Council of the
European Union
Brussels, 27 January 2023
(OR. en)
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NOTE
From:
Presidency
To:
Delegations
Subject:
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL amending Directives 2005/29/EC and 2011/83/EU as
regards empowering consumers for the green transition through better
protection against unfair practices and better information
- Presidency forth compromise proposal
With a view to the meeting of the Working Party on Consumer Protection and Information on 3
February 2023, delegations will find a Presidency compromise proposal in the Annex to this note.
Changes compared to the Commission proposal are marked in
bold underlined for new text and
strikethrough for deleted text, changes compared to the previous compromise proposal (doc.
5036/23) are also grey highlighted.
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Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the
green transition through better protection against unfair practices and better information
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114
thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee,
1
Acting in accordance with the ordinary legislative procedure,
1
OJ C , , p. .
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Whereas:
(1)
In order to tackle unfair commercial practices which prevent consumers from making
sustainable consumption choices, such as practices associated with the early obsolescence
of goods, misleading environmental claims
including claims about animal welfare
(“greenwashing”), non-transparent and non-credible sustainability labels or sustainability
information tools, specific rules should be introduced in Union consumer law. This would
enable national competent bodies to address those practices effectively. By e
Ensuring that
environmental claims are fair
will enable, consumers will be able to choose products that
are genuinely better for the environment than competing products. This will encourage
competition towards more environmentally sustainable products, thus reducing negative
impact on the environment.
(2)
Those new rules should be introduced both through amending Articles 6 and 7 of Directive
2005/29/EC of the European Parliament and of the Council
2 relating to those commercial
practices which are to be considered misleading, and therefore prohibited, on the basis of a
case-by-case assessment, and through amending Annex I to Directive 2005/29/EC with the
addition of specific misleading practices which are in all circumstances considered unfair,
hence prohibited.
It contiunes to be the case that a commercial practice which is not
considered unfair according to the prohibitions in Annex I to Directive 2005/29/EC is
not per se fair, but can still be considered unfair based on the provisions of Articles 5
to 9.
2
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of
the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the
European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L
149, 11.6.2005, p. 22).
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(3)
In order for consumers to take better-informed decisions and thus stimulate the
demand for, and the supply of, more durable goods, the consumers should may not be
misled about a product’s In order to deter traders from deceiving consumers as regards
the environmental
impact or social
aspects, durability or reparability of their products,
including through the overall presentation of the products,
. Article 6(1) of Directive
2005/29/EC should be
therefore amended by adding the environmental
impact or social
aspects impact, durability and reparability of the product to the list of the main
characteristics of the product in respect of which the trader’s practices can be considered
misleading, following a case-by-case assessment.
Information provided by traders on
the social aspects of a product throughout its value chain may relate for example to
the quality and fairness of working conditions of the involved workforce, such as
adequate wages, social protection, work environment safety and social dialogue; to
the respect for human rights, such as the absence of forced and child labour; and to
equal treatment and opportunities for all, such as gender equality, inclusion and
diversity. Another example is animal welfare. Information provided by traders on the
social sustainability of products, such as working conditions, charity contributions or
animal welfare, should not mislead consumers either.
(4)
Environmental claims, in particular climate-related claims, increasingly relate to future
performance in the form of a transition to carbon or climate neutrality, or a similar
objective, by a certain date. Through such claims, traders create the impression that
consumers contribute to a low-carbon economy by purchasing their products. To ensure
the fairness and credibility of such claims, Article 6(2) of Directive 2005/29/EC should be
amended to prohibit such claims, following a case-by-case assessment, when they are not
supported by clear, objective and verifiable commitments and targets given by the trader.
Such claims should also be supported by an independent monitoring system to monitor the
progress of the trader with regard to the commitments and targets.
Consumers should be
able to consult the findings of independent monitoring systems and thus be able to
take note of the relevant proof indicating the progress of the trader producer.
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(5)
Another potentially misleading commercial practice which should be added to the specific
practices targeted by Article 6(2) of Directive 2005/29/EC is advertising
characteristics of
a product or product category as beneficial benefits for consumers that
when those
characteristics are actually a common practice
feature in the relevant market
regarding
the relevant product or product category. Such advertising could affect transactional
decision of the average consumers, especially if they are not aware that this is a
common feature.
Therefore, it should be added to the specific practices targeted by
Article 6(2) of Directive 2005/29/EC. The new specific ban would cover, for For
example, if the absence of a chemical substance is a common practice in a specific product
market, its promotion
of the absence of a chemical substance as a distinctive feature of
the product could constitute an unfair commercial practice
if the absence of that chemical
substance in a product or product category is a common practice. It is the case if the
substance has never been associated with the particular product or product category
For example, dishwashing liquid might be advertised as containing “no
chemical
substance X”. However, if
it is a common feature that dishwashing liquid products have
never contained CFCs
do not contain the chemical substance X or do not contain it any
more, the implication that the product has been improved through the removal of CFCs
should
that substance could be considered misleading. A “free” claim may also be
misleading if it implies to the average consumer that
other products of the compared
same product is
category are unsafe, toxic or harmful when it is
they are not.
