Enforcement of the new ecodesign requirements in the era of COVID-19
The so-called Ecodesign Directive (Directive 2009/125/EC) and Regulation (EU) 2017/1369 create a legal framework in the European Union for the definition of harmonized ecodesign requirements for certain products and energy labeling for such products.
Within this framework, a series of Delegated Regulations were issued in 2019 with regard to energy labeling for certain products (electronic displays, household washing machines and household dryers, refrigerating appliances and household dishwashers), as well as new ecodesign requirements for external power supplies.
While the ecodesign requirements for external power supplies have been in effect since 1 April 2020, the new labeling requirements will generally not take effect until 1 March 2021. However, suppliers are required to provide rescaled labels for the relevant products and enter the parameters of the new product information sheets into the product database as of 1 November 2020.
But due to the COVID-19 pandemic, it may be difficult or even impossible for manufacturers to test their products or have them tested in order to obtain the information necessary for this purpose. Moreover, there has been a noticeable slump in demand, which means in turn that manufacturers' warehouses are still full of products which are labeled in accordance with the old rules.
As a result, several member states and industry associations have pointed out the existing difficulties to the Commission and expressed their understanding for the problems which the industry faces in complying with its obligations given the current situation.
The Commission has now published a Notice in this regard stating that the national market surveillance authorities responsible for monitoring and enforcing the legal requirements are required to perform their functions on an ongoing basis and that neither the competent authorities nor the individual member states have the authority to set aside deadlines or obligations established in Union legislation.
However, the Commission points out that the principle of proportionality must be considered at all times when enforcing requirements of Union law and advises the member states to take the following conditions into account given the current situation:
- the exceptional and unforeseen circumstances caused by the COVID-19 crisis, as demonstrated by the manufacturers, which prevent them from complying with the obligations under the energy labeling Regulations;
- the relatively time-limited nature of the issue, given the relatively short time period during which manufacturers would be able to continue placing products on the market with the current label only;
- the need for manufacturers to continue to be able to place their products on the market, particularly those which are currently stockpiled in their warehouses.
In the event that member states choose not to enforce the new requirements in line with these conditions, the Commission will refrain from initiating infringement proceedings. This applies to the period between 1 November 2020 and 1 March 2021 with regard to the energy labeling requirements and for the period through 1 October 2020 with regard to the ecodesign requirements for external power supplies.
The Commission's recommendation is directed towards the member states and will have no direct impact on the practices of the authorities, let alone the legal requirements for placing the relevant products on the market. We will therefore have to wait and see how the individual member states and the individual national authorities will respond to this recommendation and what effect this will have on the harmonized European regulatory framework.
Nevertheless, economic operators should keep in mind that the requirements can only be "suspended" for a limited time. Unless a transitional decision is issued based on this recommendation, the requirements will take effect in October 2020 and in March 2021 regardless of the current situation.