policy-brief-e-commerce-trade-off
Dieses Dokument ist Teil der Anfrage „Gutachten des Sachverständigenrats für Verbraucherfragen“
24 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
stored, what means of transport will be used to get it used by the Court of Justice of the European Union in
to the end customer, how quickly it will be delivered or its interpretation of the relevant provisions; however,
whether the ordered items will be delivered in the same they cannot establish any separate obligations.
package or separately. Mail-order companies are also
not obliged to reveal average carbon emission figures The European Commission’s Ecodesign Working Plan
or similar resource consumption data. 2016–2019 specifies that requirements in terms of prod-
ucts’ durability, reparability und ease of reuse must be
Legal provisions covering product packaging for shipping taken into account when investigating possible Ecode-
purposes also exist. The German Packaging Act (Ver- sign implementing measures, as these product charac-
packungsgesetz, VerpackG), for example, states that the teristics depend in large part on the initial design of the
extent of the packaging must be kept to a minimum (Sec- product.106 In 2019, the first three Ecodesign implement-
tion 4 (1) of the Packaging Act), the materials used must ing measures were passed with provisions on the dura-
be reusable or recoverable (Section 4 (2) of the same Act), tion of the availability of and the delivery time for spare
and the packaging may be appropriately labelled in order parts as well as on the replaceability of spare parts
to enable the material used to be identified (Section 6 in with commonly available tools for the product groups
conjunction with Annex 5 of the same Act). of refrigerating appliances107, household washing ma-
chines and household washer-dryers108, and household
d) Post-contractual stage, in particular after-sales dishwashers109. The aforementioned provisions shall be
promotion and product usage valid as from March 2021. Factors such as a product’s
service life and the way in which it is used influence
The legislature is gradually taking more and more of an how sustainable it will actually be at the end of its life-
interest in consumers’ usage of products, as there is time. Companies can already have a positive influence
considerable potential here for influencing a product’s on their customers’ usage behaviour by providing them
overall sustainability credentials.103 Initial legal provi- with proper usage instructions, for example the wide-
sions regarding the usage stage are set out in the EU’s spread inclusion of washing and ironing instructions for
Digital Content Directive 104
and the EU’s Sale of Goods clothes. If consumers know how best to wash and iron
Directive105 from 2019, which must be transposed into an item of clothing, the product’s service life will be ex-
German law by 31 December 2021. Articles 7 (d) and tended, which will, in turn, have a positive impact on its
8 (2) of the Digital Content Directive and Article 7 (3) sustainability credentials. However, a very distinct set of
of the Sale of Goods Directive set out an update obli- problems are created if manufacturers recommend dry
gation for the product’s normal service life and/or for cleaning in order to avoid any potential liability if items
a period of time agreed under the contract. The aims are washed in a washing machine. Since it is clear that
set out in recital 32 of the Sale of Goods Directive for the average consumer has only limited knowledge of
achieving more sustainable consumption patterns and how to look after and maintain smartphones, washing
developing a circular economy are only of limited legal machines and dishwashers, there is significant potential
significance. Typically, the recitals are consulted and for increasing the durability of these products.110
103 Also, Schlacke, S., Tonner, K., Gawel, E., et al., Nachhaltiger Konsum bei der Produktnutzung als Herausforderung rechtlicher Steuerung [Sustainable
consumption in product usage as a challenge in terms of legal regulation], Zeitschrift für Umweltrecht (ZUR), 2016, p. 451.
104 Directive (EU) 2019/770.
105 Directive (EU) 2019/771.
106 European Commission, Ecodesign Working Plan 2016–2019, 2016, pp. 9 et seq.
107 Commission Regulation (EU) 2019/2024.
108 Commission Regulation (EU) 2019/2023.
109 Commission Regulation (EU) 2019/2022.
110 Jaeger-Erben, M., and Hipp, T., Letzter Schrei oder langer Atem? Erwartungen und Erfahrungen im Kontext von Langlebigkeit bei Elektronikgeräten
[The latest craze or products with staying power? Expectations and experiences with regard to the durability of electronic equipment], 2017; Bichler,
S., Gorny, S., and Stamminger, R., Are German consumers using their dishwashers in an energy efficient way? An online study of German house-
holds, EEDAL, 7th International Conference, 2013; Geppert, J., and Stamminger, R., Do consumers act in a sustainable way using their refrigerator?
The influence of consumer real life behaviour on the energy consumption of cooling appliances, in: International Journal of Consumer Studies, 34 (2)
2010, pp. 219-27; Gillingham, K., et al., The rebound effect is overplayed, Nature, Vol. 493, 2013, pp. 475–476.