(6)
Comparing products based on their
durability, reparability, environmental or social
aspects, including through the use of sustainability information tools, is an increasingly
common marketing technique. In order to ensure that such comparisons do not mislead
consumers, Article 7 of Directive 2005/29/EC should be amended to require that the
consumer is provided with information about the method of the comparison, the products
which are the object of comparison and the suppliers of those products, and the measures
to keep information up to date. This should ensure that consumers make better informed
transactional decisions when using such services. The comparison should be objective by,
in particular, comparing products which serve the same function, using a common method
and common assumptions, and comparing material and verifiable features of the products
being compared.
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(7)
Sustainability labels can set standards for different areas and thus address different
aspects. This Directive should apply only to sustainability labels that refer
predominantly to the environmental or social aspects of a product. Consequently, a
label can refer to the environmental or social aspects in this way even though it to
some extent also refers to other aspects. A sustainability label means any voluntary
trust mark, quality mark or equivalent, which is awarded or from the consumers’
perspective seems to be awarded by a public or private entity to set apart and
promote a product, process, or business about environmental or social aspects. The
displaying of sustainability labels which are not based on a certification scheme or not
established by public authorities
entities should be prohibited by including such practices
in the list in Annex I to Directive 2005/29/EC. The certification scheme should fulfil
minimum transparency and credibility conditions. The displaying of sustainability labels
remains possible without a certification scheme where such labels are established by a
public authority
entity, or in case of additional forms of expression and presentation of
food in accordance with Article 35 of Regulation (EU) No 1169/2011. This rule
complements point 4 of Annex I to Directive 2005/29/EC which prohibits claiming that a
trader, the commercial practices of a trader, or a product has been approved, endorsed or
authorised by a public or private body when it has not, or making such a claim without
complying with the terms of the approval, endorsement or authorisation.
(8)
In cases where the displaying of a sustainability label involves a commercial
communication that suggests or creates the impression that a product has a positive or no
impact on the environment, or is less damaging to the environment than competing
products, that sustainability label also should be considered as constituting an
environmental claim.
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(9)
Annex I to Directive 2005/29/EC should also be amended to prohibit making generic
environmental claims without recognised excellent environmental performance which is
relevant to the claim. Examples of such generic environmental claims are ‘environmentally
friendly’, ‘eco-friendly’, ‘eco’, ‘green’, ‘nature’s friend’, ‘ecological’, ‘environmentally
correct’, ‘climate friendly’, ‘gentle on the environment’, ‘carbon friendly’, ‘carbon
neutral’, ‘carbon positive’, ‘climate neutral’, ‘energy efficient’, ‘biodegradable’, ‘biobased’
or similar statements, as well as broader statements such as ‘conscious’
, ’sustainable’ or
‘responsible’ that suggest or create the impression of
recognised excellent environmental
performance. Such generic environmental claims should be prohibited whenever there is
no excellent environmental performance demonstrated or whenever the specification of the
claim is not provided in clear and prominent terms on the same medium, such as the same
advertising spot, product’s packaging or online selling interface. For example, the claim
‘biodegradable’, referring to a product, would be a generic claim, whilst claiming that ‘the
packaging is biodegradable through home composting in one month’ would be a specific
claim, which does not fall under this prohibition.
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(10)
Excellent
Recognised excellent environmental performance can be
based on compliance
with Regulation (EC) No 1221/2009 of the European Parliament and the Council on
the voluntary participation by organisations in a Community eco-management and
audit scheme (EMAS) or demonstrated by compliance with Regulation (EC) No 66/2010
of the European Parliament and of the Council
3, or officially recognised ecolabelling
schemes in the Member States, or compliance with top environmental performance for a
specific environmental aspect in accordance with other applicable Union laws, such as a
class A in accordance with Regulation (EU) 2017/1369 of the European Parliament and of
the Council
4. The excellent environmental performance in question should be relevant to
the claim. For example, a generic claim ‘energy efficient’ could be made based on
excellent environmental performance in accordance with Regulation (EU) 2017/1369. By
contrast, a generic claim ‘biodegradable’ could not be made based on excellent
environmental performance in accordance with Regulation (EC) No 66/2010, insofar as
there are no requirements for biodegradability in the specific EU Ecolabel criteria related
to the product in question.
(11)
Another misleading commercial practice which should be prohibited in all circumstances
and thus added to the list in Annex I to Directive 2005/29/EC is making an environmental
claim about the entire product when it actually concerns only a certain aspect of the
product. This would be the case for example when a product is marketed as ‘made with
recycled material’ giving the impression that the entire product is made of recycled
material, when in fact it is only the packaging that is made of recycled material.
3
Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25
November 2009 on the EU Ecolabel (Text with EEA relevance) (OJ L 27, 30.1.2010, p. 1).
4
Regulation (EU) 2017/1369 of the European Parliament and of the Council of 4 July 2017
setting a framework for energy labelling and repealing Directive 2010/30/EU (OJ L 198,
28.7.2017).
