In order to advance discussions between Member States on the proposed Sustainable Consumption Directive ‘Empowering Consumers for the Green Transition’, the Swedish Presidency of the Council of the EU has prepared a discussion paper that will guide the work of the Consumer Working Group on 3 April.
This directive, proposed in March 2022, aims to amend EU consumer protection legislation to give consumers a right to information on the lifetime and reparability of products (amendment of Directive 2011/83/EU ‘Consumer Rights’) and to better protect them against non-credible environmental claims (‘greenwashing’) and early obsolescence of products (amendment of Directive 2005/29/EC ‘Unfair commercial practices’).
The 28 March discussion paper which EUROPE has read focuses on the Unfair Commercial Practices Directive to make final adjustments to the compromises so far attempted (see EUROPE 13122/17, 13033/4). It provides the following clarifications:
Definitions. The definition of a generic environmental claim would continue to be limited to claims made in writing or orally (as in previous drafts of the compromise), but would be illustrated by an example in a recital, the Swedish Presidency says.
Furthermore, in response to comments from several Member States, it suggests not introducing a definition of software updates in the Unfair Commercial Practices Directive, which would not change the provisions applicable to such updates, the note says.
The definition of the certification system would be supplemented by a verification requirement and clarified, but without going into the details of this requirement in this Directive in order to leave more room for different solutions in the Member States.
Environmental claims related to future environmental performance (Article 6(2)(d)). Clarification of the implementation plan would be provided in a recital, but without mentioning that the plan should be detailed, the Presidency suggests. The same recital would further explain what is meant by ‘independent third party expert’ [for certification : Ed.] taking into account other legislation using this term, such as the proposed ‘Corporate Due Diligence’ Directive.
Annex 1 of Directive 2005/29/EC. In principle, no new items would be added to this annex, which contains the list of commercial practices that are considered unfair in all circumstances. However, the Presidency intends to invite experts from the EU27 to comment on whether they think it is appropriate to mention a subjective element and, if so, whether they accept the expression ‘while being aware’ in relation to the trader (who may be a seller) or whether they have another form of words to suggest.
Some Member States are concerned that this wording could lead to the trader (who could be a seller) remaining passive. Several Member States pointed out that traders, who are mere sellers and are not aware, for example, if a product has been designed to limit its functionality, should not be liable for failing to inform the consumer that the product has such a limitation.
In the European Parliament, the Committee on the Internal Market and Consumer Protection (IMCO) has just voted on the basis of the report by Biljana Borzan (S&D, Croatian) to call, among other things, for a ban on all generic environmental claims (see EUROPE 13151/10).
It should be remembered that this proposal for a Directive is complemented by two other more recent legislative proposals - the Framework Regulation on the communication and substantiation of green claims by companies (see EUROPE 13147/6) and the Directive on an effective consumer right to repair of defective products (see EUROPE 13147/7).
See the note from the Swedish Presidency: https://aeur.eu/f/65b (Original version in French by Aminata Niang)