policy-brief-right-to-repair
Dieses Dokument ist Teil der Anfrage „Gutachten des Sachverständigenrats für Verbraucherfragen“
42 RIGHT TO REPAIR
4.1.2 Enforcement level: Market surveillance blocked. It is true that public enforcement can offer
some advantages over private enforcement, especially
Ecodesign rules can only have a (sustainable) effect if with regard to the infrastructural prerequisites and
they are followed and, if necessary, enforced. This is investigation possibilities and the associated balancing
the responsibility of the market surveillance authorities of information asymmetries.47 However, it cannot be
of the Member States, whose tasks and powers are in taken for granted that an authority will actually use the
Germany determined by the Energy-related Products possibilities and powers (theoretically) available to it.
Act (Energieverbrauchsrelevante-Produkte-Gesetz, EVPG), The personnel possibilities and financial means as well
which was enacted in implementation of the Ecodesign as the possibly necessary expertise must be available.
Directive. For example, in the event of non-compliance Finally, intra-authority decision-making processes can
with the ecodesign requirements, the competent also affect effective enforcement. Authorities do not
authority may temporarily prohibit the placing on the always choose the path of optimal law enforcement, at
market, putting into service or making available of the times choosing to act in self-interest instead (“capture
product pursuant to Section 7 (3) No. 5 EVPG. The laws effect”).48 According to estimates made by the European
are implemented by the federal states as a matter of Commission in 2019, 10-25% of products sold on the
their own (Art. 83 GG), so that market surveillance is market will not comply with ecodesign and energy
the responsibility of the state authorities. The Laender labelling requirements and more should be done to
appoint the market surveillance authorities and provide monitor the market.49 With the planned extension of
them with the necessary resources (in particular the Ecodesign Directive, the number of implementing
qualified personnel and material resources). The fact regulations is expected to grow considerably. Whether
that the assignment of responsibility for enforcement is a higher level of consumer protection will be achieved
left to the respective federal states results in an uneven with an increasing number of product groups to be
picture: In some cases the task of market surveillance monitored by market surveillance remains to be seen,
is assigned to the trade supervisory authority (Bavaria, but may not taken for granted against the background
Bremen and Lower Saxony), to the state offices of the already patchy market surveillance.
for labour, consumer or environmental protection
(Berlin, Brandenburg, North Rhine-Westphalia or The need for increased market surveillance and stricter
the occupational health and safety department in the enforcement measures is also recognised by the
Saxony state directorate) or, as in Saxony-Anhalt, to the European Commission. Effective enforcement of the
state calibration office. The resources made available ecodesign requirements is crucial to ensure that the
also differ considerably. expected benefits of the Ecodesign Regulation and its
expected contribution to achieving the Union's climate,
It is worth investigating how state authorities are energy and circular economy goals are achieved.
equipped, what their workload is and what they (could) A comprehensive control, however, is apparently
actually do to monitor the provisions of the Ecodesign not considered realistic, since it is only a matter of
Directive. preventing “problematic levels” of non-compliance
of products with the ecodesign requirements. The
Ecodesign regulations do not give end users a direct European Commission seems to see its function to a
claim against manufacturers and importers for large extent as a supervisory body. It is true that specific
compliance with the ecodesign requirements, rendering regulations are to supplement the provisions of the
them dependent on the authorities to enforce the Market Surveillance Regulation (EU) 2019/2020 in order
regulations. The path of private legal action thus remains to further strengthen the planning, coordination and
47 Weber/Faure 2015, p. 533; Purnhagen 2021, pp. 155, 159.
48 Weber/Faure 2015, p. 540 f.
49 European Commission, The new energy efficiency labels, Factsheet v. 11.3.2019, available at: https://ec.europa.eu/commission/pres-scorner/detail/
en/MEMO_19_1596; Ecodesign Work Programme 2016-2019, COM(2016) 773 final, p. 11. Cf. in addition the Report of the European Parliament
on the implementation of the Ecodesign Directive v. 7.5.2018, available at: https://www.europarl.europa.eu/doceo/document/A-8-2018-0165_
EN.html?redirect and the Special Report No. 01/2020 of the European Court of Auditors, available at: https://www.eca.europa.eu/Lists/
ECADocuments/SR20_01/SR_Ecodesign_and_energy_labels_EN.pdf.
4. Legal approaches to repairability 43
support of the efforts of the Member States. However,
the European Commission is to be given “additional 4.2 Individual enforcement
instruments” to ensure that the market surveillance
authorities take sufficient measures. In particular, it is to
(civil law)
be empowered to set a minimum number of inspections.