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(12)
The Circular Economy Action Plan
5 provides for the need to set the rules on environmental
claims using Product and Organisation Environmental Footprint methods. Additional
requirements on environmental claims will have to be set in specific Union legislation.
Those new requirements will contribute to the Green Deal
6 objective of enabling buyers to
make more sustainable decisions and reduce the risk of greenwashing through reliable,
comparable and verifiable information.
(13)
Presenting requirements imposed by law on all products within the relevant product
category on the Union market, including imported products, as a distinctive feature of the
trader’s offer, should also be prohibited in all circumstances and
thus added to the list in
Annex I to Directive 2005/29/EC. This prohibition could apply, for example, when a trader
is advertising that a given product does not include a specific chemical substance while
that substance is already forbidden by law for all products within that product category in
the Union. Conversely, the prohibition should not cover commercial practices promoting
traders’ or products’ compliance with legal requirements that only apply to some products
but not to other competing products of the same category on the Union market, such as
products of non-EU origin.
It could be the case that certain products on the market are
required to comply with certain legal requirements while other products in the same
product category do not. For example, fish products produced using EU-mandated
sustainable fishing methods should be allowed to advertise compliance with EU legal
requirements, since not all fish products offered on the EU market and of third
country origin must comply with them.
5
COM(2020)98 final, 11 March 2020.
6
COM(2019)640 final, 11 December 2019.
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(14)
In order to improve the welfare of consumers, the amendments to Annex I to Directive
2005/29/EC should also address several practices associated with early obsolescence,
including planned
early obsolescence practices, understood as a commercial policy
involving deliberately planning or designing a product with a limited useful life so that it
prematurely becomes obsolete or non-functional after a certain period of time
or after a
predetermined intensity of use. Purchasing products that are expected to last longer than
they actually do causes consumer detriment. Furthermore,
planned early obsolescence
practices have an overall negative impact on the environment in the form of increased
material waste
and use of energy and materials. Therefore, addressing those
information
related to early obsolescence practices
isare also likely to reduce the amount of waste,
contributing to a more sustainable consumption.
(14a)
It should be prohibited under Annex I to Directive 2005/29/EC to omit to inform the
consumer, based on information provided by the producer, of the fact that such good
contains a feature that was introduced to limit its durability. For example, such a
feature could be software which stops or downgrades the functionality of the good
after a particular period of time, or it could be a piece of hardware which is designed
to cause the product failure after a particular period of time.
(14b) The use of features limiting the durability of goods should be distinguished from
manufacturing practices using materials or processes of general low quality resulting
in limited durability of the goods. Lack of conformity of a good resulting from the use
of low quality materials or processes should continue to be governed by the rules on
the conformity of goods set out in Directive (EU) 2019/7717.
7
Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May
2019 on certain aspects concerning contracts for the sale of goods, amending
Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive
1999/44/EC (OJ L 136, 22.5.2019, p. 28).
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(15)
It should be prohibited
under Annex I to Directive 2005/29/EC to omit to inform the
consumer that a software update, including a security update, may
will negatively
impact
hinder the use
functioning of goods with digital elements or certain features of
those goods, even if the update improves the functioning of other features. For example,
when inviting consumers to update the operating system on their smartphone, the trader
will have to
should inform the consumer if such an update may
will negatively impact the
functioning of any of the features of the smartphone
, for example the battery, certain
applications performances or a complete smartphone slowdown.
This prohibition
applies only to the trader that is providing the software update to the consumer,
regardless whether it is the producer of the good, software provider or the seller of
the good.
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(16)
It should also be prohibited to
market a good omit to inform the consumer about the
existence of
containing a feature of the good introduced to limit its durability
, when the
trader knows or can be reasonably expected to know about it. For example, such a
feature could be software which stops or downgrades the functionality of the good after a
particular period of time, or it could be a piece of hardware which is designed to fail after a
particular period of time.
The primary target group of this prohibition are the
producers of the goods as they determine the durability of the goods. Producers of the
goods fall within the scope of this Directive whenever they are engaged in business-to-
consumer commercial practices, such as advertising. In contrast mere retailers do not
have influence on durability of the goods they sell and they may not know from the
producer about the features of the good introduced to limit the durability. However,
mere retailers can be held liable when they can be reasonably expected to know about
such features, for example via a statement from a producer or a competent national
authority. In such a situation, mere retailers should not market such goods. provide
consumers with additional information at the point of sale, thus ensuring that
consumers are made aware that the good concerned includes a feature to limit its
durability. The prohibition of
marketing such goods omitting to inform consumers of
such features of the goods complements and does not affect the remedies available to
consumers when they constitute a lack of conformity under Directive (EU) 2019/771 of the
European Parliament and of the Council
8. For such a commercial practice to be considered
unfair, it should not be necessary to demonstrate that the purpose of the feature is to
stimulate the replacement of the respective good. The use of features limiting the durability
of the goods should be distinguished from manufacturing practices using materials or
processes of general low quality resulting in limited durability of the goods. Lack of
conformity of a good resulting from the use of low quality materials or processes should
continue to be governed by the rules on the conformity of goods set out in Directive (EU)
2019/771.
