On 28 June 2024, the EU published Regulation (EU) 2024/1781 establishing a framework for the setting of ecodesign requirements for sustainable products ("Ecodesign Regulation"). The Ecodesign Regulation has been in force since 18 July 2024 and is part of the European Green Deal. With the Green Deal, the European Commission aims to transform the European Union ("EU") into a competitive and climate-neutral circular economy.
To achieve this, the Ecodesign Regulation provides for minimum criteria to be applied to products in order to improve their recyclability and energy efficiency. In this way, the Ecodesign Regulation aims to permanently reduce the Union's carbon and environmental footprint. The Ecodesign Regulation thus joins a whole series of other sustainability-motivated legislation, such as the Battery Regulation (“EU-Batt-R") and the so-called Right to Repair Directive.
Material and personal scope
The Ecodesign Regulation applies to all physical goods that are placed on the market or put into service within the Union, including components and intermediate products ("Product"). Food, feed, medicinal products for human and veterinary use, living organisms and vehicles are excluded from the scope. It applies personally to economic operators who place such Products on the market or put them into service, i.e. authorised representatives, importers, distributors, dealers and fulfilment service providers in addition to manufacturers. In some cases, the Ecodesign Regulation also applies to operators of online marketplaces and online search engines.
Significant changes
Regulation instead of directive
The Ecodesign Regulation replaced the so-called Ecodesign Directive 2009/125/EC ("Ecodesign Directive") when it came into force on 18 July 2024 and applies directly in every EU member state. There is no need for transposition into national law, the EU continues its approach of uniform application of EU law. The main provisions of the Ecodesign Directive will continue to apply during a transitional phase of at least two and a half years.
A hull law will likely remain from the respective national implementation of the Ecodesign Directive (in Germany the EVPG): In any case, sanctions and the responsibilities of the authorities will be governed nationally by the member states.
Extension of the scope of application to basically all goods
In order to contribute to the functioning of the internal market and at the same time ensure a high level of environmental protection, the European Commission has extended the scope of the Ecodesign Directive to as many Products as possible. The ecodesign requirements apply primarily to Products (or their raw materials) with a high environmental impact, such as Products containing iron, steel or aluminium, but also Products such as textiles (especially garments and footwear), furniture (including mattresses), tyres, detergents and paints, lubricants, chemicals, energy related products and information and communication technology Products and other electronics. There is therefore no longer a restriction to energy related products such as washing machines, refrigerators or motors.
More sustainable product design - Ecodesign requirements
The ecodesign requirements cover the entire life cycle of the respective Product, from manufacture, transport and operation to disposal or recycling. The Ecodesign Regulation itself provides the framework for the specific ecodesign requirements (see Article 5 Ecodesign Regulation).
Within this framework, certain minimum requirements are imposed on the Products concerned to ensure the sustainability of Products. Consequently, the Ecodesign Regulation itself does not set any specific requirements for Products. Instead, the European Commission fills these with life by adopting (subordinate) delegated acts (Article 4 para. 1 Ecodesign Regulation). The delegated acts set requirements for the reliability, reusability, reparability, energy use and energy efficiency of the specific product group they address. In addition, the delegated acts define the digital product passport (e.g. regarding commodity codes, unique product identifiers, instructions) and stipulate requirements for the label to be affixed to the Products (particularly with regard to the content, layout and manner in which the label is to be displayed to customers).
The Ecodesign Regulation provides that economic operators are entitled to a transitional period of 18 months from the respective entry into force of the delegated act to implement the ecodesign requirements contained therein. However, attention is required here: The delegated acts are adopted relatively quietly. They shall enter into force immediately unless the European Parliament or Council objects to the delegated act within two months.
Extended information obligations and introduction of a digital product passport
The extension of the ecodesign requirements is accompanied by extended information obligations for economic operators (see Article 7 Ecodesign Regulation). For example, economic operators must provide information on the product parameters listed in Annex I of the Ecodesign Regulation (e.g. material composition, lifetime and upgradability indicators) on durability, reparability, carbon and environmental footprint and substances of concern. This should make it easier for customers and other parties (authorised representatives, importers, distributors, dealers, fulfilment service providers) to make sustainable product decisions.