III. E-commerce through the lens of legal regulations 25
Another usage aspect is of relevance in the case of ry, short product life cycles not only provide them with a
consumer electronics. If, over time, a product be- chance to differentiate themselves from the competition
comes damaged, the customer’s decision as to wheth- but also provide them with an opportunity to generate
er to continue or stop using the product will crucially higher sales figures with new purchases. Companies
depend on whether the product can, in principle, be which are quick to innovate not only have a stronger
repaired and, if so, whether the repair can actually be say in terms of pricing but can also potentially improve
carried out in the case in question (for example wheth- their cost position through economies of scale and ex-
er the necessary spare parts are still in stock) and how perience curve effects. Together, both lead to attractive
much it would cost. In response to a survey, 74 % of profits for innovative products. Consumers are ambiva-
consumers said that they decided not to get their elec- lent, and their position changes depending on the prod-
tronic equipment repaired due to the costs involved.111 uct. In the case of small items of electrical equipment,
Consumers feel that a repair is worth doing only if the which are the central focus of the study, consumers may
value of the product after the repair has been carried welcome and even demand technical innovation. Their
out is at least as high as the cost of the repair and/ actual purchasing habits correspond with their desire
or the repair will at least extend the product’s service for sustainable products, expressed in surveys, only to a
life. However, the manufacturer or trader would have limited degree.113 On the other hand, there are also con-
to and would have to be able to provide information sumers who leap frog, meaning that, when faced with
about the service life. As far as is known, there are ever-shorter innovation cycles, they simply skip one
no figures available regarding the minimum value of generation of the product in question.114
small appliances below which carrying out a repair is
deemed not to be cost-effective. At the same time, there are also indications that com-
panies purposefully limit the service life and useful life
Despite discussing the minimum durability of products of their products and therefore induce premature age-
as well as after-sales management and customer ser- ing or a loss of functionality in order to encourage sales
vices for decades, the Member States of the EU have of new products (known as planned obsolescence).115
failed to agree on a set of common rules, with the ex- However, planned obsolescence could prove to be a
ception of the limited provisions of the Digital Content clever and useful move if it prevents wear from occur-
Directive and the Sale of Goods Directive. The latter at ring which would make recycling a product, individual
least specify that the manufacturer must supply security components or materials difficult or even impossible.
updates for the duration of the contract or, in the case of This would need to be accounted for by manufactur-
a single act of supply, a period of time that the consum- ers, communicated and justified to consumers and
er may reasonably expect, given the type and purpose integrated as part of a corresponding fair usage-fo-
of the digital content or digital service and taking into cused product management and recycling programme.
account the circumstances and nature of the contract.112 Repairs can, of course, extend a product’s service life
It is usually not in companies’ interests for consumers and hence fundamentally improve its overall sustain-
to use products for as long as possible. On the contra- ability credentials, but they can also create conflicts
111 Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband, vzbv), press release from 6 June 2017, Elektroschrott ver
hindern – Reparaturen fördern [Preventing e-waste by encouraging repairs].
112 Article 8(2) of the Digital Content Directive.
113 Consumer surveys show that the vast majority of consumers want durable and long-lasting products: French Agency for Ecological Transition,
formerly the French Environment and Energy Management Agency (Agence de la Transition Écologique, formerly the Agence de l’Environnement et
de la Maîtrise de l’Energie, ADEME), Evaluation économique de l’allongement de la durée d’usage de produits de consommation et biens d’équipement
[Economic evaluation of extending the service life of consumer goods and items of equipment], 2020. How consumers actually behave is another
question altogether.
114 Backhaus, K. and Bonus, H., Die Beschleunigungsfalle oder der Triumph der Schildkröte [The pitfalls of moving too quickly and the tortoise’s
triumph], 1998.
115 Boos, A., Brönneke, T., and Wechsler, A., Konsum und nachhaltige Entwicklung: Verbraucherpolitik neu denken [Consumption and sustainable
development: Rethinking consumer policy], 2019; Brönneke, T., and Wechsler, A., Obsoleszenz interdisziplinär: Vorzeitiger Verschleiß aus Sicht von
Wissenschaft und Praxis [An interdisciplinary approach to obsolescence: Premature wear from a theoretical and practical point of view], 2015.