8
Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on
certain aspects concerning contracts for the sale of goods, amending Regulation (EU)
2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/
EC (OJ L 136,
22.5.2019, p. 28).
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(17)
Another practice which should be prohibited under Annex I to Directive 2005/29/EC is the
practice of
falsely claiming that a good has a certain durability
in terms of usage time or
intensity under ordinary normal conditions of use when it does not
and the trader
knows or can be reasonably expected to know about it. That would be the case, for
instance, when a trader informs consumers that a washing machine is expected to last a
certain number of washing cycles
if used in accordance with specific conditions
provided in the instructions, while the actual use of
the washing machine
under the
prescribed conditions shows this is not the case
and the trader knows or can be
reasonably expected to know about it.
(18)
Similarly, Annex I to Directive 2005/29/EC should also be amended to prohibit presenting
products as allowing repair when such repair is not possible, as well as omitting to inform
consumers that it is not possible to repair goods in accordance with legal requirements.
(19)
The prohibition of those practices in relation to durability and reparability in Directive
2005/29/EC would provide the consumer protection authorities of Member States with an
additional enforcement tool for better protection of consumers’ interests in the cases where
traders fail to comply with requirements on the durability and reparability of goods under
Union product legislation.
(20)
Another practice associated with
planned early obsolescence which should be prohibited
and added to the list in Annex I to Directive 2005/29/EC is inducing the consumer into
replacing the consumables of a product earlier than would otherwise be necessary for
technical reasons. Such practices mislead the consumer into believing that the goods will
no longer function unless their consumables are replaced, thus leading them to purchase
more consumables than necessary. For example, the practice of urging the consumer, via
the settings of the printer, to replace the printer ink cartridges before they are actually
empty in order to stimulate the purchase of additional ink cartridges would be prohibited.
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(21)
Annex I to Directive 2005/29/EC should also be amended to prohibit omitting to inform
the consumer that the good is designed to limit its functionality when using consumables,
spare parts or accessories that are not provided by the original producer
, when the trader
knows or can be reasonably expected to know about such design limitations. For
example, the marketing of printers that are designed to limit their functionality when using
ink cartridges not provided by the original producer of the printer without disclosing this
information to the consumer would be prohibited
, when the trader knows or can be
reasonably expected to know about such design limitations. This practice could mislead
consumers into purchasing an alternative ink cartridge which cannot be used for that
printer, thus leading to unnecessary repair costs, waste streams or additional costs
for the
consumer due to the obligation to use the original producer’s consumables which the
consumer could not foresee at the time of purchase. Similarly, marketing smart devices
designed to limit their functionality when using chargers or spare parts that are not
provided by the original producer without disclosing this information to the consumer
would be prohibited as well.
The primary target group of this prohibition is the
original producer of the good in question. Original producers of the goods fall within
the scope of this Directive whenever they are engaged in business-to-consumer
commercial practices, such as advertising. In contrast mere retailers do not have
influence on such design limitations and may not know from the producer about
them. However, mere retailers can be held liable when they can be reasonably
expected to know about such design limitations, for example via a statement from the
original producer or a competent national authority. In such a situation, mere
retailers should provide consumers with additional information at the point of sale,
thus ensuring that consumers are made aware that the good concerned has design
limitations.
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(22)
In order for consumers to take better informed decisions and thus stimulate the demand for,
and the supply of, more durable goods, specific information about a product’s durability
and reparability should be provided for all types of goods as regards goods with digital
elements, digital content and digital services, consumers should be informed about the
period of time during which free software updates are available. Therefore, Directive
2011/83/EU of the European Parliament and of the Council should be amended to provide
consumers with pre-contractual information about durability, reparability and the
availability of updates. Information should be provided to consumers in a clear and
comprehensible manner and in line with the accessibility requirements of Directive
2019/882. The obligation to provide this information to consumers complements and does
not affect the rights of consumers provided in Directives (EU) 2019/770 and (EU)
2019/771 of the European Parliament and of the Council.
(23)
A good indicator of a good’s durability is the producer’s commercial guarantee of
durability within the meaning of Article 17 of Directive (EU) 2019/771
or another
guarantor’s commercial guarantee of durability, under which the guarantor offers
the same or more favourable conditions to the consumer as the producer.
SuchThe
producer’s commercial guarantee of durability is not a new type of guarantee.
Therefore, Directive 2011/83/EU should be amended to specifically require traders
Such
guarantee It is a commitment from a producer guarantor to the consumer on the
durability of the good, more specifically it is a commitment that the good will
maintain its required functions and performance through normal use. If the good will
not keep its durability, the guarantor producer is directly liable to the consumer to
offer free replacement or repair of the good. Consumers should benefit from clarity
and better information on the durablity of goods via a harmonised graphic format set
out in accordance with [Annex of this proposalDirective]. In addition, this will also
address existing consumer confusion about the currently offered commercial
guarantees information, which is often unclear, imprecise or incomplete. The
producer’s commercial guarantee of durability should be beneficial to consumers and
the environment since it promotes longer durability of goods. Traders selling goods
should be specifically required to inform consumers about the existence of the producer’s
commercial guarantee of durability for all types of goods, where
such a guarantee has
been issuedthe producer makes this information available.