In order not to lose track of the numerous information obligations, the Ecodesign Regulation introduces the digital product passport. This should enable stakeholders along the value chain and consumers to quickly and easily access relevant information regarding the Products. Accordingly, in addition to the above-mentioned criteria, this product passport will contain information on the environmental sustainability of Products, whereby the exact requirements will also be specified by the European Commission in a delegated act. The first delegated act may enter into force not earlier than 19 July 2025. A comparison with the battery passport provisions of the EU-Batt-R shows that both passports contain a wide range of information and standardise safety requirements and compliance with technical standards. Both regulations also stipulate that the passports must be interoperable with other product passports in order to ensure consistent communication and data transfer.
To enable that the competent national authorities, the customs authorities and the European Commission have direct access to the product information, the European Commission will set up a central digital registry by 19 July 2026, in which it will include the product passport. This will store at least the unique identifiers, and for some Products also the commodity code or the unique identifiers for batteries as defined in the EU-Batt-R.
Framework for preventing the destruction of unsold consumer products
The Ecodesign Regulation also imposes a prohibition to destroy unsold consumer products (see Article 25 Ecodesign Regulation). This affects apparel and clothing accessories as well as footwear. However, the European Commission can extend the list of Products by means of a delegated act. Accordingly, economic operators should always monitor new delegated acts of the European Commission, whereby there will also be transitional measures or periods here.
In addition to this prohibition, economic operators must in principle take the necessary measures to prevent unsold consumer products from being destroyed (see Article 23 Ecodesign Regulation). The necessity of such measures is to be assessed according to reasonable judgement, leaving a certain amount of leeway.
The information obligations regarding unsold consumer products are worded more specifically. Economic operators who destroy unsold consumer products or have them destroyed are obliged, among other things, to report on the number and weight of Products discarded per year and the reasons for discarding. The European Commission will specify the details for the disclosure of the aforementioned information in an implementing act which shall be in force the latest on 19 June 2025.
What does this mean for the economic operators concerned?
In summary, the individual economic operators are subject to the following obligations:
- Manufacturer:
Most obligations apply to the manufacturer. A manufacturer is any natural or legal person that manufactures a Product or that has a Product designed or manufactured, and markets that Product under their name or trademark. Manufacturers have to ensure that their Products fulfil the ecodesign requirements. In addition to performance and information obligations and their obligation to provide a digital product passport including all relevant product information, manufacturers have to carry out a conformity assessment procedure and affix the CE marking.
- Authorised representative:
Authorised representative means any natural or legal person established in the Union that has received a written mandate from the manufacturer to act on the manufacturer’s behalf in relation to specified tasks with regard to the manufacturer’s obligations under this regulation. The appointment of an authorised representative is not mandatory but is voluntary. In principle, the authorised representative does not have the same obligations as the manufacturer. They are only subject to retention obligations with regard to the EU declaration of conformity and the technical documentation as well as cooperation obligations towards the market surveillance authorities. In particular, the authorised representative does not have to ensure that the Products comply with the ecodesign requirements, that the manufacturer has fulfilled its information obligations or prepare the technical documentation himself.
- Importer:
An importer within the meaning of the Ecodesign Regulation is any natural or legal person established in the Union that places a Product from a third country on the Union market.
Among other things, he must ensure that the manufacturer has fulfilled his obligations. In particular, this includes to check that the manufacturer has carried out a conformity assessment procedure, that the CE marking has been affixed, that all necessary information is available and that a product passport is available. Like the manufacturer the authorised representative is also subject to cooperation obligations.
- Distributor:
Distributor is any natural or legal person in the supply chain, other than the manufacturer or the importer, that makes a Product available on the market. Distributors must ensure that the necessary information is available. They must also check whether the manufacturer and importer have fulfilled their obligations.