26 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
with aspects relating to sustainability and consumer waste avoidance, whereby, for example, the consumer
protection.116 Looking at the overall picture, exchang- resells the product as a used, second-hand good.121
ing a product for a newer, more innovative product can, If second-hand goods are sold by a trader, the trad-
in individual cases, actually be more sustainable than er benefits from less stringent legal provisions com-
repairing an old device. It is detrimental to consumers pared to the sale of new goods in that, in accordance
if repairs and a longer service life ultimately result in with Section 476 (2), second half-sentence, of the Civil
higher purchase prices and reduced fulfilment of con- Code, the warranty can be limited to one year (and not
sumers’ needs. However, the reverse is also true. The a minimum of two years as is the case with new goods).
ability to purchase products which have a short lifespan Waste avoidance is followed in the order of preference
at low prices is of little use to consumers. These con- by preparation for reuse, i. e. refurbishment, of the
ditions should be taken into account when a product is product so that it can once again serve its original
being created and designed. Requirements should, as purpose.122
stated in the Ecodesign Working Plan 2016–2019, gov-
ern market access in a legally binding way.117 Companies have recently emerged, in particular in the
area of electrical and electronic equipment, which pur-
Return fraud is a similarly problematic phenomenon. chase, check and, where applicable, repair used items
This term is based on the assumption that, when cer- of equipment and then sell them on as second-hand
tain returns are made, consumers are, in fact, abusing products. The less stringent legal provisions under
the opportunity afforded to them under Section 312g of Section 476 (2), second half-sentence, of the Civil
the Civil Code 118
and, for example, returning a wedding Code (shorter statute of limitations) also apply here. In
dress, an evening gown or a metal detector which was practice, lots of companies provide longer warranties
purchased in order to find a lost set of keys after a sin- covering their repair work in order to gain customers’
gle use and then requesting their money back from the trust. If a product cannot be refurbished or is not worth
seller. Studies show that consumers’ proclivity for this refurbishing, it can also be recycled. Recycling means
type of behaviour varies based on a number of different any process whereby waste is processed into prod-
factors such as gender, age and education. 119
ucts, materials or substances either for their original
or other purposes.123 Both textiles and electrical and
e) Cessation of use, in particular disposal and electronic equipment are being increasingly processed
reprocessing (refurbishment) at large-scale recycling plants in order to extract sec-
ondary raw materials from them. In 2019, 17.4 % of the
If a consumer decides to cease using a product, the word’s e-waste124 was recycled, whereas the fate of the
question arises as to what its future fate will be. An remaining 82.6 % remains unknown.125 At 42.5 %, Eu-
overview of the different options available can be rope boasts the highest recycling rate, whereas Africa
found in the waste hierarchy set out in Section 6 of the ranks in last place with a rate of 0.9 %.126 In 2018, with
German Circular Economy Act (Kreislaufwirtschafts- a collection rate of 43.1 %, Germany narrowly missed
gesetz, KrWG). 120
First in the order of preference is the EU’s collection target of 45 %. However, the recy-
116 Schlacke, S., et al., Nachhaltiger Konsum [Sustainable consumption], pp. 453 et seq.
117 Resources Commission at the German Environment Agency (Ressourcenkommission am Umweltbundesamt, KRU), Product Labelling Body for the
promotion of product resource efficiency and recyclability, 2017.
118 See Harris, L.C., Fraudulent Return Proclivity: An Empirical Analysis, Journal of Retailing 84, 2008, pp. 461–476.
119 Harris, L.C., Fraudulent Return Proclivity, p. 465.
120 National transposition of the European Union’s Waste Framework Directive, Directive 2008/98/EC. The German legislation is currently being
reworked; see ministerial draft bill of 5 August 2019: German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, ministerial
draft bill for legislation transposing the European Union’s Waste Framework Directive.
121 Section 3 (20) of the German Circular Economy Act (Kreislaufwirtschaftsgesetz, KrWG).
122 Section 3 (24) of the German Circular Economy Act.
123 Section 3 (25) of the German Circular Economy Act.
124 In 2019, 53.6 million tonnes of e-waste were produced worldwide; by 2019, the volume of global e waste rose by 21 % compared to 2014 (Forti, V.,
et al., The Global E-waste Monitor 2020, Quantities, flows and the circular economy potential, 2020).
125 Forti, V., et al., The Global E-waste Monitor 2020, 2020.
126 Forti, V., et al., The Global E-waste Monitor 2020, 2020.
III. E-commerce through the lens of legal regulations 27
cling rate indicates only what proportion is recovered, measures in response to this and removed its textile
not what proportion is used in new products or in what collection containers, as handing over any collected
capacity. A precise figure regarding this is not available textiles to textile recycling companies is proving less
for Germany. and less worthwhile.130 The Textile Recycling (Textilre-
cycling) trade association highlights the fact that the
The German Federal Environment Agency (Umweltbun- cost of incinerating non-recyclable textiles has sky-
desamt, UBA) believes that it is possible to increase rocketed in recent years.131 It is therefore calling for a
the collection rate by significantly simplifying the op- fee to be imposed within the fashion industry for each
tions available for consumers to hand used products individual item of clothing sold in order to contribute
back. 127
Increasing the number of drop-off points in towards the collection and recycling costs.132 Given that
the immediate vicinity of the final users of old items of electronics are now also being incorporated into cloth-
equipment could make returning them easier and more ing, this call will grow only louder as recycling process-
convenient and hence increase the collection rate. At es become more and more complicated and expensive.
