25 November 2021 Kathrin Bauwens  -  Mirjam Erb ProductLiabilityLinks

Sustainability: Future German government has ambitious plans for warranty law

Environmental, social and governance (“ESG”) aspects are relevant for most, if not all areas of law. It is no news that this includes sustainability issues in product liability law. However, the future German government now presented plans for product liability that go far beyond previous considerations.

In their coalition agreement published on 24 November 2021, the Social Democrats, the Greens and the Free Democrats state that they want to make “sustainability by design” the standard for products. For that purpose, they inter alia want to ensure a right to repair as well as access to spare parts and repair instructions, and intend to establish an obligation for manufacturers to provide updates during the normal period of use. Most importantly, the coalition parties want to introduce “a flexible warranty period based on the respective service life determined by the manufacturer” for durable goods.

In general, this fits into the trend towards more sustainability. As part of the European Green Deal, the European Commission adopted a Circular Economy Action Plan in March 2020, which – as the Commission stated –

  • “aims to make our economy fit for a green future, strengthen our competitiveness while protecting the environment and give new rights to consumers” and
  • “focuses on the design and production for a circular economy, with the aim to ensure that the resources used are kept in the EU economy for as long as possible”.

Some of the coalition's plans are in line with those of the European Union. For instance, the Circular Economy Action Plan wants to “make sustainable products the norm in the EU” by ensuring that products placed on the EU market are designed to last longer, are easier to reuse, repair and recycle, and incorporate as much as possible recycled material. In addition, single-use shall be restricted, premature obsolescence tackled and the destruction of unsold durable goods banned.

However, the Circular Economy Action Plan does not provide for a general extension or flexibilisation of warranty periods, as is now apparently being considered in Germany. The Action Plan merely states that “[r]egarding the role that guarantees can play in providing more circular products, the Commission will explore possible changes also in the context of the review of Directive (EU) 2019/771/EC […] on certain aspects concerning contracts for the sale of goods”. Even if nothing has been decided yet, the plans of the future German government seem to go further in this regard.

The initial timetable in the Circular Economy Action Plan for implementation measures could not be adhered to in parts due to the Covid-19 crisis (see timeline). However, it is to be expected that the plans will be resumed in the near future – and also that the future German government will push for far-reaching new regulations, both at EU and German level. It remains to be seen whether and in which way warranty periods will be addressed.