Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸7 unchanged paragraphs

on the proposal for a directive of the European Parliament and of the Council on amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information

(COM(2022)0143 – C90128/2022 – 2022/0092(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2022)0143),

– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90128/2022),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Added– having regard to the opinion of the European Economic and Social Committee of 13 July 2022,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the opinion of the Committee on the Environment, Public Health and Food Safety,

Changed– having regard to the report of the Committee on the Internal Market and Consumer Protection (A90000/2022),(A9-0099/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedRecital 4: (4) Environmental claims, in particular climate-related claims, increasingly relate to future performance in the form of a transition to carbon or climate neutrality, or a similar objective, by a certain date. Through such claims, traders create the impression that consumers contribute to a low-carbon economy by purchasing their products. To ensure the fairness and credibility of such claims, Article 6(2) of Directive 2005/29/EC should be amended to prohibit such claims, following a case-by-case assessment, when they are based solely on carbon offsetting schemes or are not supported by clear, objective and verifiable commitments and targets given by the trader, including a detailed and realistic implementation plan to achieve the objectives set. That plan should include concrete and verifiable interim targets consistent with achieving the trader's long-term commitment, underpinned by a sufficient budget and based only on existing economically and technically viable technologies. The implementation plan, as well as the progress made throughout its implementation, should be made publicly available online and regularly reported upon by the trader. Claims should also be supported by an independent monitoring system to monitor the progress of the implementation plan, the trader’s commitments and targets. Claims related to future environmental performance should not be used on product level, as they could mislead as to the current environmental performance of the concrete product i…

AddedRecital 1: (1) In order to tackle unfair commercial practices that deceive consumers and prevent them from making sustainable consumption choices, such as practices associated with the early obsolescence of goods, misleading or false environmental claims (“greenwashing”), non-transparent, non-certified and non-credible sustainability labels or sustainability information tools, specific rules should be introduced in Union consumer law. This would enable national competent bodies to address those practices effectively. By ensuring that environmental claims are reliable, clear, understandable and fair, consumers will be able to choose products that are genuinely better for the environment than competing products. This will encourage competition towards more environmentally sustainable products, thus reducing negative impact on the environment. Companies also have a role to play in promoting a green transition and greater sustainability of the products they produce and sell on the internal market.

RemovedRecital 7: (7) The displaying of sustainability labels or sustainability information tools which were not pre-approved by a national authority should be prohibited by including such practices in the list in Annex I to Directive 2005/29/EC. Sustainability labels or sustainability information tools that have been pre-approved by a competent national authority should be recognised by all Member States, according to the principle of mutual recognition, and should fulfil certain minimum requirements. The Commission should set out in a delegated act the minimum requirements for such labels and tools. The Commission should be empowered to adopt an implementing act to lay down the procedure for pre-approval of sustainability labels and sustainability information tools. Sustainability labels established by public authorities should be exempt from the pre-approval procedure. This rule complements point 4 of Annex I to Directive 2005/29/EC which prohibits claiming that a trader, the commercial practices of a trader, or a product has been approved, endorsed or authorised by a public or private body when it has not, or making such a claim without complying with the terms of the approval, endorsement or authorisation.

AddedRecital 3: (3) In order to deter traders from deceiving consumers as regards the environmental or social impact, durability or reparability of their products, including through the overall presentation of the products, Article 6(1) of Directive 2005/29/EC should be amended by adding the environmental or social impact, durability, reusability, recyclability and reparability of the product to the list of the main characteristics of the product in respect of which the trader’s practices can be considered misleading, following a case-by-case assessment. Information provided by traders on the social sustainability of products, such as working conditions, charity contributions or animal welfare, should not mislead consumers either.

RemovedRecital 9 a (new): (9a) Annex I to Directive 2005/29/EC should also be amended to prohibit environmental claims being made that state that a good has a neutral or positive carbon emissions’ impact on the environment. Examples of such environmental claims are ‘carbon neutral’, ‘carbon positive’, ‘climate neutral’, ‘CO2 neutral’, ‘carbon neutral certified’. Such claims should be prohibited as they imply carbon emissions’ neutrality which is scientifically impossible to substantiate. Sustainability labels containing environmental claims should also be prohibited.

