New Green Deal proposals published today: Right to repair

Photo by Kilian Seiler on Unsplash

The European Commission published two new legislative proposals today implementing the programme of the European Green Deal for Consumers: Proposal for a Directive on new rules on substantiating green claims and Proposal for a Directive on common rules promoting the repair of goods (text of both proposals may be found here). Below we provide our first thoughts on the proposal on the right to repair. 

Promoting the right to repair (COM(2023) 155 final)

Consumer Sales Directive prioritises consumers' access to and choice of two remedies in case goods are defective (non-conforming the contract): repair and replacement. Traders may refuse the remedy chosen by consumers if it is impossible to provide or it would be disproportionate to provide it. Infamously, the assessment of disproportionality does not account for environmental impact of the to-be-provided remedy (although some national courts started to include this impact in their assessment). Consumers are often not incentivised to ask for repair, which may be perceived as more time-consuming, less trustworthy, difficult to obtain. For traders repairing goods is also often a less preferred solution, e.g. due to the need to keep spare parts available, arrange repair points.

The new proposal aims to address the above-mentioned issues and incentivise more uptake of repair as a chosen remedy, which should also incentivise producers and traders 'to develop more sustainable business models' (see Commission's press release here).

What are the proposed legislative changes:

• Sellers to offer repair, unless it is more expensive than replacement.
• Comment 1: This limits the choice of consumers as to their remedy. We could argue that the choice left to consumers is illusory. Unless repair is more expensive, consumers have to accept it. If replacement is cheaper but consumers would exercise their choice for repair instead, sellers would be able to claim disproportionality of remedies and provide replacement instead. 
• Comment 2: Proponents of promoting repair as leading to more sustainable consumption are bound to be disappointed by this middle-of-the-way solution. It is worth noting, that previously unless repair was more expensive than replacement, there was no disproportionality when consumers asked for repair, thus sellers needed to provide it to consumers, as well. The only difference then is that now consumers will need to accept repair even if it was not their first choice. This may increase the number of repairs on the market, but would the change really be significant? It will depend on what is calculated in the price of repair vs replacement (e.g. price of environmental impact?), the availability of spare parts etc. Assessment of disproportionality remains key and has not been further addressed by the proposal.
• Consumers to have a right of repair against producers for products that are technically repairable under EU law, when their legal guarantee with sellers expires (that is which are covered by reparability requirements)
• Comment 1: This new right fills the gap that often occurred when the product would malfunction immediately after the legal guarantee's expiry date, or when non-conformity at the moment of delivery could not be established. However, the scope of the application of this new right is rather limited (see below).
• Comment 2: Repairability requirements are any EU law requirements listed in Annex II that enable a product to be repaired. This limits the applicability of this new right to specific product categories, e.g. washing machines, dishwashers, refrigerators, vacuum cleaners, servers, mobile phones, aligning this proposal to the previously adopted Ecodesign rules. 
• Comment 3: It is producers' choice whether to repair for free (commercial guarantee) or against payment (with the hope that market pressures will keep the price reasonable). Producers may be discouraged from providing this right for free as it would drive their product prices up, unless there would be a clear and clever way to emphasise them providing free repairs. It will be interesting to observe whether consumers' transactional choices will be impacted by the difference in the provision of repair services.
• Comment 4: For goods produced outside the EU, consumers could still expect repair - either from these producers or other traders within the EU. This, as we know, may be a right that will be difficult to enforce in practice.
• Producers' duty to inform about products they are obliged to repair themselves
• Comment 1: The aim of this new information piece is to ensure consumers know they can turn to producers for repair. However, there is lack of specificity, as to how this information is to be provided to reach consumers. Well, besides required transparency, as usual. This information may be more effective if it was provided by sellers, highlighted at the point of contracting.
• Online matchmaking repair platform to connect consumers with repair points, sellers of refurbished goods in their area
• Comment 1: Article 7 introduces an obligation for the Member States to establish at least one such platform. This means that cross-border buyers may be somewhat inconvenienced, as the platforms are bound to differ in each MS The platforms need to have search functionality for goods, location of repair, repair conditions (time), availability of temporary replacement goods, ancillary services, quality standards, refurbished goods sellers. It should allow directly asking for the ERIF, as well as display of any adopted national repairability labels.
• Comment 2: Repairers may choose whether to register on the platform and MS may place conditions on who can access the repair platform. Repairers may be incentivised to register due to competition on the market, but it is also clear that some of them may not opt in. This will leave consumers with fewer choices and less transparency.
• European Repair Information Form (ERIF) available on request from repairers - to assure transparency to repair conditions and price
• Comment 1: This is supposed to facilitate comparison between different repair providers. It is interesting, however, that the form is not available by default, but only upon consumer request. This limits transparency as many consumers may not know to or take the time to ask for this form, esp. if they are looking for a quick fix of their product's problem.
• Comment 2: Consumers may be asked to pay for costs that repairers incur to provide this form. This is quite baffling, honestly, as repair remains a free remedy pursuant to the CSD, which right this new framework may undermine. Hopefully, the EP will re-write this part of the proposed Article 4 (para 3).
• Comment 3: The benefit of the proposed framework is that the ERIF would remain fixed for 30 days from the day it is provided. Consumers may then take their time comparing various offers available on the repair market.
• European quality standard for repair services - to help identifying repairers of higher quality
• Comment 1: The Commission's plan is to facilitate development of a voluntary European quality standard for repair services (Recital 27). There is then no specific standard in mind yet, which could provide more transparency as to repair quality. In the hopes that one (or more) is adopted soon, Article 7 mentions that any European or national quality standards would need to be searchable on online comparison platforms. 