the same time, the obligation set out in Section 18 (2) Recycling plants are subject to the same legal provi-
of the German Electrical and Electronic Equipment Act sions as the production plants which make the original
(Elektro- und Elektronikgerätegesetz, ElektroG) for man- products (Technical Instructions on Air Quality Control,
ufacturers to inform private households of the options Federal Ordinance on Immission Control, Waste Water
available for returning used items of equipment and for Ordinance and Regulation (EC) No 1907/2006). There
having them collected needs to be fleshed out in spe- are also opportunities for other types of recovery (in
cific terms so as to ensure that consumers are aware particular energy recovery and backfilling) as well as
of the options available to them. Another albeit more the disposal of waste, for example by transferring it to
complicated approach would be to introduce a depos- a permanent storage site.
it-refund system (cf. Section 25 (1) (2) of the Circular
Economy Act) for electrical equipment, similar to the Essentially, waste must be handed over to public dis-
one in place for beverage packaging, as recently pro- posal companies,133 i. e. bodies mandated to dispose of
posed by The Left Party parliamentary group in the waste, if the waste producer or owner cannot or does
Bundestag.128 However, there are subsequent follow-up not wish to use it (Sections 7 (2) and 17 (1) of the Cir-
questions which require more in-depth investigation.129 cular Economy Act). To ensure that waste can be hand-
ed over to the right disposal company, manufacturers
There is another issue which needs to be addressed re- are obliged, as part of their product stewardship com-
garding textile recycling. In view of the fact that new col- mitments in accordance with Section 23 (2) (3) of the
lections are launched more and more frequently these Circular Economy Act, to label products which contain
days, firstly, there are more and more items of clothing pollutants.
in circulation and, secondly, the quality of these items is
suffering as a result of increased production pressure. Special rules apply to waste electrical and electronic
However, quality has a major impact on recycling suc- equipment in this respect. Bodies mandated to dispose
cess rates. The city of Hamburg has taken appropriate of waste (district and city councils) can choose whether
127 German Federal Environment Agency (Umweltbundesamt, UBA), Elektroaltgeräte [Electrical and electronic waste], 2020.
128 Bundestag printed paper (BT-Drs.) 19/19642 from 28 May 2020.
129 For more in-depth information: Zeit Online, article from 5 January 2020, Grüne wollen Pfand auf Handys und Tablets einführen [The Greens want to
introduce a deposit-refund system for mobile phones and tablets].
130 Der Spiegel, Altkleidermarkt vor dem Kollaps (Video) [Second-hand clothing market on the brink of collapse (video)], 2020.
131 German Association for Secondary Raw Materials and Waste Disposal (Bundesverband Sekundärrohstoffe und Entsorgung, bvse), Textilstudie 2020:
Bedarf, Konsum und Wiederverwendung von Bekleidung und Textilien in Deutschland [Textiles study 2020: Demand, consumption and recycling of
clothing and textiles in Germany], 2020.
132 Der Spiegel, Altkleidermarkt vor dem Kollaps (Video) [Second-hand clothing market on the brink of collapse (video)], 2020.
133 In accordance with Section 69 of the German Circular Economy Act (Kreislaufwirtschaftsgesetz, KrWG), failing to separate or incorrectly separating
waste is illegal. Depositing waste which is toxic to the environment anywhere other than the allocated facilities is punishable in accordance with
Section 326 of the German Criminal Code (Strafgesetzbuch, StGB).
28 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
to introduce a send-in system or a pick-up system.134 ny. In fact, it is not just a register but an integral part
These bodies have made extensive use of the option of the overall waste management system. Manufac-
to delegate the task of receiving or collecting waste to turers and sellers are exempted from having to hand
public service companies. They can either award con- over waste to disposal companies if they wish to take
tracts in-house or by means of an invitation to tender. products back for themselves (Sections 17 (2) and 23
The e-waste which is subsequently collated can either (2) (5) of the Circular Economy Act in conjunction with
be shredded or dismantled. Unlike shredding, disman- Section 26 of the same Act). The party responsible for
tling allows the materials involved to be fully recycled. product stewardship (manufacturer or seller) must in-
For this to happen, the recycler needs to know which form the consumer of the option to hand the product
products and materials or mixtures of materials were back137 (Section 23 (2) (4) of the Circular Economy Act).
originally used. However, in the case of hybrid products, In practice, it is often impossible to identify who the
even having accurate information to hand regarding the manufacturer was because the label has faded over
composition of the materials is of no help. Materials time, thus making it impossible to hand the item back.