AddedRecital 4: (4) Environmental claims, in particular climate-related claims, increasingly relate to future performance in the form of a transition to carbon or climate neutrality, or a similar objective, by a certain date. Through such claims, traders create the impression that consumers contribute to a low-carbon economy by purchasing their products. To ensure the fairness and credibility of such claims, Article 6(2) of Directive 2005/29/EC should be amended to prohibit such claims, following a case-by-case assessment, when they are based solely on carbon offsetting schemes or are not supported by clear, objective, quantified, science-based and verifiable commitments and targets given by the trader, including a detailed and realistic implementation plan to achieve this future environmental performance. That plan should include concrete targets consistent with achieving the trader's long-term commitment, underpinned by a sufficient budget and allocation of sufficient resources. Claims should also be supported by an independent monitoring system to monitor the progress of the implementation plan, the trader’s commitments and targets.

RemovedRecital 14 a (new): (14a) In order to improve consumer welfare, the amendments to Annex I to Directive 2005/29/EC should also address the way in which software updates are presented to consumers. The bundling of security updates with other types of updates, such as feature or functionality updates, should be prohibited in order to ensure that consumers are protected from unwanted content when making their purchasing decision. To further strengthen consumer information, consumers should in all cases be informed in a clear and understandable manner whether the update is necessary to keep the product in conformity.

AddedRecital 6: (6) Comparing products based on their environmental or social aspects, including through the use of sustainability information tools, is an increasingly common marketing technique that could be misleading to consumers, who are not always able to assess the reliability of that information. In order to ensure that such comparisons do not mislead consumers, Article 7 of Directive 2005/29/EC should be amended to require that the consumer is provided with information about the method of the comparison, the products which are the object of comparison and the suppliers of those products, and the measures to keep information up to date. This should ensure that consumers make better informed transactional decisions when using such services. The comparison should be objective by, in particular, comparing products which serve the same function, using a common method and common assumptions, and comparing material and verifiable features of the products being compared.

RemovedRecital 15: (15) It should be prohibited to supply a software update, including a security update, which will negatively impact the use of goods with digital elements or certain features of those goods, even if the update improves the functioning of other features.

AddedRecital 7: (7) The displaying of sustainability labels which are not based on a certification scheme or not established by public authorities should be prohibited by including such practices in the list in Annex I to Directive 2005/29/EC. The certification scheme should fulfil minimum transparency and credibility conditions. The monitoring of compliance of the certification scheme should be supported by methods that are proportionate and relevant to the nature of the products, processes and businesses that are subject to the scheme. It should be carried out by a third party whose competencies and independence, from both the scheme owner and the trader, have been verified by the Member States. Furthermore, certification schemes should include a complaints system that is available to consumers and other external stakeholders, focuses on non-compliance and ensures the withdrawal of the sustainability label in cases of non-compliance. The displaying of sustainability labels remains possible without a certification scheme where such labels are established by a public authority, or in case of additional forms of expression and presentation of food in accordance with Article 35 of Regulation (EU) No 1169/2011. This rule complements point 4 of Annex I to Directive 2005/29/EC which prohibits claiming that a trader, the commercial practices of a trader, or a product has been approved, endorsed or authorised by a public or private body when it has not, or making such a claim without complying with…

RemovedRecital 16: (16) It should also be prohibited to introduce a feature of the good that limits its durability. For example, such a feature could be software which stops or downgrades the functionality of the good after a particular period of time, or it could be a piece of hardware which is designed to fail after a particular period of time. The prohibition to introduce such features of the goods does not affect the remedies available to consumers when they constitute a lack of conformity under Directive (EU) 2019/771 of the European Parliament and of the Council26 . For such a commercial practice to be considered unfair, it should not be necessary to demonstrate that the purpose of the feature is to stimulate the replacement of the respective good. The use of features limiting the durability of the goods should be distinguished from manufacturing practices using materials or processes of general low quality resulting in limited durability of the goods. Lack of conformity of a good resulting from the use of low quality materials or processes should continue to be governed by the rules on the conformity of goods set out in Directive (EU) 2019/771.