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(24)
The problem of limited durability contrary to consumer expectations is most relevant for
for energy-using goods, which are goods that function from an external energy source.
Consumers are also most interested in receiving information about the expected durability
of this category of goods. For these reasons, only for this category of goods, consumers
should be made aware that the information about the existence of a producer’s commercial
guarantee of durability of more than two years has not been provided by the producer.
(25)
Goods containing energy-using components, where those components are mere accessories
and do not contribute to the main function of those goods, such as decorative lighting for
clothing or footwear or electric light for a bicycle, should not be classified as energy-using
goods.
(26)
In view of the established minimum duration of two years of the seller’s liability for lack
of conformity in accordance with Directive (EU) 2019/771 and the fact that many product
failures occur after two years, the trader’s obligation to inform consumers about the
existence and duration of the producer’s commercial guarantee of durability should apply
to guarantees that are of more than two years
the duration of the legal guarantee of
conformity.
(27)
In order to make it easier for consumers to take an informed transactional decision when
comparing goods before concluding a contract, traders should inform consumers about
the
existence and
its duration,
or the absence of the producer’s commercial guarantee of
durability for the entire good and not for specific components of the good.
(28)
The producer and the seller should remain free to offer other types of commercial
guarantees and after-sales services of any duration. However, the information provided to
the consumer about such other commercial guarantees or services should not confuse the
consumer with regard to the existence and duration of the producer’s commercial
guarantee of durability that covers the entire good
., and has a
longer duration of more than
two years
the minimum duration of the legal guarantee of conformity.
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(29)
To
In order for consumers to take better-informed decisions and also to promote
competition between producers as regards the durability of goods with digital elements
, the
traders selling those goods should inform consumers about the minimum period of time
during which the provider
producer commits to provide software updates for such goods.
However, the trader should be obliged to provide this information only where the
producer has made such information available. However, to avoid overloading
consumers with information, such information should only be provided when this period is
longer than the period of the producer’s commercial guarantee of durability, as that
guarantee entails the provision of updates, including security updates, that are necessary to
maintain the required functions and performance of goods with digital elements.
Furthermore, information about the producer’s commitment to provide software updates is
relevant only where the sales contract regarding goods with digital elements provides for a
single act of supply of the digital content or digital service in respect of which Article 7(3),
point (a), of Directive (EU) 2019/771 applies. In contrast, there should be no new
obligation to provide that information where the sales contract provides for a continuous
supply of the digital content or digital service over a period of time, since for those
contracts Article 7(3), point (b), of Directive (EU) 2019/771 specifies, by reference to
Article 10 (2) or (5), the period of time during which the seller is to ensure that the
consumer is informed of and supplied with updates. Likewise, traders offering digital
content and digital services should also inform consumers about the minimum period
during which the provider of the digital content or digital service, where the provider is
different from the trader, commits to provide software updates, including security updates,
necessary to keep the digital content and digital services in conformity.
This will provide
a simple and clear way for consumers to receive information about such minimum
periods. It is without prejudice to the legal obligations in Directives (EU) 2019/770
and (EU) 2019/771. The trader should be obliged to provide this information only
where the provider has made such information available. Information about the
provider’s commitment to provide software updates is relevant only where the contract
provides for a single act of supply or a series of individual acts of supply in respect of
which Article 8(2), point (b), of Directive 2019/770 applies. In contrast, there should be no
new obligation to provide that information where the contract provides for a continuous
supply over a period of time, since for these contracts Article 8(2), point (a) of Directive
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(EU) 2019/770 specifies the period of time during which the trader is to ensure that the
consumer is informed of and supplied with updates.
(31)
Pursuant to Article 5(1), point (e), and Article 6(1), point (m), of Directive 2011/83/EU
traders are obliged to provide the consumer before the consumer is bound by the
contract with information on the existence and the conditions of after-sales services,
including repair services, where such services are provided. In addition, to To allow
consumers to make an informed transactional decision and choose goods that are easier to
repair, traders should provide, before the conclusion of the contract, for all types of goods,
where applicable, the reparability score of the good as provided by the producer in
accordance with Union
law or
, where applicable national law
adopted in accordance
with Union law.
[first sentence moved from recital 32]
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(32)
Pursuant to Article 5(1), point (e), and Article 6(1), point (m), of Directive 2011/83/EU
traders are obliged to provide the consumer before the consumer is bound by the contract
with information on the existence and the conditions of after-sales services, including
repair services, where such services are provided. In addition, in
In order to ensure that
consumers are well informed about the reparability of the goods they purchase, where a
reparability score is not established in accordance with Union or national law, traders
should provide, for all types of goods, other relevant repair information that is made
available by the producer, such as information about the availability of spare parts, and a
user and repair manual.