and components cannot be dismantled into unmixed As such, the resulting cost must be covered by the re-
waste with current separation processes. 135
The Elec- cycling companies which receive waste electrical and
trical and Electronic Equipment Act 2020 transposes electronic equipment for which the manufacturer can
the European Waste Electrical and Electronic Equip- no longer be identified.
ment Directive136 into German law. The Waste Electrical
and Electronic Equipment Directive had, for one thing, In accordance with Section 17 (1) of the Electrical and
introduced a new classification system. Equipment Electronic Equipment Act, sellers which have a shop
classification is the essential first step for any repro- floor space of 400 m² or more dedicated to electrical
cessing. However, one category in particular presents and electronic equipment are obliged to take back
the recycling industry with all sorts of problems. Small waste electrical and electronic equipment in exchange
items of IT and telecommunications equipment with for the consumer purchasing a similar new item of
an external dimension of a maximum of 50 cm are as- equipment. Consumers are also allowed to take back
signed to a single category without any further differ- to such sellers up to five old items of equipment which
entiation despite the fact that they are composed of an fall under the same category of equipment, provided
array of different materials and components. that none of the external dimensions exceed 25 cm.
Sellers are not obliged to accept items of equipment
In accordance with Section 5 of the Electrical and which are larger and fall under the Electrical and Elec-
Electronic Equipment Act, manufacturers must set up tronic Equipment Act (edge length 50 cm). Environ-
a joint body (clearing house) for waste electrical and mental Action Germany (Deutsche Umwelthilfe) has
electronic equipment. Germany’s Waste Electrical and initiated legal proceedings against two online traders
Electronic Equipment Register Foundation (Stiftung on the grounds of consumers’ having to travel unrea-
EAR) has taken over this role. It registers manufactur- sonable distances to hand back their used products.138
ers of electrical and electronic equipment and coor- Furthermore, e-waste and textile waste can be taken to
dinates the provision of collection containers and the designated collection points, so long as proper notifica-
collection of waste equipment with the public waste tion has been provided regarding the collection points
management authorities across the whole of Germa- (Section 17 (2) (3) and (4) of the Circular Economy Act in
134 Section 13 (1) and (3) of the German Electrical and Electronic Equipment Act.
135 Reuter, M.A., and Van Schaik, A., Recycling Indices Visualizing the Performance of the Circular Economy, World of Metallurgy – Erzmetall, 2016;
Reuter, M.A., Van Schaik, A., and Ballester, M., Limits of the Circular Economy: Fairphone Modular Design Pushing the Limits, World of M
etallurgy –
Erzmetall, 2018; Reuter, M., Hudson, C., Van Schaik, A., et al., United Nations Environment Programme (UNEP), Metal Recycling: Opportunities,
Limits, Infrastructure. A Report of the Working Group on the Global Metal Flows to the International Resource Panel, 2013.
136 Directive 2012/19/EU, amended by Directive (EU) 2018/849.
137 Product stewardship as such, which also includes the provision of information regarding options to take used products back, is an objective which is
taken into account as part of the interpretation and consideration of other legal provisions. (Beck Online Commentary on German Environmental Law
(Beck’scher Online-Kommentar zum Umweltrecht)/Konzak, 54th edition, April 2019, Section 23 of the German Circular Economy Act, margin no. 7).
138 Judgment of Dresden Regional Court of 5 December 2019 – file reference no. 44 HK O 147/18; Judgment of Ingolstadt Regional Court of 21 February
2020 – file reference no. 2 HK O 1582/18.
III. E-commerce through the lens of legal regulations 29
conjunction with Section 18 of the same Act).139 These The issue is that not only do entire fields of law exist in
collection points are either commercial or charitable in complete isolation from each other, such as consumer
nature (for example clothing containers of commercial law and waste legislation or consumer law and pro-
textile recyclers or charities). They are faced with all visions regarding production both in Germany and in
the usual problems that are caused on account of insuf- other countries within the EU, but also, and perhaps
ficient labelling of product materials (hybrid products) worse, when it comes to achieving the goal of sustaina-
and the existence of shortcomings in the classification ble consumption, provisions set out in public law, which
of textiles and electrical equipment. apply to society as a whole, and provisions set out in
private law, which apply to the parties to a contract,
f) Conclusion are not synchronised. Consumers have, to date, not
been sufficiently taken into account, in their capacity
The legal situation outside of contract law under the as the party potentially being addressed by the rules
Civil Code varies and is unclear for politicians, for or at least in their capacity as the beneficiaries of the
businesses and for consumers. This is not only the rules, when the rules have been drawn up. A poignant
case for vulnerable and trusting consumers, as even example is the lack of coordination between labelling
well-educated, interested, engaged and “empowered requirements under public law and obligations to pro-
consumers” need to do a lot of in-depth research vide information under private law.
