do not jeopardise the products’ compliance with the ecodesign requirements.

Article 28 is a standard article from Decision 768/2008/EC, which lays down the two cases in which manufacturers’ obligations apply to importers and distributors.

Article 29 sets out the obligations of online marketplaces and online search engines in particular concerning cooperation with market surveillance authorities. It also specifies that market surveillance authorities should have the power to order an online marketplace to remove illegal content.

Article 30 lays down the possibility for future delegated acts to require economic operators to make the technical documentation available digitally without request. Further, in order to assess market penetration of products for which ecodesign requirements have been set, the Article requires economic operators to provide information about products supplied.

Article 31 specifies that products should be able, where appropriate, to measure the energy they consume while in use, or its performance in relation to other relevant parameters and to make this data available to the end user. When so established in a delegated act manufacturers shall collect, anonymise and report this data to the Commission.

Chapter VIII on the conformity of products is mostly standard provisions on how to assess the conformity of products. It concerns:

–the use of reliable, accurate and reproducible methods for tests, measurements and calculations (Article 32);

–harmonised standards providing a presumption of conformity (Article 34);

–the possibility for the Commission to adopt common specifications where harmonised standards are not available (Article 35);

–the conformity assessment procedures (Article 36);

–the EU declaration of conformity (Article 37); and

–the CE marking (Articles 38 and 39) and the possibility to use alternative markings (Article 40).

Noteworthy in this standard Chapter are the presumption of conformity with ecodesign requirements for products bearing the Union Ecolabel (Article 34) and the possibility to amend, in the delegated act, the relevant conformity assessment module depending on the product at stake (Article 36).

Article 33 concerns the prevention of circumvention. For instance, products designed to be able to detect they are being tested and automatically altering their performance to a more favourable result will not be permitted on the market.

Chapter IX (Articles 41 to 56) concerns the notification of conformity assessment bodies and consists of standard provisions based on Decision 768/2008/EC, combined with targeted enhancements of those provisions to ensure legal clarity and further strengthen the independence, competence and monitoring of notified bodies.

Article 57 provides that if Member States adopt incentives to reward products, those incentives should, in principle, target the highest two populated classes of performance or that bear the EU Ecolabel. In case no class of performance is set, or the class of performance is based on several product parameters, the Commission can further specify in a delegated act how the Member States incentives must work.

Article 58 concerns green public procurement and more specifically the possibility for delegated acts adopted pursuant to this Regulation to establish requirements applicable to public contracts (e.g. technical specifications, selection criteria, award criteria, etc.), based on the product parameters listed in annex to this Regulation.

Chapter XI concerns market surveillance. It generally builds upon the obligations that exist under the Market Surveillance Regulation (EU) 2019/1020, while providing for some more specific obligations where relevant for this Regulation.

Article 59 requires Member States to draw up an action plan for market surveillance activities, which must include ‘priorities for market surveillance’, to be identified based on a number of criteria laid down in the Article, and the nature and number of checks planned.

Article 60 empowers the Commission to adopt delegated acts setting out a minimum number of checks to be performed on specific products.

Article 61 makes reference to the information and communication system under the Market Surveillance Regulation (ICSMS) and requires Member States to enter information on penalties imposed pursuant to this Regulation. On that basis, the Commission is required to adopt a report including indicative benchmarks on the frequency of checks and the nature and severity of penalties imposed.

Article 62 makes reference to the administrative cooperation group (‘ADCO’) set up pursuant to the Market Surveillance Regulation and sets out its role in the context of this Regulation. This role includes identifying common priorities for Member States’ action plans or priorities for Union support (such as joint market surveillance and testing projects, joint investment in market surveillance capacities, including equipment and IT tools, common training sessions, and guidelines).

Chapter XII concerns safeguard procedures and is based on standard provisions. Article 61 sets out the procedure to be followed by a national market surveillance authority where it considers that a product presents a risk. In such case, the national market surveillance authority must initiate a procedure informing other market surveillance authorities of the measures taken (prohibition or restriction on making the product available, withdrawal or recall).

Article 64 lays down the Union safeguard procedure to be used if a Member State or the Commission disagrees with a measure taken at national level under the safeguard procedure set out in Article 63. Following a consultation, the Commission will adopt an implementing act deciding whether the measure is justified or not. Once adopted, all Member States must ensure that the non-compliant product is withdrawn from their market.

2.

Article 65 concerns the particular case where a case of non-compliance relates to a formal obligation (affixing the CE marking, EU declaration of conformity, etc.)


Chapter XIII is a standard chapter with articles on delegated acts (Article 66) and on implementing acts (Article 67).

Chapter XIV is a standard chapter on final provisions, with articles on penalties (Article 68), on carrying out an evaluation of the Regulation 8 years after adoption (Article 69), and on repeal and transition provisions (Article 70). Noteworthy is the fact that implementing measures adopted under the Ecodesign Directive should remain applicable until they are repealed by a delegated act adopted pursuant to this Regulation.

Annex I sets out the product parameters to be used for setting performance and information requirements for products under this Regulation.

Annex II lays down the procedure for setting such performance requirements.

Annex III lists the information that can be included in the product passport and specifies the information to be included in it.

Annex IV reproduces the standard conformity assessment module referred to in Article 35 (from Decision 768/2008/EC).

Annex V reproduces the standard EU declaration of conformity.

Annex VI gives more detailed information about the content of delegated acts setting ecodesign requirements to be adopted pursuant to this Regulation.

Annex VII lays down general criteria applicable to self-regulation measures (Article 18).

Annex VIII is a standard annex including the correlation table with the Ecodesign Directive.