Beltrán Puentes Cociña (PhD Candidate at the University of Santiago de Compostela)
Humanity has been engaged in the struggle for sustainability for at least 30 years. Since the Rio de Janeiro Earth Summit in 1992, there have been many political, economic, and social initiatives for a sustainable development that makes human activities compatible with the ecological limits of the planet. One of the latest and most relevant is the circular economy strategy[i]/[ii].
1. The first EU Action Plan for the Circular Economy (2015)[iii]
The current model of production and consumption follows a linear sequence. It is based on the extraction of natural resources, the mass manufacture of products, the over-consumption of short-lived products and the generation of a huge amount of waste that is either incinerated or landfilled. Growth policies encourage the demand for more and more products, so that a country’s economy grows when its consumption and production increase.[iv]
To overcome this unsustainable model, the circular economy seeks to maintain the value of products, materials, and resources in the economy for as long as possible, in such a way that the lifespan of appliances is extended, the possibilities for reuse and repair are multiplied, the use of planned obsolescence is eliminated, waste generation is reduced to a minimum and, ultimately, all waste is valorised and treated as a real resource. This would “close the loop” of the economy, as proclaimed in the first EU Action Plan for the Circular Economy.
This plan proclaimed the need to act on all stages of the production chain, but it had almost all its legislative development in the field of waste. Together with the plan, the Commission presented a package of legislative proposals which were finally adopted by the European Parliament and the Council in May 2018[v] and which reformed most of the directives in the waste sector (the Waste Framework Directive and the sectoral directives on landfills, packaging and packaging waste, end-of-life vehicles, batteries, accumulators and their waste, and waste electrical and electronic equipment). The main objectives of the reform were to advance in the application of the old waste hierarchy principle and, consequently, to promote new instruments or best practices to avoid waste generation (prevention) and to promote reuse and recycling. We have analysed this legislative reform in previous works.[vi]
2. The new EU Action Plan for the Circular Economy (2019): a shift of focus to the production and consumption phases[vii]
A broad, ambitious, and transformative concept of the circular economy should not only include waste policies. To achieve the “systemic change” sought by the European Commission, it is necessary to act with new instruments on all phases of a product’s life cycle: extraction, design, production, distribution, consumption, and waste management. Especially the design phase, where more than 80% of a product’s environmental impacts are estimated to be determined.[viii]
Product eco-design is set to play a more prominent role in the current mandate of President Von der Leyen as one of the key elements of the EU’s second Action Plan for the Circular Economy, adopted as part of the European Green Deal.[ix]
The plan proposes ambitious targets for implementing the circular economy in the area of eco-design, including a proposal for a future revision of the Ecodesign Directive to extend its scope beyond energy-related products. However, the Commission did not accompany the plan with a legislative proposal (as it had done with the 2015 plan on waste), and no initiative has been taken in this area to date. The document also proposed the introduction of new circular economy criteria in the Ecodesign Directive and its implementing regulations, with the goals of promoting the durability, repairability, reusability and upgradability of products.
3. The challenges of product ecodesign in the circular economy
Product eco-design needs to be rethought according to the new paradigm of the circular economy. Products must be designed in such a way as to maximise their lifespan. This requires joint action in three crucial areas: combating planned obsolescence, guaranteeing the right to repair products, and promoting their reuse.
a) Planned obsolescence and product durability
Planned obsolescence can be defined as the intentional production of goods and services with a limited lifespan in a way that encourages consumers to repeat purchases too frequently.[x] Companies design products with a limited lifetime and thus force consumers to replace them more quickly than they would have wanted or needed.[xi]
A number of interesting initiatives have been taken so far, some with a direct impact such as the criminalisation in the French Consumer Code and others with a more indirect impact such as the reform of European consumer protection legislation. The new Directive (EU) 2019/771 on the sale of goods introduces durability as a new criterion of conformity between seller and buyer, although this is done in a discreet manner in that no mention is made of the passing of time.[xii] The opportunity has also been missed to introduce longer warranty periods and to establish a hierarchy of remedies so that repair is prioritised over replacement of the appliance.