Using civil law tools for the achievement of
The responsibility for successful market surveillance sustainability goals is discussed again and again.
lies with the Member States. In the European Although environmental law is classically a matter of
Commission's view, they should draw up a specific public law, civil law can in principle also have a decisive
action plan identifying the products or requirements steering effect. This also applies to the implementation
considered to be of particular importance and the of the right to repair. However, it cannot be denied that
activities planned. However, support for Member States the lack of consideration of sustainability aspects in
is also envisaged, namely through the organisation both the Consumer Sales Directive and the Sale of
and, where appropriate, financing of joint market Goods Directive has led to a situation where the interest
surveillance and testing projects, joint investment in in sustainable product use is hardly reflected in the
market surveillance capacities and joint training for the legal rules. Taking previous research into account, it
staff of market surveillance authorities. will be demonstrated that the law on the sale of goods
nevertheless offers fertile ground for the promotion
In order to ensure effective enforcement of ecodesign of sustainable habits of use and, in particular, for the
requirements throughout the Union, the European right to repair. As will be shown, it does not require
Commission should focus more on the implementation a complete overturn to make the law on the sale of
of support measures in light of the problems outlined consumer goods “fit” for the right to repair. What is
above. An extension of the powers of intervention and needed, however, is a (re)alignment of a few screws and
action plans have only limited effect if the power and the interlocking of civil law regulations with the eco-
ability to implement them are lacking. In the widely design product standards.
respected Janecek judgement, 50
the ECJ de facto
obliged the city of Munich, following a complaint by a Civil law is directed towards reconciliation of interests.
resident, to draw up an action plan to reduce emissions By means of asserting claims, individual interests
from road traffic to the limit set by the EU. This case can be pursued and satisfied under certain (factual)
law could possibly be used to force market surveillance conditions. According to Section 194 (1) of the German
authorities to implement a generally accepted action Civil Code (Bürgerliches Gesetzbuch, BGB), a claim is
plan for making ecodesign a reality. the “right” to demand that another person does or
refrains from doing something. When talking about a
To ensure that the enforcement of ecodesign require- right to repair, it must be taken into account that the
ments is not limited to product groups prioritised by the interest of the consumer is not limited to the repair
authorities, but can be carried out as comprehensively process as such, but can also include, for example, pre-
as possible, it must be supplemented and flanked by contractual information about product characteristics,
private legal enforcement. This makes it all the more especially about the availability of spare parts and the
important to link the Ecodesign Directive and the Sale repairability of the product. However, if a “right” to
of Goods Directive. The European Commission proposal repair (in the narrower sense) is involved, the question
to amend the Ecodesign Directive does not contain any arises as to who can be required to carry out a repair
indications in this regard. In any case, a corresponding and under what conditions. In EN 45554:2020, the term
link should be explicitly established (retrospectively) in repair is defined as follows: “3.1.4 Repair: Process in
the planned revision of the Sale of Goods Directive. which by which a defective product is restored to a
condition in which it can fulfil its intended use”. A claim
to the performance of a repair can arise in various
50 ECJ, Judgment of 25. 7. 2008 - C-237/07.
44 RIGHT TO REPAIR
situations: for example, on the basis of a contract for aa Objective concept of defect
work and services (Section 631 BGB), in which the The door to a repair obligation under the purchase
repair is performed as an owed result in return for contract is the disappointed expectation of the buyer
payment, or in the context of a rental agreement, in of the seller's performance: Against payment of the
which the landlord owes the repair of the rental object purchase price, the buyer may expect to receive an
[Section 535 (1) sentence 2 BGB]. By far the most item which, with regard to its quality and possible
common form of consumption, however, is purchase. use, corresponds both to what the parties have agreed
The study therefore examines the extent to which the (subjective requirements) and to what can usually be
rules of consumer sales law offer starting points for the expected (objective requirements). Furthermore, the
promotion of sustainable product use. item must meet the assembly requirements, Section
434 (1) BGB. The decisive parameters for freedom from
4.2.1 Warranty for defects under the defects are the possibility of use and the quality. The
law of sale buyer's expectation is above all to receive “good goods
for good money” and thus in particular a functional item.