- Dealer:
A dealer is a distributor or any other natural or legal person that offers Products for sale, hire or hire purchase, or that displays Products, to end users in the course of a commercial activity, including through distance selling; and includes any natural or legal person that puts a Product into service in the course of a commercial activity. Dealers also have certain information obligations towards end users and must ensure that only compliant Products are sold.
- Fulfilment service provider:
Fulfilment service providers have significantly fewer obligations compared to other economic operators. They must ensure that the conditions during storage through to dispatch of the Products are not compromised.
Summary of the implementation deadlines
The Ecodesign Regulation came into force on 18 July 2024. Due to numerous transitional provisions in Article 79 of the Ecodesign Regulation, many provisions of the Ecodesign Directive will continue to apply for a transitional period of around two and a half years.
Individual provisions of the Ecodesign Directive (e.g. the provisions on the conformity assessment procedure or the information requirements for consumers) continue to apply until 31 December 2026 for Products such as photovoltaic panels, vacuum cleaners, ventilation units, computers and numerous other Products.
For other Products governed by the European Commission's implementing measures under Article 15 of the Ecodesign Directive (such as washing machines and tumble dryers, televisions, monitors and tyres), the provisions of the Ecodesign Directive will remain in force until 31 December 2030 (see Article 79 para. 1 lit a) ii) Ecodesign Regulation).
Furthermore, according to Article 79 para. 1 lit b) of the Ecodesign Regulation, the previous implementing measures (e.g. regarding the importer's obligations under Article 4 of the Ecodesign Directive) remain in force until they are repealed or amended by new delegated acts in accordance with the Ecodesign Regulation. Whether these implementing measures for the respective product groups will be adapted or replaced by new ones cannot be assessed conclusively at this stage. An impact assessment by the European Commission and a consultation with the relevant stakeholders will be decisive for this.
The first delegated act under the Ecodesign Regulation will enter into force on 19 July 2025 at the earliest according to Article 4 para. 7 of the Ecodesign Regulation. Economic operators will then generally have a transitional period of 18 months from the entry into force of the respective delegated act to fulfil the ecodesign requirements, although this may be waived in exceptional cases.
The ban on the destruction of unsold consumer products will apply from 19 July 2026, although it will not apply to medium-sized enterprises until 19 July 2030.
What are the penalties for a violation?
In principle, Member States are obliged to adopt provisions on penalties for infringements of the Ecodesign Regulation (see Article 74 Ecodesign Regulation). The Member States must at least impose fines or time-limited exclusion from public procurement procedures.
It remains to be seen how the German legislator will fulfil this obligation. As the Ecodesign Regulation replaces the Ecodesign Directive, only an amended part of the former implementational law - the Act on the Environmentally Sound Design of Energy-related Products (EVPG) - will probably remain in place. On the one hand, this could affect the sanctions, according to which fines of up to EUR 50,000 were possible under the EVPG. However, it cannot be ruled out that fines of up to EUR 800,000 will be implemented, as provided for in the ministerial draft on the EU Battery Adjustment Act, which aims to align the national battery law with the European Batteries Regulation.
Additionally, the Ecodesign Regulation provides for consumer claims for damages in the event of non-compliance of Products (see Article 76 Ecodesign Regulation). In this case, the manufacturer is primarily liable. If the manufacturer is not based in the EU, the importer or an authorised representative of the manufacturer is liable. If neither an importer nor an authorised representative is based in the EU, the fulfilment service provider is liable.
Conclusion
The Ecodesign Regulation marks a significant step towards a more sustainable product policy in the EU that contributes to achieving climate targets and promoting environmental protection. Even though no new obligations will apply directly to economic operators from 18 July 2024, they must nevertheless prepare for extensive changes and take early action to fulfil the new requirements. It is therefore advisable for affected companies to observe the transitional periods and monitor developments regarding the delegated acts in order to make the necessary adjustments in good time and avoid penalties.