which may not even lead to a successful outcome in
any case. Only in exceptional cases are companies The systematic interweaving of consumer law with
obliged to inform consumers about the sustainability fields of law which apply prior to and subsequent to
aspects of their products on their own initiative. Due to contract conclusion in order to achieve a circular econ-
the global nature of many supply chains and produc- omy is a Herculean task which, to date, no country an-
tion chains, the legal framework conditions are diffi- ywhere in the world has successfully managed to exe-
cult to pin down and understand, and verifying wheth- cute. In the previous legislative period, the European
er they have been complied with is almost impossible. Union dramatically improved consumer contract law.
The numerous voluntary commitments and alliances The EU’s primary objective was the full harmonisation
for voluntary monitoring of supply chains and pro- of consumer law and, in particular, of legislation gov-
duction chains as well as the voluntary provision of erning the sale of consumer goods as well as distance
information and usage instructions by the companies selling. Consumer law established under the Juncker
concerned, at least where the companies verifiably Commission addresses sustainability and the need for
disclose to the appropriate extent which measures sustainable consumption at best rhetorically. As such,
they used to monitor compliance with the relevant the new Commission is faced with the not-so-simple
standards, are essentially to be praised. Due to the task of rewriting the existing and adopted body of leg-
sheer number of different initiatives which have not islation, consisting of a range of different directives and
been synchronised or aligned, it is ultimately very regulations, in order to take account of sustainability
difficult and often impossible for consumers to make aspects. By agreeing to full harmonisation, the Member
sustainable purchasing decisions without undertak- States have delegated their regulatory powers within
ing extensive research of their own. this area to the EU and thus, for now, surrendered their
prerogative to act.
The really pressing issue, from a legal policy point of
view, is the disconnect between consumer contract Nevertheless, Germany is still at liberty to provide
law and the legal rules which apply to the stages pri- fresh impetus itself and play a leading role with-
or to and subsequent to contract conclusion, namely in the EU in developing sustainable consumer law.
the extraction of resources, manufacturing, transpor- The opportunity for Germany to proceed and make its
tation, after-sales service, reprocessing and disposal. own headway is, for example, set out in Article 114(5)
139 The competent authority must be notified of commercial and charitable collections at least three months prior to the collection being made (Section
18 (1) of the Circular Economy Act). The authority may make the collection subject to restrictions, make the collection subject to conditions or prohibit
the collection (Section 18 (5) of the Circular Economy Act).
30 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
of the Treaty on the Functioning of the European Un-
ion (TFEU), which allows Member States to introduce
national provisions based on new scientific evidence
relating to the protection of the environment or the
working environment on grounds of a problem specif-
ic to that Member State arising after the adoption of
the harmonisation measure. Such unilateral action can
also be undertaken in accordance with the EU’s eco-
nomic constitution. Sustainability is mentioned as an
objective, but the EU’s powers are actually limited with
regard to environmental law (Article 191 of the Treaty
on the Functioning of the European Union). This major
solution, i. e. the development of sustainable consum-
er law, will definitely require further detailed scientif-
ic, legal, conceptual and empirical input. The Advisory
Council for Consumer Affairs can and will initiate and
expedite this process.
The following proposals for reforming e-commerce are
therefore just a small piece in the broader sustainable
consumption puzzle. They are designed to make a swift
and short-term improvement to a specific problem by
reducing the number of returns in the interests of both
traders and consumers. Nevertheless, the regulation of
e-commerce exemplifies all the problems which truly
sustainable consumer law must seek to address.