The trader should not be required to actively search for such
information from the producer, for example, on the product-specific websites. [last
sentence moved from recital 33]
(33)
Traders should provide consumers with information about the existence and duration of the
producer’s commercial guarantee of durability, the minimum period for updates and the
repair information other than the reparability score, where the producer or provider of the
digital content or digital service, when different from the trader, makes the relevant
information available. In particular, as regards goods, the trader should convey to
consumers the information that the producer has provided to the trader or has otherwise
intended to make readily available to the consumer before the conclusion of the contract,
by indicating it on the product itself, its packaging or tags and labels that the consumer
would normally consult before concluding the contract. The trader should not be required
to actively search for such information from the producer, for example, on the product-
specific websites.
(34)
Directives 2005/29/EC and 2011/83/EU should continue to work as a ‘safety net’ ensuring
that a high level of consumer protection can be maintained in all sectors, by
complementing sector and product-specific Union law that prevail in case of conflict.
Similarly, the specific Union law providing for transparency and certification as
included for example in Regulation (EC) No 1221/2009 (EMAS), Regulation (EC)
66/2010 (EU Ecolabel), or Regulation (EC) 2017/1001 (trademark) should prevail in
case of conflict.
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(35)
Since the objectives of this Directive, namely, enabling better informed transactional
decisions by consumers to promote sustainable consumption, eliminating practices that
cause damage to the sustainable economy and mislead consumers away from sustainable
consumption choices, and ensuring a better and consistent application of the Union
consumer legal framework, cannot be sufficiently achieved by the Member States
individually but can rather, by reason of the Union-wide character of the problem, be better
achieved at Union level, the Union may adopt measures, in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with
the principle of proportionality, as set out in that Article, this Directive does not go beyond
what is necessary to achieve those objectives.
(36)
In accordance with the Joint Political Declaration of 28 September 2011 of Member States
and the Commission on explanatory documents
9, Member States have undertaken to
accompany, in justified cases, the notification of their transposition measures with one or
more documents explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this Directive, the
legislator considers the transmission of such documents to be justified,
9
OJ C 369, 17.12.2011, p. 14.
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HAVE ADOPTED THIS DIRECTIVE:
Article 1
Amendments to Directive 2005/29/EC
Directive 2005/29/EC is amended as follows:
(1) in Article 2, the following points
(ca) and (o) to (y) are added:
‘
(ca) ‘goods’ means goods as defined in point (5) of Article 2 of Directive (EU)
2019/771 of the European Parliament and of the Council;
‘(o) ‘environmental claim’ means any message or representation, which is not
mandatory under Union law or national law, including text, pictorial, graphic or
symbolic representation, in any form, including labels, brand names, company names or
product names, in the context of a commercial communication, which states or implies
that a product or trader has a positive or no impact on the environment or is less
damaging to the environment than other products or traders, respectively, or has
improved their impact over time;
(p) ‘explicit environmental claim’ means an environmental claim that is in textual form
or contained in a sustainability label;
(q) ‘generic environmental claim’ means any explicit environmental claim,
made in
anywritten form or orallyexcept, not contained in a sustainability label, where the
specification of the claim is not provided in clear and prominent terms on the same
medium;
(r) ‘sustainability label’ means any voluntary trust mark, quality mark or equivalent,
either public or private, that
is awarded or gives an impression to be awarded with
the aim aims to set apart and promote a product, a process or a business with reference
predominantly to its environmental or social aspects or both. This does not cover any
mandatory label required in accordance with Union or national law;
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(s) ‘certification scheme’ means a third-party verification scheme that is open under
publicly accessible, transparent, fair and non-discriminatory terms to all traders willing
and able to comply with the scheme’s requirements, which certifies that a product
, a
process or a business complies with certain
objectively verifiable and publicly
accessible requirements, and for which the monitoring of compliance is objective, based
on international, Union or national standards and procedures and carried out by a party
independent from both the scheme owner and the trader;
(t) ‘sustainability information tool’ means software, including a website, part of a
website or an application, operated by or on behalf of a trader, which provides
information to consumers about environmental or social aspects of products, or which
compares products on those aspects;
(u) ‘recognised excellent environmental performance’ means environmental
performance
with Regulation (EC) No. 1221/2009 or compliant with Regulation (EC)
66/2010 of the European Parliament and of the Council*, with national or regional EN
ISO 14024 type I
ecolabeling schemes officially recognised in accordance with
Article 11 of Regulation (EC) 66/2010ecolabelling schemes
in the Member States,
officially recognised in accordance with Article 11 of Regulation (EC) 66/2010, or top
environmental performance in accordance with other applicable Union law;
(v) ‘durability’ means durability as defined in Article 2, point (13), of Directive (EU)
2019/771 of the European Parliament and of the Council**;
(w) ‘software update’ means a free
any update, including
updates a security update,
that is
either necessary to keep goods with digital elements, digital content and digital
services in conformity in accordance with Directives (EU) 2019/770 and (EU) 2019/771
and other relevant Union and national law, or is provided against remuneration;
(x) ‘consumable’ means any component of a good that is used up recurrently and needs
to be replaced
or replenished for the good to function as intended;
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(y) ‘functionality’ means functionality as defined in point (9) of Article 2 of Directive
(EU) 2019/771.