AddedRecital 9: (9) Annex I to Directive 2005/29/EC should also be amended to prohibit making generic environmental claims without providing evidence of the excellent environmental performance which is relevant to the claim. Examples of such generic environmental claims are ‘environmentally friendly’, ‘eco-friendly’, ‘eco’, ‘green’, ‘nature’s friend’, ‘natural’, ‘animal-friendly’, ‘cruelty-free’, ‘sustainable’, ‘ecological’, ‘environmentally correct’, ‘climate friendly’, ‘gentle on the environment’, ‘deforestation-free’, ‘carbon friendly’, ‘climate neutral’, ‘energy efficient’, ‘biodegradable’, ‘plastic neutral’, ‘plastic-free’, ‘biobased’ or similar statements, as well as broader statements such as ‘conscious’ or ‘responsible’ that suggest or create the impression of excellent environmental performance. Such generic environmental claims should be prohibited whenever they are based on offsetting of environmental impacts, such as purchasing of carbon credits, or whenever there is no excellent environmental performance demonstrated or scientific evidence to it, or whenever the specification of the claim is not provided in clear and prominent terms on the same medium, such as the same advertising spot, product’s packaging or online selling interface. For example, the claim ‘biodegradable’, referring to a product, would be a generic claim, whilst claiming that ‘the packaging is biodegradable through home composting in one month’ would be a specific claim, which does not fall under this prohibiti…

RemovedRecital 18: (18) Similarly, Annex I to Directive 2005/29/EC should also be amended to prohibit marketing a good as reparable where it does not allow repair in accordance with legal requirements. In addition, Annex I to Directive 2005/29/EC should also be amended to ensure that the consumer is always informed of repair restrictions such as the unavailability of repair services, the unavailability of spare parts or the refusal to repair in the event that the product has been repaired by an individual other than an authorised or licensed repair professional within the distribution network.

AddedRecital 14: (14) In order to improve the welfare of consumers, the amendments to Annex I to Directive 2005/29/EC should also address several practices associated with early obsolescence, including planned obsolescence practices, understood as a commercial policy involving deliberately planning or designing a product with a limited useful life so that it prematurely becomes obsolete or non-functional after a certain period of time. Engaging in practices that lead to the shortening of a product’s lifespan or purchasing products that are expected to last longer than they actually do causes consumer detriment. Furthermore, early obsolescence practices have an overall negative impact on the environment in the form of increased material waste. Therefore, addressing those practices, are also likely to reduce the amount of waste, contributing to a more sustainable consumption.

RemovedRecital 20: (20) Another practice associated with early obsolescence which should be prohibited and added to the list in Annex I to Directive 2005/29/EC is marketing goods that require replacing the consumables earlier than would otherwise be necessary for technical reasons. Such practices mislead the consumer into believing that the goods will no longer function unless their consumables are replaced, thus leading them to purchase more consumables than necessary. For example, marketing a printer that requires consumers to replace the printer ink cartridges before they are actually empty in order to stimulate the purchase of additional ink cartridges would be prohibited.

AddedRecital 16: (16) It should also be prohibited to introduce a feature of the good that limits its durability. For example, such a feature could be software which stops or downgrades the functionality of the good after a particular period of time, or it could be a piece of hardware which is designed to fail after a particular period of time. The prohibition to introduce such features of the goods does not affect the remedies available to consumers when they constitute a lack of conformity under Directive (EU) 2019/771 of the European Parliament and of the Council 26 . For such a commercial practice to be considered unfair, it should not be necessary to demonstrate that the purpose of the feature is to stimulate the replacement of the respective good. The use of features limiting the durability of the goods should be distinguished from manufacturing practices using materials or processes of general low quality resulting in limited durability of the goods. Lack of conformity of a good resulting from the use of low quality materials or processes should continue to be governed by the rules on the conformity of goods set out in Directive (EU) 2019/771.

AddedRecital 17: (17) Another practice which should be prohibited under Annex I to Directive 2005/29/EC is the practice of claiming that a good has a certain durability when it does not. That would be the case, for instance, when a trader informs consumers that a washing machine is expected to last a certain number of washing cycles in accordance with normal expected use in accordance with the instructions while the actual use of washing machine shows this is not the case.

AddedRecital 18: (18) Similarly, Annex I to Directive 2005/29/EC should also be amended to prohibit marketing a good which does not allow repair in accordance with legal requirements or failing to inform the consumer that a good is unrepairable. In addition, Annex I to Directive 2005/29/EC should also be amended to ensure that the consumer is always informed of repair restrictions such as the unavailability of repair services, the unavailability of spare parts or the refusal to repair in the event that the product has been repaired by an independent professional, a non-professional or a user.