A claim for repair does not initially arise from the However, if the parties explicitly agree, for example, that
sales contract itself, because this initially aims at a smartphone should be repairable, this becomes part
the exchange of a purchased item free of material of the agreed quality, Section 434 (2) BGB, and thus of
and legal defects against payment of the purchase freedom from material defects. Active agreements on
price, Section 433 BGB. In the event of a defect in compliance with sustainability standards are therefore
the object of sale, Section 437 BGB stipulates certain rare. In order for the transformation of consumer
rights of the buyer: He may demand a supplementary law in the direction of sustainability to succeed, the
performance, withdraw from the contract or reduce consideration of environmental standards in the civil
the purchase price and demand compensation for law balance of interests must become a matter of
damages or expenses. The primary remedy is the course. The most important gateway for the inclusion
supplementary performance regulated in Section of sustainability standards in consumer sales law are
439 BGB, in the context of which the buyer can demand objective requirements of conformity. This does not
either the delivery of an item free of defects or the refer to any agreement between the parties, but to
rectification of the defective item itself (in particular what is customary and can therefore legitimately be
by its repair). In the following, the law on warranty for expected.
defects is examined for starting points that enable
a steering effect towards a sustainable law on the However, the question arises as to what extent standards
sale of consumer goods. In particular, it is to be that the parties have not explicitly agreed to comply
worked out to what extent the variant of subsequent with, in the context of the sales contract, can influence
fulfilment inherent in supplementary performance can the legitimate expectations and thus the freedom from
be effectively used to achieve sustainability goals. To defects of the purchased item – or more precisely,
this end, it will first be explained that sustainability whether the buyer can expect that the purchased item
standards are part of the legitimate expectations of complies with public or private standards that apply
the buyer and that their non-compliance constitutes to it. The legal situation is relatively clear if a product
a material defect. Subsequently, it will be discussed does not meet public-law requirements that are a
which options exist on the legal consequences side prerequisite for its use. If, for example, a sold motor
to promote repair. In this context, the problem of vehicle does not meet public law requirements without
limitation periods is also addressed and possible which it is not allowed to be put into operation, the
solutions discussed. Finally, the new software update vehicle is not suitable for normal use for participation
obligations introduced into the German Civil Code in road traffic. The situation is different, however, if
on 1 January 2022, which have particular potential products are manufactured according to standardised
from a sustainability point of view, deserve separate but not legally binding regulations.
consideration.
4. Legal approaches to repairability 45
Paradigmatic for the importance of sector-specific Example 2
law in determining legitimate expectations are the Aesthetic and functional aspects play a primary
provisions of the German Product Safety Act (Produkt role in the purchase decision; the interchangeability
sicherheitsgesetz, ProdSG), which are the benchmark for of individual parts is not discussed. The battery of
the safety that can be legitimately expected. Recital 32 the smartphone is installed in such a way that it
of the Sale of Goods Directive refers to product-specific cannot be replaced. However, there is an Ecodesign
legal provisions for the determination of product Implementing Regulation that stipulates that the
requirements and thus – even if not explicitly – to the battery of all smartphones must be replaceable.
Ecodesign Directive. The intention of the European Can the buyer expect that the smartphone he buys
legislator is therefore to be interpreted to the effect complies with these requirements?
that ecodesign standards are in principle decisive for
the justified expectation in the context of the purchase However, there is no presumption that non-compliance
contract. indicates a defect. A parallel compilation of rulings
by Member State courts in the context of EU law does
The Vienna Sales Convention, or CISG for short, seems not yet exist. It is not the task of the contract of sale to
to play a pioneering role. Art. 8 (3) CISG makes it enforce such standards against the will of the parties.52
clear that all relevant circumstances are to be taken However, standards can influence the legitimate expec-
into account in the interpretation of the contract. An tations and the suitability for normal use.
international working group has compiled information
from rulings of various courts with the aim of explaining This is all the more true in a consumer society where
the significance of voluntary technical standards in the products are created in standardised production pro-
assessment of the defectiveness of products.51 Here cesses. When buying a mobile phone or a tablet, the
it is consistently shown that the existence of such brand may play a role. Once this decision has been
standards is taken into account in the assessment of made, it is only a matter of choosing the desired, again
defectiveness. standardised model. Individual negotiations between
the parties about the characteristics of the product do
Example 1 not take place.
The buyer is looking for a smartphone with
replaceable parts and at least five years of update In the Sale of Goods Directive, the EU legislator has
support. The seller recommends the “FairPhone” taken this tendency towards objectivity into account for
to the buyer, which meets these requirements, the first time. Article 7 of the Sale of Goods Directive
and the purchase contract is concluded. Here, the Objective requirements for conformity states: (1) In
buyer can expect, due to the explicit agreement, addition to complying with the subjective requirements for
that individual parts can be exchanged and that the conformity, the goods or digital content or digital services
device will receive five years of updates. must 1 a) be fit for the purposes for which digital content
or digital services of the same kind are normally used,
taking into account, where applicable, applicable Union
and national law, technical standards or, in the absence
of such technical standards, applicable sectoral codes of
conduct. In German law, he decisive passage on technical
standards was not included in the text of the law, but
moved to the explanatory memorandum.53 Under EU law,
this is unlikely to be compatible with the requirements
for proper implementation. Precedents are well known.
