The 2005 Ecodesign Directive (Directive 2005/32/EC) was the subject of earlier articles in LawNow (accessed here and here). This Directive provided a framework for implementing legal ecodesign requirements relating to energy-using products. The 2005 Directive has just been repealed and incorporated into a new and wider Ecodesign Directive (Directive 2009/125/EC). In EU legal terms this process of repeal and incorporation is called “recasting”.
The 2009 Ecodesign Directive (the “Recast Directive”) came into force on 20 November 2009. The Recast Directive extends the scope of ecodesign to cover energy-related products and not simply energy-using products. Member States are required to implement the Recast Directive into their domestic laws by 20 November 2010.
The aims of the Recast Directive are, at least on paper, very ambitious. However in simple terms the Recast Directive is a legislative tool aimed at improving the energy and resource efficiency of a potentially very wide range of products and reducing demand on natural resources. An underlying objective is that the measures will assist in meeting the challenges of security of energy supply and reduction in greenhouse gas emissions. A central premise is that to address these issues requires implementation of lifecycle concepts at the design stage of the relevant products. The Recast Directive is one example of a rapidly growing number of legal instruments which are slowly but surely embedding in law the principles of sustainability.
Energy-related products v Energy-using products
The 2005 Ecodesign Directive defined energy-using products as a product “which ….is dependent upon energy input (electricity, fossil fuels and renewable energy sources) to work as intended, or a product for the generation, transfer and measurement of such energy, including parts dependent on energy input and intended to be incorporated into an energy-using product….and of which the environmental performance can be assessed independently”.
The Recast Directive defines energy-related products as “any good that has an impact on energy consumption during use……..and includes parts intended to be incorporated into energy-related products………and of which the environmental performance can be assessed independently”.
Thus energy-using products are now a subset of energy-related products. Thus well known white goods and consumer goods will still be covered (such as household appliances, computers and televisions) but the ecodesign requirements may now conceivably extend well beyond these types of products. A few examples of the type of products which later may be covered by the Recast Directive are expressly set out in recital (4) to the Recast Directive which states “…..certain energy-related products, including products used in construction such as windows, insulation materials, or some water-using products such as shower heads or taps could also contribute to significant energy savings during use”. There may be other product types which can be added to this list.
Any products v Energy-related products
Importantly, the Recast Directive expressly provides that the EU Commission must review the effectiveness of the Recast Directive and its implementing measures, no later than 2012. Following this review, the Commission is obliged to assess (considering in particular the experience related to the extended scope of the Recast Directive) whether it would be appropriate to extend again the scope of the Recast Directive so as to cover non-energy-related products where a significant reduction in environment impacts could be achieved through changes brought about by the use of lifecycle analysis at the design stage of products.
A Framework Directive
The Recast Directive is a framework directive. This means that the Directive does not itself identify which particular products should have ecodesign requirements (and what those requirements should be) imposed in their manufacture, as a legal prerequisite to such products being placed on the market in the EU. Instead the Recast Directive sets out the procedures, rules and criteria for the subsequent identification of likely target products, likely ecodesign requirements and appropriate legal implementing measures (see, for instance here which is our recent article on the implementing measures relating to Standby-mode).
The Recast Directive has implications which are patent, latent and, in many respects, very subtle. It would be easy to overlook the potential significance of this Directive. The ramifications for product manufacturers, and for design and procurement professionals are as yet unquantifiable. Nonetheless, the signals from the EU are clear. Ecodesign is being taken seriously as a tool for change and those that are not aware of this may harm their future competitiveness.
The Recast Directive is made up of a number of important constituent parts. We cannot address all of these in this one article. Instead we will follow up this article with further articles concentrating on important particular aspects of the Recast Directive.