AddedRecital 20: (20) Another practice associated with early obsolescence which should be prohibited and added to the list in Annex I to Directive 2005/29/EC is marketing goods that require replacing the consumables earlier than would otherwise be necessary for technical reasons. Such practices mislead the consumer into believing that the goods will no longer function unless their consumables are replaced, thus leading consumers to purchase more consumables than necessary. For example, marketing a printer that requires consumers to replace the printer ink cartridges before they are actually empty in order to stimulate the purchase of additional ink cartridges would be prohibited.

Recital 21: (21) Annex I to Directive 2005/29/EC should also be amended to prohibit marketing goods that are designed in a way that limits their functionality when using consumables, spare parts or accessories that are not provided by the original producer. For example, the marketing of printers that are designed to limit their functionality when using ink cartridges not provided by the original producer of the printer would be prohibited. This practice could mislead consumers into purchasing an alternative ink cartridge which cannot be used for that printer, thus leading to unnecessary repair costs, waste streams or additional costs due to the obligation to use the original producer’s consumables which the consumer could not foresee at the time of purchase. Similarly, marketing smart devices designed to limit their functionality when using chargers or spare parts that are not provided by the original producer would be prohibited as well.

Change 2

RemovedRecital 23: (23) A good indicator of a good’s durability is the duration of the legal guarantee of conformity, including the voluntary extensions provided by the trader or the producer without additional cost to the consumer, as well as the producer’s commercial guarantee of durability within the meaning of Article 17 of Directive (EU) 2019/771 if provided without additional cost. Therefore, Directive 2011/83/EU should be amended to specifically require traders to provide, before the conclusion of the contract, a guaranteed lifespan label. Such a label should, as a minimum, display the length of the legal guarantee of conformity during which the remedies laid down in Article 13 of Directive (EU) 2019/771 will be available to the consumer, as well as any voluntary extension of the guarantee provided without additional cost.

AddedRecital 22: (22) In order for consumers to take better informed decisions and stimulate the demand for, and the supply of, more durable goods, specific information about a product’s durability and reparability should be provided for all types of goods before concluding the contract. Moreover, as regards goods with digital elements, digital content and digital services, consumers should be informed about the period of time during which free software updates are available in accordance with requirements under Union or national law, which covers as a minimum, the period as specified in Union law and its voluntary extension, where the producer makes such information available. Therefore, Directive 2011/83/EU of the European Parliament and of the Council 27 should be amended to provide consumers with pre-contractual information about durability, reparability and the availability of updates. Information should be provided to consumers, including in an official language or in official languages of the Member State where the good is offered, in a clear and comprehensible manner and in line with the accessibility requirements of Directive 2019/88228 . The obligation to provide this information to consumers complements and does not affect the rights of consumers provided in Directives (EU) 2019/77029, (EU) 2019/77130 and (EU) 2011/83 of the European Parliament and of the Council.

AddedRecital 23: (23) A good indicator of a good’s durability is the duration of the legal guarantee of conformity, as well as its voluntary extension in the form of the equivalent producer’s commercial guarantee of durability within the meaning of Article 17 of Directive (EU) 2019/771, covering the entire good and provided without an additional cost. Therefore, Directive 2011/83/EU should be amended to specifically require traders to provide, before the conclusion of the contract, a label indicating, as a minimum, a reminder of the legal guarantee of conformity, and if relevant, its voluntary extension in the form of a commercial guarantee of durability.

AddedRecital 23 a (new): (23a) When the goods are made available to consumers and other end-users, the label should be displayed prominently and in a clearly legible way.

Recital 24: deleted

Recital 25: deleted

Recital 26: deleted

Change 3

RemovedRecital 27: (27) In order to make it easier for consumers to take an informed transactional decision when comparing goods before concluding a contract, traders and producers should include, on the guaranteed lifespan label, information on the period of the voluntary extension to the legal guarantee , only where it applies for the entire good and not for specific components of the good.

AddedRecital 27: deleted

RemovedRecital 28: deleted

AddedRecital 28: (28) The producer and the seller should remain free to offer other types of commercial guarantees and after-sales services of any duration. However, the information provided to the consumer about such other commercial guarantees or services should not confuse the consumer.

Change 4

ChangedRecital 29: (29) To promote competition between producers as regards the durability of goods with digital elements the traders selling those goods should inform consumers about the minimum period of time during which the producer will provide software updates for such goods including, as a minimum, the mandatory period provided for whichin Union law and its voluntary extension where the updatesproducer makes such information available; information should only be provided inwhen accordancethis withperiod Unionis law.longer than the period of the producer’s commercial guarantee.

