Is a Dutch ‘right to repair’ legally feasible?

A ban on destruction of unsold products (such as clothing and footwear) and the right to repair, are important measures with a view to the transition to a circular economy. Researchers from the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL) at Utrecht University have investigated the possibilities – in anticipation of or in addition to European legislation – for a national ban on destruction of unsold products and a national right to repair (for products outside the legal guarantee). The study commissioned by the Ministry of Infrastructure and Water Management (IenW) was presented to the Dutch House of Representatives by the State Secretary of IenW on 27 May 2024.

On both subjects, European legislation is in preparation, namely the Ecodesign Regulation and the Directive on promoting the repair of goods. Anticipation of European legislation is possible to a limited extent, but national legislation may not conflict with European rules aimed at preventing trade barriers.

National ban on destruction of unsold products

The study shows that under European law there is only room for a Dutch general destruction ban of unsold products, i.e. applicable to all product groups, if there are no European destruction bans yet. For some product groups it has already been established that there will be a European destruction ban, such as unsold clothing and footwear, so that such a general national destruction ban is not possible. For product groups for which there is no European destruction ban, there is legal scope for a national ban per product group.

Such a measure will have to be tested against the Treaty on the Functioning of the European Union, the proportionality principle and the loyalty principle. This will look at whether the national measures result in a prohibited quantitative restriction on imports or exports. Such restrictions are only allowed if the justification clearly indicates why it is justifiable from the public interest (e.g. environmental protection) to take national measures. Anticipating an already announced European destruction ban has the risk that it will be overtaken in time by the European destruction ban and the European Commission will therefore not accept the national ban.

Right to repair

There is no general definition of a ‘right to repair’. The study includes several measures such as a duty for the manufacturer to repair goods at the consumer's request outside the seller's legal liability, a repair bonus and a repair index. The study shows that there is little scope to adopt similar measures at national level in anticipation of the entry into force of the promotion-of-repairs Directive.

However, it is legally possible to introduce a repair obligation for the manufacturer at national level when a product group is not (yet) covered by the directive, although this will have to be tested against the Treaty on the Functioning of the EU, the proportionality principle and the loyalty principle. There are also possibilities to introduce a national repair bonus, for instance. Even then, the treaty and principles, as well as the Services Directive, will have to be assessed. The necessity of the measure will have to be well substantiated. Depending on the scheme, repair by foreign providers may become less attractive for consumers in the case of a national repair bonus.