Member State experts are making slow progress on the proposed EU Ecodesign for Sustainable Products Regulation (ESPR), which will establish a framework for setting ecodesign and information requirements for all products except food, feed and medicines.
The preliminary examination of the substance of the March 2022 text (Article 20 on the fate of unsold products and Article 5 on substances of concern) continues from the point of view of the competitiveness of European industry, while some progress has been made on the distribution of powers between the European Commission and the EU Council (comitology rules), according to two discussion documents prepared by the Swedish Presidency of the EU Council to guide the continuation of technical work in the search for a compromise within the Working Party for Competitiveness and Growth.
Comitology. With regard to ecodesign standards with which Member States want to be closely associated (see EUROPE 13149/9), a Presidency note dated 23 March indicates that, according to the EU27 ambassadors to the EU (Coreper), a majority of Member States could agree to revert to delegated acts, provided that this is combined with clearer criteria and principles on how ecodesign requirements will be set, that Member States or their experts are more involved in the development of these requirements and that implementing acts are still used in other parts of the text.
However, everything remains to be clarified. The experts, who discussed this on 27 March, were invited to comment on the Presidency’s preliminary suggestions, for example:
- for the expert group and the working plan (Articles 16 and 17A), it may still be possible to clarify and/or define the way in which the Commission is to consult Member States on draft delegated acts in the specific context of this Regulation. For example, it could be explored how Member States are involved in the preparatory phase of the development of an ecodesign requirement, the Presidency points out.
- for the functioning of the group of Member States’ experts (established by the Commission), it could be foreseen that the Commission adopts a declaration to be annexed to the Regulation, once it has been adopted, promising to ensure adequate consultation of the Member States, within a sufficient timeframe, on all delegated acts.
- it could also be envisaged that the Member States’ expert group be informed or consulted on additional elements such as: - the implementation of the Regulation, including the level of market surveillance; - measures to improve compliance with the Regulation by economic operators and customers; - the establishment of portals to facilitate access to legislation, including guidelines for economic operators; - the focus on circular economy actors; - support for SMEs, etc.
Make the working plan an implementing act. According to the Presidency, one way of clarifying which products the Commission will regulate as a priority could be to add additional criteria to Article 16(1). Another way to ensure Member State involvement could be to consider the working plan - currently in the form of a Commission Communication inspired by the experience of the Ecodesign Directive - as an implementing act. However, this implementing act could still be an indicative list, which would not prevent the Commission from starting to prepare the development of ecodesign requirements before the adoption of the first implementing act establishing the working plan, the note says.
Unsold products (Article 20). In a note of 29 March to the Working Party for Competitiveness and Growth, which met on Monday 3 April, the Swedish Presidency invited the experts to discuss compromise options.
In order to satisfy all Member States, the prohibition on the destruction of unsold consumer products under Article 20 would be transformed into an implementing act and the reworded Article would be divided into several Articles to make it easier to read.
Definitions will be clarified. For example, for the definition of the term ‘discard’ (in the sense of ‘scrapping’, ‘throwing away’), which has no independent definition in the Waste Framework Directive (2008/98/EC), but is an essential element of the definition of ‘waste’ in that Directive (Article 1), the Swedish Presidency suggests a wording which, in a recital, would explain that the interpretation of the ESPR Regulation should be aligned with the Waste Framework Directive.
Furthermore, the Presidency suggests that a principle be included in a new Article stating that the destruction of unsold consumer products should be avoided by economic operators.
Reference would be made, in a recital, to compliance with the waste hierarchy of the Framework Directive 2008/98/EC.
In order to clarify the obligation to put in place a policy to prevent destruction (Article 20(a)) and to facilitate its implementation, the Presidency proposes that economic operators subject to this obligation should report regularly on their performance and that SMEs should be exempted from this obligation. The notion of what could be ‘an easily accessible page of their website’ could be clarified in a recital.
Substances of concern (Article 5). In particular, the Swedish Presidency proposes to clarify that the Commission may set thresholds when the information requirement (Articles 7(2) and 7(5) referring to the EU Chemicals Strategy for Sustainability) applies. In addition, it could be specified that the information requirements on substances of concern for the product groups concerned will be set, with some exceptions. The wording on exceptions could, in line with Article 5, be amended to clarify how the Commission will assess whether exceptions should be adopted.
See the note of 23 March: https://aeur.eu/f/66i
And the note of 29 March: https://aeur.eu/f/66k (Original version in French by Aminata Niang)