IV. Solutions for the sustainable d evelopment of e-commerce 31
IV. Solutions for the sustainable
development of e-commerce
As already discussed, the analysis of the issue of sustain- Companies are constantly vying for business by not
ability with regard to e-commerce requires a holistic ap- charging consumers return shipping costs. Also, when
proach and must not be restricted to contract law alone, consumers return a product, both the purchase price
and, as such, the same applies to potential solutions. and the shipping costs must be refunded. As such, if
What is really needed is an interweaving of regulatory they are in two minds as to whether to return a prod-
and technological approaches as well as social change uct or keep it, there is no financial incentive for them to
whereby the mutual responsibilities of all the parties in- keep it – in fact, quite the opposite. However, whether not
volved are evenly rebalanced in order to provide a sustain- returning a product is really a more sustainable option
able future for e-commerce. Several potential approach- is also debatable, as the product may then just end up
es are presented below along with their advantages and lying around not being used or be immediately disposed
disadvantages in order to create a basis for discussion. of by the customer. Consumers therefore need to choose
the items that they order carefully so that there is ordi-
narily no need to even consider having to return a pur-
chase. Competition works in consumers’ favour, as legal
regulations almost encourage them to order a range of
1. Starting point products and then decide on which one is the best fit. In
theory, it is in traders’ best interests to try to provide as
a) Allocation of responsibilities extensive and accurate a description as possible of the
product in question in order to minimise returns. How-
In accordance with current contract law, consumers are ever, even when some companies pursue this approach,
free to decide whether to return goods to traders or not, they find that their efforts ultimately conflict with the
as they do not need to state their reason(s) for withdraw- overall shopping experience where customers can inten-
ing from the contract. Traders can simply try to eliminate tionally order too much without having to worry about
or at least minimise the causes of returns, such as con- the consequences. In any case, it is clear that the way in
sumers having false expectations of or the wrong idea which shipping costs are applied is focused solely on the
about a product, from the outset.140 Conversely, custom- different interests of companies as sellers and consum-
ers are able to factor in the option to return items when ers as customers and that neither sustainability nor the
they order them, in that they can order the same product ideal of sustainable consumption have been taken into
in several colours and sizes to start with so that they can consideration in drawing up regulatory provisions.
view them properly and then decide on the best option.
Customers only ever have to cover the return shipping With regard to further legal bases, the various responsi-
costs if they were informed in advance by the trader, and, bilities require a more nuanced assessment. Companies
in reality, this is very rarely enforced. In response to the are (as things currently stand) not obliged to monitor
aforementioned survey carried out in 2019, only 15 % of their suppliers’ compliance with environmental and so-
traders said that they exercise the option to pass on the cial sustainability standards throughout the production
return shipping costs to customers.141 chain. As such, consumers have to rely on companies’
140 See Lemm, J., Der Versandhausberater no. 22/2020, pp. 4 et seq.
141 Returns Management Research Group, 2019a.
32 E-COMMERCE AND THE TRADE-OFF BETWEEN CONSUMER PROTECTION AND SUSTAINABILITY
voluntary commitments and must themselves check to rest is unaccounted for and was presumably shipped in
see whether a company has imposed its own voluntary the form of second-hand goods to lower-income coun-
commitments or is affiliated with an initiative or whether tries, exported illegally and disposed of or mixed in with
the product in question boasts a sustainability label. Yet, other waste streams, making recycling difficult.143 The
even if consumers were to obtain the relevant product issues faced in conventional recycling demonstrate how
information, the question would remain as to whether important it is for companies to bear what will happen
they would actually take proper note of it and base their at the end of a product’s useful life in mind as early on
decisions on it. The situation is different at the pre-con- as the product design stage. The processed materials
tractual stage, whereby traders are not permitted to involved and the product’s design have a major impact
present any misleading environmental information in on whether the product can be successfully recycled or
their advertising and are at least obliged to mention cer- what alternative options could be available at the end of
tain product characteristics. In that respect, consum- a product’s useful life. A clear concept and clear spec-
ers have the necessary information at their fingertips ifications for using (a mixture of) materials and ensur-
without having to go to any great lengths themselves. ing the proper relevant logistics throughout the entire
Consumers also have the option to find out if companies product life cycle will be necessary in order to be able to
are members of any initiatives, have imposed voluntary pursue, let alone achieve, a circular economy.144
commitments on themselves or have qualified to use any
labels on their products and what those labels mean. b) Levels of regulation
With regard to the transportation of their products, The provisions under contract law which are of rele-
companies are only expected to follow guidelines and vance here are national regulations determined on the
voluntarily provide consumers with the relevant infor- basis of EU law – this applies both in terms of distance
mation that they need to make an informed decision. selling and the sale of consumer goods. Both fields
At the post-contractual stage, both companies and con- of law are fully harmonised. Accordingly, purchasers,
sumers are responsible for ensuring that products are i. e. consumers, cover the costs of return shipments if
used sustainably. For example, when designing their they withdraw from their contract. However, the ob-
products and providing an after-sales service, compa- ligation to pay those costs is subject to consumers’
nies are required to ensure that consumers are able to having been provided with the relevant information
use their products sustainably. Consumers also have a beforehand.