In the authors' view, Article 7 of the revised Sale of Goods
51 CISG-AC Opinion No. 19, p. 4.
52 CISG-AC Opinion No. 19, p. 4.
53 BT-Drs. 19/27424, p. 24.
46 RIGHT TO REPAIR
Directive paves the way for making the standards to be the wording of the law. However, it has already been
determined according to the Ecodesign Directive usable shown in the literature that the durability requirement
for determining freedom from defects. has more of a symbolic character56 than that it would
result in a change to the previous legal situation57: The
Whether public or private standards are included in a term “durability” only refers to the ability of the goods
specific case depends on a number of factors and the at the time of the transfer of risk, i.e. at the time of the
context of the contract.54 For example, a standard can handover of the purchased item, to retain their required
become a component of freedom from defects if the functions and performance under normal use. It is
seller has explicitly pointed out this standard to the still not necessary that it actually does so.58 Moreover,
buyer beforehand or has publicly stated that he wants there is no independent criterion of “repairability”.
to comply with the standard. If, for example, the seller However, the repairability of the object of sale can still
has pointed out the ecodesign requirements in advance be assigned to the quality of the object of sale. What
or has declared their intention to comply with them, this exactly the term “quality” means has still not been
is one of the requirements for freedom from defects. conclusively clarified. Federal Court of Justice (BGH)
adopted a very broad definition in 2016:
Example 3
A manufacturer publicly advertises that its “The quality of an object within the meaning of Section
smartphones meet ecodesign standards. 434 (1) BGB (are) to be regarded as all factors inherent
in the object itself as well as all relations of the object
If there is no explicit commitment to compliance, the to the environment which, according to the perception
decisive factor is, among other things, the level of of the market, have an influence on the value of the
awareness of the standard and its discoverability. If it object”.59 This also includes the repairability of the
is a prominent standard whose requirements can be object of sale in two senses: Repairability by design and
easily found and viewed, this may indicate that it must availability of spare parts.60 The ability to be repaired is a
be complied with.55 factor inherent in the thing itself. The lack of availability
of spare parts in turn results in non-repairability.
At the same time, the eco-design rules cannot serve With regard to the provision of spare parts, however,
as a simple "blueprint" for the seller's programme of disillusionment arises in several respects: even if the
obligations. A link between the Ecodesign Directive availability of spare parts is regarded as a criterion
and the Sale of Goods Directive to promote repairs for freedom from defects, this would only have to be
cannot be made in such a way that the sustainability given at the time of the transfer of risk and not over a
goals of ecodesign are simply imposed on the purchase longer period of time, as provided for by the Ecodesign
contract. Rather, it is important to use sustainable Directive. Theoretically, it would be sufficient if the
product standards in a system-compatible way to fulfil availability of spare parts was only ensured at the time
justified expectations. Here, above all, the expectation of the transfer of risk and not a second later. In addition,
of the usual “quality” comes into focus, Section 434 (3) a corresponding claim for subsequent performance
BGB. The usual condition includes the quantity, quality might not be enforceable, as it is directed against
and other characteristics of the item, including its the seller, who, however, usually has no influence on
durability, functionality, compatibility and safety. At the availability of spare parts on the market. If the
first glance, the criterion of “durability” [Section 434 (3) manufacturer refuses to provide spare parts, the seller
BGB] seems to be an approach to promote more is liable for subjective impossibility according to the law.
sustainable consumer habits explicitly included in The consumer would then be advised that there is an