Moreover, other measures with a more direct impact at European level should include the necessary amendment of the Ecodesign Directive to include durability criteria or the prohibition of software updates that have a negative impact on appliances, which has been introduced on a sectoral basis in various EU regulations for specific product categories (electric motors, dishwashers, washing machines, refrigeration appliances…).
b) The right to repair products
There are several conditions that may hinder the right to repair products[xiii], such as the impossibility of disassembly or the unavailability of spare parts. The new Directive on the sale of goods allows sellers to use spare parts in order to fulfil their repair obligation in case of lack of conformity at the time of delivery. The Directive does not oblige sellers to guarantee the availability of spare parts for a certain period of time as an objective requirement of conformity, an issue that has been a major waiver by the European legislator in regulating the obligations to be imposed on the seller. However, this obligation has been addressed by the above-mentioned ecodesign regulations of 2019, which establish a 10-year period for the existence of spare parts.
Another important waiver by the Commission was not to limit the marketing of products that cannot be dismantled and therefore cannot be repaired, an issue that the Commission’s own services have identified as a particularly relevant barrier to moving towards a true circular economy.
c) Promoting the reuse of products
The design of a product conditions and limits the possibilities of reusing a product, which is why the impacts related to the end-of-life phase must be considered when programming or designing products. Reuse is a more environmentally beneficial operation than recycling, which is why the Waste Framework Directive itself places this operation at the top of the hierarchy of waste operations, only preceded by prevention. However, the 2018 reform of the Waste Framework Directive did not introduce differentiated targets for both operations, thus abandoning the possibility of promoting especially the reuse of products over recycling.
Product eco-design is an evolving and developing policy area. The circular economy strategy has provided a decisive impetus for the revision of eco-design legislation, with the aim of introducing new requirements for durability, repairability and reusability of products. However, the ambitious goals are not always matched by progress in legal changes. Many of the potential reforms in the area of eco-design, the fight against planned obsolescence and the right to repair products are limited or slowed down by the prevalence of producers’ economic interests over environmental protection objectives. The implementation of the circular economy strategy and the promised revision of the eco-design legislation are elements that, if adopted with due ambition, invite us to think about a change of model towards a more ecological products design and manufacturing.
[i] A previous and extended version of this paper was published in: Nogueira López, A. & Vence Deza, X. [Dirs.], Redondear la economía circular. Del discurso official a las políticas necesarias, Thomson Reuters Aranzadi, 2021.
[ii] This research was carried out with the funding of the Research Grants from the Fundación Banco Sabadell [“Ayudas a la Investigación 2020-2021. Convocatoria para predoctorales”].
[iii] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Closing the loop – An EU action plan for the Circular Economy [COM/2015/0614 final].
[iv] Martínez, A. N. & Porcelli, A. M. (2016): “Un difícil camino en pos del consumo sustentable: el dilema entre la obsolescencia programada, la tecnología y el ambiente”, Lex: Revista de la Facultad de Derecho y Ciencia Política de la Universidad Alas Peruanas, vol. 14, nº 18, pp. 333-378.
[v] Directives (EU) 2018/849, 2018/850, 2018/851 and 2018/852 of the European Parliament and of the Council of 30 May 2018.
[vi] Puentes Cociña, B. (2021): “An Analysis of the Circular Economy Legislative Package: A New Paradigm vs The Old Waste Law”, in M. BOEVE, S. AKERBOOM, C. BACKES & M. VAN RIJSWICK (eds.), Environmental Law for Transitions to Sustainability, Intersentia.
[vii] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A new Circular Economy Action Plan for a cleaner and more competitive Europe [COM/2020/98 final].
[viii] European Commission, Directorate-General for Energy, Directorate-General for Enterprise and Industry, Ecodesign your future: how ecodesign can help the environment by making products smarter, 2014.
[ix] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Green Deal [COM/2019/640 final].
[x] London, B. (1932): Ending the Depression Through Planned Obsolescence, University of Wisconsin.
[xi] Malinauskaite, J. & Bugra Erdem, F. (2021): “Planned obsolescence in the Context of a Holistic Legal Sphere and the Circular Economy”, Oxford Journal of Legal Studies, 41, 3, pp. 719–749.
[xii] García Goldar, M. (2021): “Propuestas para garantizar modalidades de consumo y producción sostenibles (ODS 12)”, Revista De Fomento Social, 299, 91-114.
[xiii] Svensson, S., Richter, J. L., Maitre-Ekern, E., Pihlajarinne, T., Maigret, A., & Dalhammar, C. (2018): “The Emerging ‘Right to Repair’ legislation in the EU and the U.S.”, paper presented at Going Green Care Innovation 2018, Vienna, Austria.
Picture credits: jplenio.