It is worth it to note the new term proposed by the Directive: 'Repairer' is a natural or legal person who offers a repair service for commercial purposes, incl. independent repair points, producers, sellers.

CJEU in C-100/21 (Mercedes-Benz group): technical rules on motor vehicles and emissions are also aimed at consumer protection

Dear readers, 
 
this week, the CJEU has decided a case that may go unnoticed among consumer lawyers scouting the CVRIA website for new cases but has a clear connection to consumer law - namely, C-100/21 (Mercedes-Benz Group)  concerning the liability of a producer of "defeat" vehicles. 
We know, of course, the background to this case - namely, the so-called "Dieselgate", revealing how several car producers had tweaked their vehicles to cheat on emissions tests. Quite a few court cases have previously reached the CJEU, lastly based on the Consumer Sales Directive. This case is similar to its predecessors qua facts, but also different in terms of the legal basis. 
In Mercedes-Benz, in fact, the basis for the consumer's claim was to be found in German tort law (para 823(2) BGB), which provides for recourse in tort by individuals when a law aiming to protect them has been infringed (see para 29). The question that the CJEU had to ask, then, was whether two European instruments read together - namely Directive 2007/46 establishing a framework for the approval of motor vehicles (‘the Framework Directive’), and Regulation No 715/2007 regulating the approval of certain auto vehicles - had to be interpreted as aiming to protect individual buyers of auto vehicles. According to the referring court, the question was a matter of doctrinal contention under German law, with some considering such technical instruments as merely aiming to protect the environment and secure road safety, while others emphasised the function of technical standards in securing consumer autonomy and individual interests (see paras 29-30 and ff.
According to the Court, it is the case that the European rules under consideration in fact (also) aim to protect individual consumers: that this is the case, the Court argues (para 78 ff), can be evinced from the fact that the Framework Directive requires manufacturers to provide individual purchasers with a certificate declaring that the purchased vehicle complies with the requirements set out in law. Buyers of auto vehicles carrying a conformity certificate can thus expect the acquired vehicles to comply with the relevant regulations. Failure to comply is "liable, inter alia, to create uncertainty as to the possibility of registering, selling or entering into service that vehicle and, ultimately, to harm the purchaser of a vehicle equipped with an unlawful defeat device" - all of which obviously directly affect the cars' individual purchasers. 
Member States, hence, are required to make sure that individual consumers have recourse against the producer of a defeat vehicle, where it is proven in national proceedings that the vehicle indeed contained a "defeat" mechanism. The rules applicable to actions seeking to obtain compensation for the damage suffered by individual consumers, however, are not harmonised; it is up to the Member States, subject to compliance with the principles of equivalence and effectiveness, to determine the exact contours of the claims. In this context, national courts are asked to assess the facts of the case - in which context, while tasked with securing the effectiveness of consumer's right to compensation for any damages suffered, they are also allowed to consider principles such as unjustified enrichment that would allow for balancing such damages against possible benefits enjoyed thanks to using the vehicle (paras 91-93). 
Given previous cases, the outcome in this case is perhaps not too surprising; it goes, however, to show further ways in which national private law systems and EU rules gradually come into more direct conversations, also where one would not immediately expect it. Furthermore, the case may be of interest to students and teachers of comparative tort law, always looking for current examples to illustrate this specific German doctrine :).