54 CISG-AC Opinion No. 19, p. 9.
55 CISG-AC Opinion No. 19, p. 15 f.
56 Croon-Gestefeld 2022, pp. 497, 499.
57 Bach/Wöbbeking 2020, pp. 2672, 2674.
58 Bach/Wöbbeking 2020, pp. 2672, 2674.
59 BGH NJW 2016, P. 2874.
60 Croon-Gestefeld 2022, p. 497, 501.
4. Legal approaches to repairability 47
eco-design ordinance for the respective product group Section 439 (1) BGB. In terms of sustainability, repair
which provides for a replacement parts obligation on is generally preferable to replacement and recycling
the part of the manufacturer. Ultimately, the consumer (for the special aspect of refurbishment see (3)). In
would then be dependent on the fact that there is an the recycling process, the goods go through a second
eco-design ordinance for the respective product group production phase in which energy and resources are
that provides for a replacement parts obligation on consumed in order to return the product to a usable
the part of the manufacturer, and that this is then also state. The current law does not offer the consumer
officially enforced. any incentives to decide against a subsequent delivery
and in favour of a repair. A repair usually takes much
According to Section 434 (3) no. 4 BGB, the objective longer than the shipment of a new product. From the
requirements include that the item is handed over with consumer's economic perspective, this is already an
the accessories including the packaging, the assembly inherent disadvantage.64 Even if the buyer chooses
or installation instructions as well as other instructions the repair option within the scope of his freedom of
which the buyer can expect to receive. Here, too, the choice, the seller always has the option of rejecting it
reference to the ecodesign rules is suitable for filling with reference to the (relatively) disproportionate costs
out the objective requirements. If these provide for the compared to the subsequent delivery, section 439 (4)
provision of repair instructions or instructions for use BGB.
for resource-saving use, this can also be expected in
the context of the purchase contract.61 (2) Repair as a primary remedy
In order to strengthen the remedy of repair in the
bb Repair as a remedy context of supplementary performance under sales
(1) Problem description: Freedom of Choice law, it could therefore be an option to deprive the
If the seller succeeds in delivering the object of sale, buyer of his right to choose and to anchor repair as
but it is not free of material defects or defects of title the primary remedy.65 Subsequent delivery would only
(Sections 434, 435 BGB) at the time of delivery, the be an option if repair would involve disproportionate
buyer must or may request the seller to remedy the effort. This could lead to significantly more “still
defect in accordance with Section 439 (1) BGB before he salvageable” smartphones and tablets remaining in
can withdraw from the contract or claim damages. This circulation instead of being disposed of. What sounds
serves the interests of both parties to the contract: The promising in theory has yet to be proven in practice.
seller gets the possibility of a “second tender” and the Since, except in direct manufacturer sales, the seller is
chance to earn the full purchase price after all. He also not the manufacturer at the same time, he often lacks
avoids having to take back the formerly new item and the infrastructures and resources necessary for repair.
sell it as second-hand goods at a significant discount.62 In concrete terms, this means that sellers often have to
The buyer, on the other hand, has a fundamental resort to external repair companies to fulfil the repair
interest in the specific performance63 and would like to obligation. The resulting costs can be significantly
receive the specific item. How specifically the seller higher than the costs for supplying a new device that
can use his second chance has been in the hands of is already in stock. In many cases, the seller can then
the buyer since the Consumer Sales Directive 1999: “At invoke the disproportionate nature of the chosen
his option” he can demand – if available – delivery of a method of subsequent fulfilment, Section 439 (4) BGB.
completely new, this time defect-free item or removal In addition, dealers would have to create structures to
of the defect – i.e. repair – of the item already delivered,
61 Also Brönneke/Schmitt/Willburger in Brönneke/Föhlisch Tonner 2022 § 4 Rn 32.
62 Cf. BT-Drs. 14/6040, p. 221.
63 Lorenz 2006, p. 1175.
64 See also the results of the survey presented in the second chapter: According to this, only 22% of the respondents agree with the statement that
they would also decide in favour of a repair if a new purchase would be quicker. The majority of respondents disagreed with this statement: 44% of
respondents would decide to buy a new item if it could be done faster than a repair.
65 See Schlacke/Stadermann/Grunow, Rechtliche Instrumente zur Förderung des nachhaltigen Konsums – am Beispiel von Produkten, UBA Texte
24/2012, p. 27.
48 RIGHT TO REPAIR
avoid “repair backlogs”. However, this would mean a a reconditioned device was fully functional, because
considerable infrastructural and financial effort. it was important that the subsequently delivered item
corresponded completely to the originally owed item
The problem is not that a claim for repair would not in the sense of a generic debt. From a legal point of
exist within the framework of the warranty under sales view, a used appliance does not become a new item if it
law – but that there is a more attractive alternative. has been refurbished by the manufacturer. So far, this
Consumers and entrepreneurs could find themselves is the decision of a lower court. The Federal Court of
invited by a legally enforced repair to make a deviating Justice has not yet had the opportunity to comment on
agreement and instead agree on the shipment of new this problem.