________
* Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25
November 2009 on the EU Ecolabel (OJ L 27, 30.1.2010, p. 1).
** Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May
2019 on certain aspects concerning contracts for the sale of goods, amending Regulation
(EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (
OJ L
136, 22.5.2019, p. 28).’;
(2) Article 6 is amended as follows:
(a) in paragraph 1, point (b) is replaced by the following:
‘(b) the main characteristics of the product, such as its availability, benefits, risks,
execution, composition, environmental
impact, or social impact, accessories,
durability, reparability, after-sale customer assistance and complaint handling,
method and date of manufacture or provision, delivery, fitness for purpose, usage,
quantity, specification, geographical or commercial origin or the results to be
expected from its use, or the results and material features of tests or checks carried
out on the product.’;
(b) in paragraph 2, the following points (d) and (e) are added:
‘(d) making an environmental claim related to future environmental performance
without clear, objective,
publicly accessible and verifiable commitments and targets
,
and without an independent monitoring system;
(e) advertising benefits for consumers that are
a special characteristic of a product
or product category as a unique advantage or benefit when such a
characteristic is considered as a common practice
characteristic feature in the
relevant market
respect of the particular product or product category;
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(3) in Article 7, the following paragraph (7) is added:
‘7. Where a trader provides a service which compares products
and the consumer
is provided with information on the durability, reparability, environmental or
social aspects of the products or suppliers, including through a sustainability
information tool, information about the method of comparison, the products which
are the object of comparison and the suppliers of those products, as well as the
measures in place to keep that information up to date, shall be regarded as material
,
in so far as the consumer is provided with information on the environmental
aspects of the products or suppliers.’;
(4) Annex I is amended in accordance with the Annex to this Directive.
Article 2
Amendments to Directive 2011/83/EU
Directive 2011/83/EU is amended as follows:
(1) Article 2 is amended as follows:
(a) the following point (3a) is inserted:
‘(3a) ‘energy-using good’ means any good that depends on energy input (electricity,
fossil fuels and renewable energy sources) to work as intended;’;
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(b) the following points (14a) to (14e) are inserted:
‘(14a) ‘commercial guarantee of durability’ means a
the producer’s commercial
guarantee of durability referred to in Article 17 of Directive (EU) 2019/771,
or
another guarantor’s commercial guarantee of durability, under which the
guarantor offers the same or more favourable conditions to the consumer
than those provided in Article 17 of Directive (EU) 2019/771producer is
directly liable to the consumer during the entire period of that
the guarantee
of
durability for repair or replacement of the goods
, under the conditions laid
down in Article 14 of Directive (EU) 2019/771, whenever the goods do not
maintain their durability;
(14b) ‘durability’ means durability as defined in Article 2, point (13), of Directive (EU)
2019/771;
(14c) ‘producer’ means producer as defined in Article 2, point (4), of Directive (EU)
2019/771;
(14d) ‘reparability score’ means a score expressing the capacity of a good to be
repaired, based on a method established in accordance with Union law;
(14e) ‘software update’ means a free update, including a security update, that is
necessary to keep goods with digital elements, digital content and digital services
in conformity in accordance with
Articles 7 and 8 of Directives
Directive (EU)
2019/770 and
Articles 6 and 7 of Directive (EU) 2019/771;’;
(2) in Article 5, paragraph 1 is amended as follows:
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(a) the following points (ea)
, (ec) and to (ed) are inserted:
‘(ea)
where a commercial guarantee of durability on the entire good is issued, for
all goods, where the producer makes it available, information that the goods
benefit from
such a commercial guarantee of durability and its duration in units of
time, where that guarantee covers the entire good
, and
and has a
longer duration
of more than two years. This informationshall be at least as prominent as any
other information about the existence and the conditions of after-sales services
and commercial guarantees provided in accordance with point (e)
than the
minimum legal guarantee of conformity provided by Union law. The trader
shall inform the consumer about the absence of such a commercial guarantee
using a Union harmonised graphic format set out in accordance with [Annex
of this proposalDirective];
(eb) for energy-using goods, where the producer does not make available the
information referred to in point (ea), information that the producer has not
provided information on the existence of a commercial guarantee of durability of
more than two years. This information shall be at least as prominent as any other
information about the existence and the conditions of after-sales services and
commercial guarantees provided in accordance with point (e);
(ec) for goods with digital elements, where the producer makes such information
available
to the trader, the minimum period in units of time during which the
provider
producer provides software updates, unless the contract provides for a
continuous supply of the digital content or digital service over a period of time.
