The Ecodesign for Sustainable Products Regulation (ESPR) is a European Union (EU) regulation that aims to make products more environmentally sustainable. The ESPR came into effect on July 18, 2024, and replaces the Ecodesign Directive (2009). The ESPR aims to reduce the environmental and climate impact of products sold in the EU by establishing ecological design standards and making products more durable, reusable, and recyclable. The ESPR also bans the destruction of unsold consumer products in certain categories, such as textiles. Additionally, to enhance transparency and that both consumers and authorities have product sustainability information, the ESPR requires digital product passports (DPP) for all in-scope products. The success of the ESPR will ultimately depend on implementing acts and their enforcement by Member States.
In an online workshop held on 21 November 2024, we brought together experts to set out the objectives of the ESPR and discuss the legal challenges of implementing them in practice. The workshop adopted a crosscutting approach to explore the difficulties in ensuring the functionality and integrity of digital product passports as well as securing consumer rights for products within a circular economy. In this context, emphasis was placed on four key sectors: textiles, construction, chemicals and electronics.
The first session, chaired by Professor Alex Cavoksi (University of Birmingham Law School), provided a critical overview of the ESPR. Representatives from the European Commission, Anna Szajkowska and Paola Zanetti, shared insights into the negotiation process, highlighting challenges including defining the scope of the ESPR, how to effectively capture online sales, ensure full integration with other related EU acts, and how to include the social dimensions particularly employment-related questions - in delegated acts. Valeria Botta,Head of Circular Economy and Nature at the Environmental Coalition on Standards (ECOS), an international NGO, emphasised the need for the EU to actually reduce its consumption and not just promote eco-design if it is to become sustainable. Professor Rosalind Malcolm (University of Surrey) provided a long view on the significant, positive evolution that has occurred within the EU moving towards a more circular product orientated regulatory approach. However, she also cautioned that integrating full life cycle assessment of materials into law will require lawyers to overcome horizontal, intermediate and sectoral challenges.
Digital product passports (DPP) are considered an important tool to enable greater integration across material value chains and aid the transition to a more circular sustainable economy. The workshop’s second panel, focused on DPPs, opened with Andrea Charlson, from Madcaster, an online platform that create and manage digital material passports. Andrea shared real-world examples of how the construction industry is developing DPPs for building renovation projects in the UK. Despite the exponential rise in demand for data, she highlighted the existing reluctance to share data by many businesses, as such hindering the transition to a more circular construction sector. The main barriers to the sharing of more data are largely down to a lack of trust between actors within the construction sector as well as traditional corporate secrecy. Another challenge in rolling out DPPs is technical and regulatory complexity, across and between sectors. Professor Laura Piscicelli (Utrecht University) provided a detailed analysis of the challenges to developing DPPs and how these vary for different products and sectors. For example, when developing a DPP designers need to determine (i) what data to include, (ii) who to share information with, (iii) the level of data accuracy required, resolving accountability and transparency demands, and (iv) how long the data should be stored for. DPP data systems themselves can either be centralised or decentralised, each of these approaches with implications for control, access and security over data for all users. The DPP structure will also have important implications for energy usage, and therefore the operational greenhouse gas emissions footprint, an increasingly important factor in the design of digital systems infrastructure. Sean Thomas (University of York) argued that DPPs could enable a paradigm shift in business models towards greater circularity both reducing raw material demand and waste. However, he cautioned that such systems could also lead to elite capture, where a a small number of companies dominate the market, using commercial contract and intellectual property laws. This could create monopolies similar to those seen currently with big tech companies such as Google and Microsoft, adding further to wealth inequality.
Before concluding with sectors-specific discussions, the workshop examined a range of issues that could come up with the ESPR for consumer rights. The ESPR has updated obligations and allows for the establishment of more coherent requirements for durability, repairability and warranties. Vibe Ulfbeck (University of Copenhagen) began the session by setting potential positive and negative private law implications for consumers from the ESPR’s implementation. She argued that the ESPR changes the subjects of contractual liability, including manufacturers, importers and service providers as liable parties. However, Professor Ulfbeck also noted that responsibility for non-compliance with ESPR requirements on durability and repairability, along with the concept of damages, still need to be effectively addressed. The second speaker Professor Beltrán Puentes Cociña (Universidade de Santiago de Compostela) offered a focused analysis of repairability and warranty issues that arise from the ESPR. He raised the numerous challenges of creating new markets or reorganizing existing ones to accommodate the right to repair and ensure necessary conditions, such as local repairers and availability of parts. He stressed that conditions must be accessible for all consumers, particularly low-income consumers. Lastly, Eléonore Maitre-Ekern (Norwegian Institute for Water Research) outlined how the is a significant evolution which complements the developments in EU waste law, placing greater emphasis on consumer law and behaviour, enhancing prevention and developing further the concept of extended producer responsibility. She argued that, if fully implemented, the ESPR will be an important driver to achieving a sustainable circular economy within planetary boundaries.
In the workshop’s final session, the impacts of the ESPR on four key sectors – textiles, construction, chemicals and electronics – was discussed in detail. Colette van der Ven (Tulip Consulting, Geneva) presented a comprehensive evaluation of the potential benefits throughout the supply chain for textiles sector. However, she also raised a cautionary note on the impact that changes could have on workers in the developing countries from circular on-shoring within the EU. Professor Jonas Voorter (University Hasselt) provided an overview of how the ESPR interconnects with the revised Construction Products Regulation (CPR), which also includes provisions on DPP and public procurement. Jonas argued that the ESPR could act as a safety net to the revised CPR but cautioned that there could be conflicts if implemented inconsistently. The next speaker Tim Becker (REACHLaw, Helsinki) covered the chemicals sector. He highlighted several fundamental challenges that lay within the chemicals sector when it came to moving ahead with the ESPR including a lack of consensus of definitions specifically substances of concern. The final speaker Dr Carl Dalhammar (Lund University) focused on the electronics sector, highlighting issues particularly relating to durability, repairability, and end of life. Carl argued that although DPPs could be used to differentiate fees and responsibilities to incentivize alternative more circular business models, doing so will need a robust regulatory framework.
In conclusion this workshop recognises that the ESPR 2024 represents an important step by the EU in its commitment to transitioning to a sustainable and circular economy. The workshop provided a rapid review of key issues and potential challenges, mainly relating to DPP and consumer rights, that must be considered in implementation if the ESPR is to effectively reach its goals. The ESPR’ success depends on numerous implementing mechanisms, including for key tools such as DPPs, extended producer responsibility, durability and repairability standards and criteria. Additionally, the implementing regulations of other EU legislation related to particular sectors such as construction and chemicals will also have an impact on the ESPR. The journey ahead for the ESPR is not straightforward. Ultimately, the success of the regulation will depend on collaboration between policymakers, businesses, and consumers. Shifting geopolitical conditions are impacting priorities in the EU, as they are in many states in the global economy. Whether there will be the enthusiasm and bandwidth amongst member states to take forward ambitious implementing legislation for the ESPR remains to be seen.
Authors: Feja Lesniewska (University of Surrey), Heloísa Oliveira (Lisbon Public Law) and Kleoniki Pouikli (Utrecht University)