goods – which in the end is preferable to both in case
of doubt. Put bluntly, there is not much to be gained in In addition, against the background of the proposed link
practice by creating an overriding legal consequence in between ecodesign and the Sale of Goods Directive, it
which, in case of doubt, there is no interest. Therefore, must be taken into account that a public-law obligation
it is not only a matter of creating incentives so that on the part of the manufacturer to provide updates for
consumers decide in favour of repair; rather, it is a a “refurbished2 appliance may no longer exist because
matter of naming the inherent disadvantages of repair it was placed on the market a long time ago. Originally,
as such and developing counter-strategies in order a device could have been purchased for which there is
to be able to exploit the sustainability potential of the an update obligation of several years according to the
repair claim. ecodesign rules, but in the context of the subsequent
performance, a device could be delivered for which
(3) Subsequent delivery of “refurbished” products such an obligation no longer exists. Even if the buyer
instead of new goods has a contractual claim against the seller for updates,
In recent years, more and more companies have been its enforcement is jeopardised because the seller
selling “refurbished” goods at favourable prices, usually does not develop the updates himself but
especially in the smartphone market. Refurbishment obtains them from the manufacturer. A subsequent
means the quality-assured overhaul and repair of delivery of “refurbished” devices would therefore put
products for the purpose of reuse. “Old” devices are the buyer in a worse position in several respects.
taken in part-exchange and refurbished for resale.
The promise is to receive a fully functional device – at When assessing whether a right to repair should take
a favourable price. Only the external appearance may precedence over a replacement delivery with a new
differ from that of brand-new goods, especially due to device, it must also be taken into account whether the
traces of use, but this is reflected in a corresponding device taken back will be reintroduced to the market as
price reduction. If a decision is not made in favour of a refurbished product.
repair or if this is not possible, the replacement delivery
of a “refurbished” product could contribute to the (4) Replacement unit for the duration of the repair
promotion of circular economy. However, apart from A major disadvantage of repair is the lack of availability
possible acceptance problems, there are weighty legal of the product during the repair period. The following
considerations that stand in the way: The purpose of two quotes from the answers to the open question
refurbishment is to (subsequently) satisfy the buyer's presented in the second chapter illustrate this once
interest in equivalence. If a new item is owed, a new item again:
must be delivered to remedy the defect. The Munich
Regional Court66 rejected the possibility of subsequent “My smartphone is my daily companion. Therefore,
delivery of a refurbished appliance on the grounds that a replacement during the repair would be very
appliances would no longer come close to the market convenient so that I don't have to reorganise myself.”
value of a new appliance after two years of use in this 24-year-old consumer
case, despite reconditioning. It was not sufficient that
66 LG München I, final judgement v. 25.03.2021 - 12 O 7213/20.
4. Legal approaches to repairability 49
“In the case of a repair, I could do without a new sentence 2 BGB. However, if the seller succeeds in
purchase, but in the case of a smartphone, for proving that the defect is not due to his fault but to a
example, I would have to (be provided with) a defect in manufacture, he is not liable. Since the seller
replacement device for the duration of the repair” 67
cannot prove the fault of the manufacturer according
63-year-old consumer to Section 278 BGB, a claim for damages would all too
often be empty. The mere assertion of a lack of fault
This could be counteracted by the obligation to provide a on the part of the seller, who is usually acting on a
replacement device. Such an obligation can be assumed commercial basis, is likely to deter many consumers
unproblematically within the framework of a transfer from pursuing their claims. A solution should be found
of use agreement (e.g. rental, leasing). However, already to include the provision of a replacement device
the seller's obligation of subsequent performance in the parties' agreement. Contractual models could be
is unsuitable for this purpose: The supplementary created that provide for the uncomplicated provision of
performance merely aims at the subsequent creation a replacement appliance in the event of a repair. This
of the contractual condition, namely the elimination could be done, for example, via an “insurance solution”
of the defect and grants the seller a “second chance”. in which the consumer pays a surcharge.
