AUTHOR: Eline Blot

The European Commission proposed the Ecodesign for Sustainable Products Regulation (ESPR) in March 2022, as a key element in achieving the EU Green Deal’s Circular Economy Action Plan (CEAP). The Regulation would establish a framework for Ecodesign requirements, including performance requirements such as but not limited to a product’s durability, reusability, repairability, recyclability, upgradability, and environmental impact, for products sold in the EU. A fundamental element of the ESPR is the introduction of a Digital Product Passport (DPP) which would carry a product’s information requirements, providing information on performance, traceability, technical documentation, harmful chemicals, user manuals and facilitating the repair and recycling of products. 

As it stands, the co-legislators reached a provisional agreement in December 2023. Respectively, the European Parliament and the Council adopted the text of the Regulation on 23 April 2024 and 27 May 2024. In principle, the ESPR would apply 20 days following the Regulation’s adoption. However, considering the novelty of the regulatory framework, the new Ecodesign requirements would apply following the adoption of product-specific delegated acts. 

The ESPR product scope is non-exhaustive, as the adopted Regulation excludes goods such as food and feed, medical products, products of human origin, living plants, animal and micro-organisms, and vehicles where requirements are already established in other Regulations. The ENVI Committee introduced a new provision according to which the Commission’s first working plan for 2024-2027 would prioritise a first batch of products such as iron, steel, aluminium, textiles, footwear, furniture, tyres, petrochemical products (detergents, paints, lubricants), energy-related products, whose implementing measures need to be revised or newly defined, ICT products and other electronics. 

The Regulation also proposes a list of supporting measures to improve the sustainability of goods sold in the EU and empowering consumer choices, such as: 

• Implementing requirements on the destruction of unsold goods, requiring companies to publish, for example, the number of discarded products, the reasons for discarding them, and how many of the discarded products were prepared for reuse, remanufacturing, recycling, energy recovery and disposal. A ban on the destruction of unsold goods could follow for certain products with significant environmental impacts through delegated acts. The provisional agreement added a provision to ban the destruction of unsold textiles and footwear, and electrical and electronic equipment, one year after the entry into force of the ESPR (excluding SMEs). 
• Incentivising the choice for sustainable products, allowing Member States to introduce eco-vouchers or green taxation to close the price gap between status quo and more sustainable products. 
• Establishing a public online information platform allowing consumers to compare information included in the product passports. Information that is essential to the health, safety, and rights of end-users would have to be provided in physical form with the product. 
• Adopting delegated acts for green public procurement, and establishing Ecodesign requirements for public contracts, such as mandatory technical specifications, selection criteria, award criteria and contract performance clauses or targets. 
• Targeting correct eco-label use by adopting guidelines on labels indicating the performance of a particular group of products and banning misleading or confusing labels. 
• Placing obligations on online marketplaces to cooperate with the market surveillance authorities in the identification and removal of non-compliant products. 
• Strengthening market surveillance for non-compliance by requiring Member States to formulate a biennial action plan for market surveillance activities. 

The interaction between the ESPR and other EU Regulations was clarified during a webinar held by DG ENV on 22 May 2024, specifically that the general principle would be that the ESPR takes the lead in regulating products “when their environmental sustainability dimensions cannot be (adequately) addressed by other instruments.” For example, considering the Packaging and Packaging Waste (PPW) Regulation sufficiently regulates the PPW sector, meaning additional requirements under the ESPR would be unlikely, however, it remains possible for the ESPR to complement the PPW Regulation if specific action would be required in the future. 

With the new Ecodesign requirements applying to all products sold on the EU market, foreign suppliers will face new barriers when exporting these products to the EU. While Member States will be provided with support from the European Commission to ensure proper market surveillance of incoming products and their compliance with the ESPR, customs and market surveillance authorities are already faced with a daunting task. The proliferation of EU autonomous measures such as the EUDR, CBAM and now the ESPR will put extra strain on these authorities as each regulation carries its own certification/declaration process. Where possible, product declaration information should be streamlined, for example in a common DPP, and the budget for customs and market surveillance authorities should be scaled up accordingly to ensure their proper functioning. 

Supporting the uptake of common standards for circular products is of key interest to the EU to ensure both minimal impacts on trade flows and an ambitious implementation of the ESPR. The work undertaken by the International Standardisation Organisation (ISO) on circularity standards is particularly relevant in this context. The ISO has published several new standards for circularity including (i) definitions for the circular economy and an implementation guidance (ISO 59004), (ii) supporting business model transformation (ISO 59010), and (iii) minimising resource use through targets and actions (ISO 59020). These standards have been developed over five years by 75 national standardisation bodies from around the world along with experts from organisations including the Ellen MacArthur Foundation, the United Nations Industrial Development Organisation, and the World Customs Organisation.  

It is in the EU’s best interest to align its standards and practices in the ESPR’s future delegated acts with these ISO standards. Not only are these standards supported by a diverse group of international experts but by adhering to this common set of circularity standards, the EU would promote the voluntary uptake of these standards globally, fulfilling its role as a global sustainability frontrunner. 

Photo by Sahand Babali on Unsplash