Where information about the existence of a commercial guarantee of durability is
provided in accordance with point (ea), the information on the updates shall be
provided if those updates are supplied for a longer period than the commercial
guarantee of durability;
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(ed) for digital content and digital services,
where the provider of digital content
and digital services makes such information available to the trader where
their provider is different from the trader and makes such information available,
the minimum period in units of time during which the provider provides software
updates, unless the contract provides for a continuous supply of the digital content
or digital service over a period of time;’
(b) the following points (i) and (j) are added:
‘(i)
where applicable, the reparability score for the goods;
(j)
when point (i) is not applicable
and the producer makes such information
available to the trader, information made available by the producer about the
availability of spare parts, including the procedure of ordering them, and about the
availability of a user and repair manual.’;
(3) in Article 6, paragraph 1 is amended as follows:
(a) the following points (ma)
, (mc) and to (md) are inserted:
‘(ma) for all types of goods, where
a commercial guarantee of durability on the
entire good is offered the producer makes it available, information that the good
benefits from such a guarantee and its duration in units of time, the goods
benefit from a commercial guarantee of durability and its duration in units of time,
where that guarantee covers the entire good and has a
longer duration of more
than two years
than the minimum legal guarantee of conformity provided for
by Union law. The trader shall inform the consumer about the absence of
such a commercial guarantee using a Union harmonised graphic format set
out in accordance with [Annex ofto this proposal Directive];
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(mb) for energy-using goods, where the producer does not make available information
referred to in point (ma), information that the producer has not provided
information on the existence of a commercial guarantee of durability of more than
two years. This information shall be at least as prominent as any other information
about the existence and the conditions of after-sales services and commercial
guarantees provided in accordance with point (m);
(mc)
for goods with digital elements, where the producer makes such information
available
to the trader, the minimum period in units of time during which the
producer provides software updates, unless the contract provides for a continuous
supply of the digital content or digital service over a period of time. Where
information about the existence of a commercial guarantee of durability is
provided in accordance with point (ma), the information on the updates shall be
provided if those updates are supplied for a longer period than the commercial
guarantee of durability;
(md) for digital content and digital services, where their provider is different from the
trader and makes such information available
the provider makes such
information available to the trader, the minimum period in units of time during
which the provider provides software updates, unless the contract provides for a
continuous supply of the digital content or digital service over a period of time.
Where the provider of digital content and digital services is different from
the trader, the trader shall provide the information about the minimum
period in units of time during which the provider provides software updates
only if the provider makes such information available;’
(b) the following points (u) and (v) are added:
‘(u) where applicable, the reparability score for the goods;
(v) when point (u) is not applicable, information made available by the producer about
the availability of spare parts, including the procedure of ordering them, and about the
availability of a user and repair manual.’;
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(4) in Article 8(2), the first subparagraph is replaced by the following:
‘If a distance contract to be concluded by electronic means places the consumer under an obligation
to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly
before the consumer places his order, of the information provided for in Article 6(1), points (a), (e),
(ma), (mb), (o) and (p).’.
Article 3
Reporting by the Commission and review
By
[5 years from adoption], the Commission shall submit a report on the application of this
Directive to the European Parliament and to the Council.
That report shall be accompanied, where appropriate, by relevant legislative proposals.
Article 4
Transposition
1.
Member States shall adopt and publish by [
18 24 months from adoption] at the latest, the
laws, regulations and administrative provisions necessary to comply with this Directive.
They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from [
24 30 months from adoption].
When Member States adopt those provisions, they shall contain a reference to this
Directive or be accompanied by such a reference on the occasion of their official
publication. Member States shall determine how such reference is to be made.
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2.
Member States shall communicate to the Commission the text of the main provisions in
national law which they adopt in the field covered by this Directive.
Article 5
Entry into force
This Directive shall enter into force on the twentieth day following its publication in the
Official
Journal of the European Union.
Article 6
Addressees
This Directive is addressed to the Member States.
Done at Brussels,
For the European Parliament
For the Council
The President
The President
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Annex to the ANNEX
Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point 2a is inserted:
‘2a. Displaying a sustainability label which is either not
neither based on a
certification scheme or not
nor established by public authorities
entities.’;
(2) the following points 4a and 4b are inserted:
‘4a. Making a generic environmental claim for which the trader is not able to
demonstrate recognised excellent environmental performance relevant to the claim.
4b. Making an environmental claim about the entire product when it actually
concerns only a certain aspect of the product.’;
(3) the following point 10a is inserted:
‘10a. 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.’;
(4) the following points 23d to 23i are inserted:
‘23d. Omitting to inform the consumer that a software update may
will negatively
impact
hinder the
functioning use of goods with digital elements or certain features
of those goods or digital content or digital service even if the software update
improves the functioning of other features.
23e. Omitting to inform the consumer about the existence of a feature of a good
Any
marketing of a good containing a feature introduced to limit its durability
, when
the trader knows or can be reasonably expected to know about it.
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23f.
Falsely C
claiming that a good has a certain durability in terms of usage time or
intensity
under ordinary normal conditions of use when it does not
and the trader
knows or can be reasonably expected to know about itas a result of a systematic
underperformance of the relevant good.
23g. Presenting goods as allowing repair when they do not or omitting to inform the
consumer that goods do not allow repair in accordance with legal requirements.
23h. Inducing the consumer into replacing
or replenieshing the consumables of a
good earlier than
necessary for technical reasons is necessary.
23i. Omitting to inform
the consumer that a good is designed to limit its
functionality when using consumables, spare parts or accessories that are not
provided by the original producer
, when the trader knows or can be reasonably
expected to know about such design limitations.’.
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