In March 2022, the European Commission proposed a Directive to provide better information on the durability and repairability of certain products to consumers before purchase and to improve the protection of consumers against unfair commercial practices relating to misleading environmental claims (“greenwashing”) and early product obsolescence.

The draft Directive proposes several changes to existing EU consumer law which do not solely apply to physical goods. For example, proposed amendments to the Consumer Rights Directive (2011/83/EU) relating to the requirement on traders to provide pre-contractual information, include an obligation, for goods with digital elements (e.g. a smart watch), to provide information on the existence and length of period during which the producer will provide software updates (where the producer makes such information available). For digital content and services, where the provider is different to the trader and makes such information available, the obligation is to provide information as to the existence and length of period during the provider commits to providing software updates (unless the contract provides for a continuous supply of digital content or services over a period of time).

Proposed amendments to the Unfair Commercial Practices Directive (2005/29/EC) address programmed obsolescence and include, as practices which are in all circumstances considered unfair, omitting to inform consumers that a software update will negatively impact the use or certain features of goods with digital elements even if the update improves the functioning of other features.

Following discussions, the EU Parliament and Council have reached provisional agreement on the terms of the Directive introducing some changes to the original proposal. Reports indicate that their agreement introduces, amongst other things, clarity on the trader’s liability with respect to information (or lack of information) on early obsolescence, and introduces a ban on presenting software updates as necessary where they only enhance functionality.

The agreement now needs to be endorsed and formally adopted by both institutions, likely to take place within the next few months. Once it comes into force, EU Member States will have two years to implement the new Directive.

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