Right to repair enacted – obligations for manufacturers and importers

On 10 July 2024, the new European Directive (EU) 2024/1799 on the right to repair regarding consumer products was published in the EU’s Official Journal (for information on the draft Directive, see our article “Introducing a draft directive on the right to repair”).

The new legislation is intended to make a significant contribution to the circular economy as part of the EU Commission’s “Green Deal” project, and consequently to a more sustainable use of resources in connection with consumer products.

The Directive’s paradigmatic focus is on the newly introduced duty of manufacturers to repair the products they market outside the warranty provisions under sales law. The second pillar of the new regulation aims to foster repairs by sellers as a remedy within the scope of existing warranty law. Manufacturers can expect to incur substantial financial and logistical expenditure in some areas as a result of the new requirements.

Obligation to repair devices even outside the warranty period

The main focus of the Directive is the new obligation of manufacturers to repair products at the request of a consumer, as set out in Article 5 (1). The prerequisite is that products are involved for which the EU has already laid down requirements for reparability in the legal acts listed in Annex II. These currently include in particular domestic appliances such as washing machines, hair dryers and refrigerators. Devices with a typically short lifespan, such as smartphones and tablets, are also covered.

Although the manufacturer does not have to offer to repair the product free of charge, the price must be reasonable. It must also be carried out within a reasonable period of time, during which the consumer may be loaned a replacement product, although there is no obligation to do so.

The Directive does not limit the repair conduction to manufacturers. On the one hand, the manufacturer may make use of a third party to fulfil its obligation; on the other, the consumer should be empowered to freely choose the repair service provider. In order to create the factual conditions for this, manufacturers are prohibited from using hardware or software technology which prevents a third party from carrying out repairs. Besides this, the manufacturer is obliged to provide third parties with the information necessary for a repair. The manufacturer is not allowed to refuse to repair a product solely on the grounds that a third party has already carried out a repair.

As always, it should be borne in mind that the term “manufacturer” also covers anyone merely marketing a product manufactured by a third party under its own name or brand.

For manufacturers outside the EU, authorised representatives and importers are obligated

With regard to manufacturers without an establishment in the EU, Article 5 (3) of the Directive sets out a graduated system of responsibility for fulfilling the obligation to repair. The provision primarily addresses the manufacturer’s authorised representative. If no such representative exists within the European Union either, the importer will be obliged to perform the repair. Ultimately, the obligation will fall to the party distributing the goods in the EU.

Amendments to warranty rights under sales law

In addition to Regulation (EU) 2017/2394 and Directive (EU) 2020/1828, Directive (EU) 2019/771 in particular has been amended by the Directive. By making selective changes to the warranty rights under sales law, the lawmakers have aimed to establish repair as the preferred remedy for material defects occurring within the two-year warranty period.

To promote this goal, the non-reparability of an item will in future constitute a defect in the item. However, it is still unclear whether claims for material defects can also be asserted for fully functional products that would be non-reparable in case of a defect. In any event, the purpose of the Directive would be thwarted by the delivery of a new product which would have to be made as a consequence.

In addition to this, the warranty period is to be extended by twelve more months after the repair has been carried out. It has to be borne in mind, though, that a repair (provided it was not carried out as a gesture of goodwill) was previously considered to be an acknowledgement leading to the limitation period being restarted anyway.

Information requirements and decision support for consumers

The new Directive aims to remove the practical obstacles that could prevent consumers from deciding to have their products repaired by imposing numerous information requirements on manufacturers.

• Manufacturers must inform consumers about the obligation to repair and the prices typically charged for repairs.
• The Commission will develop a European online platform for repairs by 31 July 2027 which will enable consumers to obtain information on repairers, such as the location of repair services and terms and conditions for repairs.
• A European form for basic repair information is to be introduced. Manufacturers will be able to use this form to provide consumers with the necessary information in a standardised form.

Impact of the right to repair on the affected companies

Even if a repair does not have to be offered free of charge, industry is facing considerable financial burdens and resource-intensive measures to keep items in stock. Spare parts for products which have already been discontinued will have to be kept in stock for a long time. This economic expenditure will not always correspond to the complexity and market value of the product (see also the abstract of interview with Thomas Klindt “Right to repair” (only in German)). At the same time, repairs to the extent desired by the legislator will lead to a decline in sales of new products.

Manufacturers and importers will have to weigh up whether it is more profitable for them from an economic point of view to maintain the infrastructure for repairs themselves or to meet their obligation to repair by entering into contracts with third parties.

The Directive is to be implemented in Germany (including determining the penalties for infringements) by 31 July 2026 at the latest.

Companies affected by the new legislation should start setting up the necessary infrastructure at an early stage and create the conditions enabling them to store spare parts and make information on repairs available.

Given the significant expenditure the industry faces in implementing the Directive, one can only hope that it at least achieves its objectives in terms of environmental protection.