However, it is not intended to create a hypothetical
condition that would have existed if the performance cc Limitation
had been proper from the beginning. It is true that Regardless of how a repair claim is structured via the
Section 439 (2) BGB provides for the seller's obligation warranty for defects law, the statute of limitations
to bear the costs. However, this only includes the costs plays a decisive role: Art. 10 (1) of the Sale of Goods
necessary for the purpose of subsequent performance. Directive provides for a liability period of only two years
For the repair itself, however, it is not necessary that from delivery. Pursuant to Section 438 (1) No. 2 BGB,
the buyer receives a replacement device. the buyer's warranty claims become statute-barred
after two years from delivery of the object of sale. The
Meanwhile, in the motor vehicle sector, it is recognised rules of the statute of limitations de facto establish
that the injured party in an accident can demand a maximum durability period68, which means that
compensation for the necessary (Section 249 (2) warranty law cannot make a serious contribution to
sentence 1 BGB) rental car costs incurred during the the goal of sustainable product use: If the purchased
unavailability of his car due to the accident. These item has too short a lifespan or cannot be repaired,
principles are also to be applied in the case of damage this often only becomes apparent after two years have
to other property, irrespective of whether the property elapsed. At this point, however, the buyer's claim can no
is used privately or commercially. It is possible that longer be enforced. The problem is exacerbated by the
this idea could be applied to smartphones and tablets fact that the reversal of the burden of proof regulated
with a claim for damages according to Sections 437 in Section 477 BGB only applies for one year. From the
No. 3, 280 ff. BGB, which arises from the handover second year after the purchase onwards, it is up to the
of a defective object of purchase. The damage lies buyer to prove the existence of a defect at the time of
in the unavailability of the purchased device or in handover. Even if, for example, a due indication of a
the necessary costs of renting a replacement device minimum durability would fall under what is considered
for the duration of the repair. The seller could also as absence of defects, a violation after the expiry of
provide the replacement appliance himself within the the warranty period would have no consequences. In
scope of a claim for damages, Section 249 (1) BGB. addition, the buyer would have the burden of proof
However, such a claim is fraught with uncertainties: It already in the second year after the handover.
must be taken into account that a claim for damages
presupposes fault on the part of the seller. The
seller is presumed to be liable under Section 280 (1)
67 In the original response, instead of the phrase “a replacement device”, the phrase “get a replacement (device)” was used. This has been corrected
here for better readability.
68 Bach/Wöbbeking 2020, pp. 2672, 2675.
50 RIGHT TO REPAIR
(1) Extension of the limitation periods and reversal of Netherlands – be determined specifically according to
the burden of proof the respective product. In Norway there is an explicit
An obvious solution could therefore be to extend the differentiation between long-lived and short-lived
warranty period together with an extension of the goods73. The product group-specific regulations of
reversal of the burden of proof. 69
Art. 10 (3) of the the Ecodesign Directive lend themselves to such an
Sale of Goods Directive allows the Member States to approach. If an ecodesign implementing regulation
introduce longer periods. However, such considerations provides for a certain service life or an obligation to
face the objection that the limitation of the warranty stock spare parts, this period should be decisive for the
period has an important function in the market. limitation period. In this way, the Ecodesign Directive
Unlimited or excessively long warranty periods lead to and the relevant implementing regulations would be
price increases which customers in certain segments, given greater force.74 In addition, a suspension of the
especially for “disposable” products in the low-price expiry could be considered, so that the consumer still
segment, do not accept and may therefore prefer to has time to assert his rights after the expiry of the
do without them altogether.70 The lack of demand liability period.75
ultimately leads to certain products no longer being
offered at all. Excessively long warranty periods could The German Federal Government has also announced
therefore cause economic harm.71 However, several an extension of the warranty periods in the coalition
countries have significantly longer warranty periods agreement, but wants to orientate the warranty
(e.g. Ireland six years, Sweden even ten years). The period to the respective service life determined by the
European Commission is also considering extending manufacturer.76
the limitation periods.
Ultimately, a sustainable sales law can only come into
The Federation of German Consumer Organisations being if the problem of limitation periods is solved. If
(vzbv) was able to prove in a study that there were aspects such as durability and reproducibility or even
no systematic price increases in the Member States the durability explicitly included in the text of the law
that have provided for a longer warranty period than are to play a serious role for the law on warranty for
two years in implementation of the Consumer Sales defects, this must not be counteracted by excessively
Directive.72 The argument that defects typically appear short limitation periods. A one-size-fits-all approach in
shortly after handover, at any rate within the two-year the sense of a blanket extension of the warranty period
limitation period, so that the occurrence of defects also does not lead to the goal. A product group-specific
after this period is the exception, cannot be accepted in approach is preferable, be it by reference to eco-design
this context either. Apart from the fact that it is doubtful rules or with the help of manufacturers' specifications.
whether defects do not now regularly appear later, at This Policy Brief advocates a solution based on the
least in some product groups, such a justification would standardisation approach of the Ecodesign Directive.
possibly promote practices of planned obsolescence. It is conceivable that manufacturers could compete
for customers' favor by specifying the longest possible
However, a blanket extension of the warranty period lifespans, which would ultimately lead to more
seems too undifferentiated and a distinction between sustainable products being launched on the market.