hand in a product’s overall sustainability credentials on
the basis of their usage habits and their decision wheth- Germany does not operate in a legal vacuum even at the
er to potentially return the product and withdraw from pre-contractual and post-contractual stages of produc-
the contract as well as their decision as to whether to tion and distribution. In addition to ever-present EU law,
have the product repaired or replace it with a new pur- there are also the provisions of the GATT and the WTO
chase. Once consumers have finished with a product, to consider, which do not contain any explicit specifica-
companies need to meet their product stewardship ob- tions with regard to a sustainable economy or sustain-
ligations. However, ultimately, it is down to consumers able consumption. It could even be said that, as things
to decide which disposal route to choose. As such, it is currently stand, sustainability does not feature as a
not easy to find out what exactly happens to waste elec- relevant category in respective international provisions,
trical and electronic equipment or textiles, i. e. whether meaning that more sustainable products must not be
they are reprocessed for reuse or shredded. According given preferential treatment. Any national regulation,
to a study, in 2019 over 80 % of global e-waste was not whether it sets out a potential obligation to indicate a
collected via the official route.142 A tiny proportion (less product’s geographical provenance or constitutes sup-
than 10 %) of small items of equipment in particular was ply chain legislation, must be examined to ensure that it
apparently disposed of with normal domestic waste, the is compatible with EU law and world trade law.
142 Forti, V., et al., The Global E-waste Monitor 2020, 2020, p. 14.
143 Forti, V., et al., The Global E-waste Monitor 2020, 2020, p. 14.
144 Stahel, W.R., The Circular Economy: A User’s Guide, 2019.
IV. Solutions for the sustainable d evelopment of e-commerce 33
consumer associations in Germany and Europe. When
2. Approaches for the working on the Distance Selling Directive,148 consumer
sustainable development of associations argued strongly in favour of ensuring that
consumers were not charged return shipping fees if
e-commerce they decided to withdraw from the contract. A political
compromise was reached which involved the introduc-
a) Pros and cons of introducing an obligation tion of an obligation for traders to inform consumers in
to bear costs advance if they intend to pass return-related costs on to
them. When working on the “Modernisation Directive”,
In 2019, the Returns Management Research Group at the European Commission proposed adding a sub-point
the University of Bamberg conducted a study into pre- in the form of letter (n) to Article 16 of the Consumer
ventive returns management and, in particular, the idea Rights Directive149 which would set out an exception
of introducing return shipping fees.145 The authors of from the right of withdrawal if the consumer had used
the study concluded that even a minimal fee of, for ex- the goods in question during the withdrawal period to an
ample, EUR 3 146
would reduce the number of returns extent which was not necessary in order to establish the
by 16 %. Given that return-related costs have, to date, nature, characteristics and functioning of the goods.150
always been factored into companies’ pricing, purchase However, this proposal was unanimously rejected by the
prices would be lower for customers, and only custom- European Council and the European Parliament.
ers who send a lot of items back would lose out. Trad-
ers can actually already force their customers to pay The policy continues to concentrate on developing and
the return shipping costs provided that they make them expanding consumer rights to ensure unencumbered
aware of this prior to concluding the contract. Almost consumption. Sustainability aspects still do not seem
60 % of companies said in the survey that they would to come into play, and, instead, the interests at stake in
be happy to charge return shipping costs but cannot the two-sided relationship continue to be the main fo-
do so on account of the fact that they need to be com- cus. Any deviation from this position would more or less
petitive. 147
This problem would be solved if customers equate to a tectonic paradigm shift in consumer-relat-
were obliged to pay the return shipping costs by law. ed matters, as it would involve consumer associations’
Optional cost-related provisions do not have a negative actively addressing the issue and considering whether
impact on competition from the perspective of consum- and to what extent consumers should and must take re-
ers but do have a negative impact in terms of sustain- sponsibility themselves. One option could be to increase
ability. External costs (for example on account of any consumers’ awareness of the consequences of their ac-
environmental damage caused) would be internalised tions, i. e. of withdrawing from a contract, on the envi-
and made visible and not passed on to all consumers ronment or to encourage them to try to move away from
by means of the purchase price. Mandatory provisions ordering single items and instead group several items
are required, although they would also raise their own into one order which would also be more cost-effective
legal issues. Such regulations are essentially alien to a for them (known as nudging/boosting). As a result, con-
market economy. The situation is usually the reverse: sumers would be encouraged, rather than forced, to act
companies try to charge customers costs which the lat- responsibly. Cost-related provisions to the detriment
ter try to avoid. of consumers have another downside, as they typically
affect vulnerable consumers. In any case, it would be a
Such a reallocation of costs would also fly in the face good idea to ask consumers themselves whether and
of what has, to date, been the dominant position of to what extent they would be prepared to actively as-
145 Returns Management Research Group, 2019a.
146 According to the authors of the study, a minimal fee should be comparatively low, i. e. between EUR 2 and EUR 3, in order to ensure that neither
consumers nor e-commerce as a sales channel are put at an unreasonable disadvantage.
147 Returns Management Research Group, 2019a.
148 Directive 97/7/EC.
149 Directive 2011/83/EU.
150 European Commission, Proposal for a Directive of the European Parliament and of the Council, 2018.