Change 5

ChangedRecital 30: (30) Likewise, traders offering digital content and digital services should also inform consumers about the minimum periodperiod, after the date of placement on the market, during which the provider of the digital content or digital service, where the provider is different from the trader, will provide software updates, including security updates, necessary to keep the digital content and digital services in conformity. This information shallshould include, as a minimum, the mandatory period for which the updates shouldhave to be provided in accordancefor within Union law. The provider will provide this information to the trader in all cases.

Change 6

ChangedRecital 31: (31) To allow consumers to make an informed transactional decision and choose goods that are easier to repair, traders should provide, before the conclusion of the contract, for all types of goods, where applicable, the reparability score of the good as provided by the producer in accordance with Union law. Until such a reparability score is established under Union law, national law providing for reparabilityor scoresnational applies.law.

Change 7

ChangedRecital 32: (32) Pursuant to Article 5(1), point (e), and Article 6(1),point6(1), point (m), of Directive 2011/83/EU traders are obliged to provide the consumer before the consumer is bound by the contract with information on the existence and the conditions of after-sales services, including repair services. In addition, in order to ensure that consumers are well informed about the reparability of the goods they purchase, where a reparability score is not established, traders should provide, for all types of goods, other relevant repair information, such as information about the availability and affordabilitymaximum price expected of the spare parts necessary to repair a good, including the lengthminimum period after the purchase of the periodgood during which spare parts and accessories are available, the procedure for ordering them, the availability of a user and repair manual as well as the availability of diagnosis and repair tools and services. This information should be provided to the respective traders by the producers of the goods.

Change 8

ChangedRecital 33: (33) Traders should provide consumers with information about the existence of the label, the minimum period for updates and the repair information other than the reparability score. In particular, as regards goods, the trader should convey to consumers thisthe information that the producer has provided to the trader or has otherwise intended to make readily available to the consumer before the conclusion of the contract, by indicating it on the product itself, its packaging or tags and labels that the consumer would normally consult before concluding the contract. The trader should not be required to actively search for commitmentssuch information from the producerproducer, for example, on the product-specific websites. Where traders are not producers of goods, their influence on the design of the products and their input regarding any information accompanying the products might be limited. In that gocase, beyondthe whatproducers isshould requiredprovide bythe Unionrelevant law,information to traders interacting with consumers. Furthermore, traders should be responsible for example,further passing on the product-specificinformation websites.to consumers.

Change 9

AddedRecital 36 a (new): (36a) The Commission should present easy-to-understand guidelines for businesses with the requirements of this Regulation. When developing such guidelines, the Commission should take into consideration the needs of SMEs in order to keep administrative and financial burdens to a minimum while facilitating their compliance with this Regulation. The Commission should consult relevant stakeholders, with expertise in the field of marketing.

AddedArticle 1 – paragraph 1 – point 1 – introductory part: (1) in Article 2, the following points (o) to (ya) are added:

Directive 2005/29/EC

Change 10

RemovedArticle 1 – paragraph 1 – point 1, Article 2 – paragraph 1 – point r a (new): (ra) ‘pre-approval of sustainability labels or sustainability information tools’ means an ex-ante conformity assessment to be performed by a competent national authority;

AddedArticle 1 – paragraph 1 – point 1, Article 2 – paragraph 1 – point o: (o) ‘environmental claim’ means any message or representation which is not mandatory under Union law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, in the context of a commercial communication, and which states or implies that a product, product category, brand or trader has a positive or no impact on the environment or is less damaging to the environment than other products, brands or traders, respectively, or has improved their impact over time;

Directive 2005/29/EC

Change 11

RemovedArticle 1 – paragraph 1 – point 1, Article 2 – paragraph 1 – point s: (s) ‘certification scheme’ means a third-party verification scheme that is open under transparent, fair and non-discriminatory terms to all traders willing and able to comply with the scheme’s requirements, which certifies that a product complies with certain publicly available and independently developed requirements reflecting a significant improvement on the otherwise applicable product law, and for which the monitoring of compliance is objective, based on international, Union or national standards and procedures and carried out by a party independent from both the scheme owner and the trader;

AddedArticle 1 – paragraph 1 – point 1, Article 2 – paragraph 1 – point p: deleted

Directive 2005/29/EC