short- and long-lived products must be made. The
liability period could therefore – as in Finland or the
69 Cf: Tonner/Gawel/Schlacke/Alt/Bretschneider 2017, p. 3,6; Kieninger 2020, p. 264, 277.
70 Tonner/Gawel/Schlacke/Alt/Bretschneider 2017, p. 3, 8.
71 Tonner/Gawel/Schlacke/Alt/Bretschneider 2017, p. 3, 8.
72 Bizer/Führ/Proeger 2016, p. 39.
73 Cf: Heselhaus, 2019, Rechtsvergleich bestehender rechtlicher Maßnahmen in der Europäischen Union und ausgewählten Staaten sowie der Schweiz
zur Förderung der Kreislaufwirtschaft im Konsumbereich, p. 88 f.
74 Further development of strategies against obsolescence including legal instruments, UBA Texte 115/2020, p. 240 f.
75 Bach/Wöbbeking 2020, pp. 2672, 2676.
76 Coalition agreement between SPD, Bündnis 90/Die Grünen and FDP 2021, p. 112.
4. Legal approaches to repairability 51
On the other hand, there is also the danger that the obligation to provide continuous software updates.
manufacturers compensate for short lifespans with Systematically, the continuous update provision is
other incentives such as price reductions or quantity assigned to the absence of defects, i.e. a defect arises
discounts, thus creating business models that are if the required updates are not provided. The Sale of
detrimental to sustainability. If one chooses the Goods Directive breaks with the traditional principle of
approach preferred by the Federal Government of the law of sales that only defects already existing at the
making warranty periods dependent on manufacturer time of the transfer of risk are relevant. As a result,
specifications, one should not follow the French the contract of sale undergoes a change of type in the
model of the Code de la Consommation, which also direction of a continuing obligation.77 From the point of
allows a “zero-warranty period”. Instead, eco-design view of sustainability, however, this regulation offers
rules should set a minimum standard to ensure that great potential, even if hardly any thought was given to
longer product use cycles are achieved. However, it when the Sale of Goods Directive was created.
manufacturers should be free to go beyond this
minimum standard. First of all, it must be emphasised that the time-period-
related obligation to provide an update means that
(2) Limitation periods for used products the seller must not only deliver the goods with digital
In order to support the market for used and refurbished elements free of defects once, but must also maintain
appliances, limitation regulations should also be them in this condition. Ultimately, he must “maintain”
considered here. At the moment Section 476 (2) the digital elements, which has a positive effect on
sentence 1 BGB provides for a reduction of the the life of the physical item due to the elementary
limitation period to one year for second-hand goods. link between hardware and software. In addition, the
In view of the already higher risk of defects in second- assignment of the obligation to update to conformity
hand goods, this provision does not provide an incentive with the contract or freedom from defects opens up
to buy second-hand goods. The same rules as for new the intended link between the Sale of Goods Directive
goods should apply. and the Ecodesign Directive. Since there will often be
a lack of individual agreements on the updating period
dd Update obligations [Section 475b (3) No. 2 BGB], the objective conformity
As part of its digital strategy, the EU has taken the with the contract is decisive: According to Section
increasing digital of economic life into account in the 475b (4) No. 2 BGB, the consumer must be provided with
creation of the Digital Content Directive and the Sale updates that are necessary to maintain the conformity
of Goods Directive. As a result, since 01.01.2022 there of the goods with the contract during the period that
are now for the first time provisions in the German he can expect in the context of the nature and purpose
Civil Code (BGB) that specifically address contracts for of the goods and their digital elements, and taking
digital products. Special provisions for so-called “goods into account the circumstances and the nature of the
with digital elements” were inserted into consumer contract. According to the explanatory memorandum to
sales law. This takes into account the fact that physical the law, the regulatory technique explicitly follows the
goods are increasingly connected with software and already known standard of legitimate expectation, so
that the software is often not just an “accessory” but that the considerations made above on the orientation
essential or elementary for the functioning of the towards product-specific standards can be applied
goods. accordingly:
Under these provisions, a component constitutes If ecodesign implementation regulations provide for
a digital element if the given item cannot fulfil its an update obligation for a certain product group for a
functions without the digital component. The most certain period of time, the buyer's legitimate expectation
important new provision concerns an aspect that is is based on this according to Section 475b (4) No. 2 BGB.
particularly relevant from a sustainability point of view: In this way, the ecodesign rules can be enforced through
77 Tonner 2019, p. 363; Riehm/Abold 2018, pp. 82, 87.
