Right to repair under new EU directive: what will change for consumers and what won’t

Obligation to repair with exceptions 

According to De Vogel, the directive’s title gives the wrong impression. “The title gives the impression that, from now on, consumers simply ‘have a right’ to a repair, as if they could simply go to the shop or the manufacturer whenever there is a fault and demand a repair. The reality is more nuanced.” That is not to say that consumers were previously left empty-handed: even under existing consumer law, a buyer can demand free repair or replacement from the seller in the event of a faulty product. However, that right only applies in the event of non-conformity within the warranty period. 

The new directive adds a separate, broader obligation to this. For a limited list of products, such as vacuum cleaners, washing machines, smartphones and tablets, manufacturers must now also offer repairs outside the warranty period, albeit often for a fee. But even then, the manufacturer may refuse if repair is “factually or legally impossible”. A term that the directive itself does not define. According to De Vogel, this could work to the consumer’s disadvantage: “This may make it easier for a manufacturer to invoke the exception, whilst the consumer is generally at a considerable disadvantage when it comes to proving that repair was in fact possible.” 

A warranty with a catch 

The directive actually regulates two different matters that are easily confused: a new obligation on manufacturers to carry out repairs, and an amendment to the existing warranty protection provided by the seller. 

Without the directive, a consumer has no legal means whatsoever of forcing a manufacturer to carry out repairs. Only the seller can be held liable, and even then only in the event of non-conformity: a fault that was already present at the time of delivery. If a fault arises later, for example due to normal wear and tear, the consumer is left empty-handed. “Consumers currently have no legal means of obliging manufacturers to carry out repairs, because there is no contract between the consumer and the manufacturer from which such an obligation can be derived,” explains De Vogel. The directive therefore introduces an independent obligation that fills this gap: manufacturers of a limited list of products, such as washing machines, dishwashers, vacuum cleaners, smartphones and tablets, must carry out repairs at the consumer’s request, even after the warranty period has expired, at a reasonable price. This obligation does not apply if repair is factually or legally impossible. The Dutch bill adopts this obligation virtually unchanged. 

Apart from that, there is also a change to the existing warranty protection provided by the seller. A minimum warranty period of two years applies throughout the EU: if a product breaks down within that period due to a fault that was already present on delivery, the seller must repair or replace it free of charge. However, those two years are a European minimum, not a maximum. Member States may apply a longer period, but not a shorter one. The Netherlands makes use of this by not setting a fixed period: here, a product must last as long as the consumer can reasonably expect based on its lifespan, which, depending on the type of product, may be shorter but also much longer than two years. During the first year after delivery, there is a legal presumption that a defect already existed at the time of delivery; thereafter, the burden of proof rests with the consumer. 

The Directive adds a further obligation here: if, in the event of non-conformity, a consumer opts for repair rather than replacement, the seller’s liability period must be extended once by twelve months. For Member States with a fixed warranty period of two years, this is a simple matter of addition. For Member States without a fixed period, such as the Netherlands, the Directive offers an alternative: they may instead opt for a fixed period of three years for non-conformity, or for a limitation period of at least three years. 

The Netherlands has opted for the latter approach. According to the legislator, a fixed period of three years would represent a break with the existing open system and would, moreover, be detrimental to products that can reasonably be expected to last longer than three years: their protection would then be shortened rather than extended. Instead, the existing limitation period of two years, specifically following a repair, is being extended to three years. The conformity period itself, that is, the length of time a product must continue to function properly, remains linked to the expected lifespan in the Netherlands. Only the limitation period, the deadline for bringing a claim following a reported defect, is extended by one year following repair. 

Incidentally, the regulator, the Netherlands Authority for Consumers and Markets (ACM), has expressed doubts as to whether consumers will benefit significantly from this in practice, as the existing open system, based on the expected lifespan, often already offers a comparable level of protection. 

Apart from this approach, the problem highlighted earlier by De Vogel remains: the legal presumption of evidence does not apply during the extended period. “If a new defect arises, the consumer must prove themselves that it already existed at the time of delivery. Without technical expertise, this is very complicated for a consumer.” 

Will replacement remain the norm? 

According to De Vogel, it is still uncertain whether the directive will actually change behaviour. “Almost every measure in the directive assumes an active, informed consumer.” People must choose to have their goods repaired themselves, find a repairer themselves via the new European platform, and request a refurbished replacement product themselves. Moreover, previous research shows that consumers currently often opt for replacement, for reasons such as price, the appeal of new products and doubts about the quality of repairs. 

Nevertheless, De Vogel also sees some bright spots. The manufacturer’s obligation to repair is, unlike the information obligations elsewhere in the directive, a genuinely enforceable right, and this obligation is reproduced virtually unchanged in the Dutch bill. And the right to a replacement product free of charge whilst the item is being repaired under warranty may, in her view, “remove a significant practical obstacle to repair”. Nevertheless, the question remains: “It is doubtful whether that nudge is strong enough to change ingrained consumer behaviour.” 

Differences between Member States 

Under the directive, Member States must adopt at least one measure to promote repair, such as vouchers or information campaigns, but are free to decide how to do so. It has not yet been decided which measure the Netherlands will choose. The directive therefore leaves room for Member States to decide on this point, and according to De Vogel, this has a downside. “A consumer in one Member State may thus receive a considerably greater financial incentive to opt for repair than a consumer elsewhere, whilst the underlying repair obligations and information requirements set out in the Directive are the same for both.” This could potentially disrupt the single market and lead to unfair competition between repair sectors in different countries. 

Making repair the first choice: is that possible and desirable? 

According to De Vogel, the directive could have gone further on several points. A broader list of products would have immediately increased the impact of the repair obligation. Maintaining the presumption of proof during the extended warranty period would have given the warranty greater value. And the original, more ambitious draft directive, which restricted the free choice between repair and replacement under warranty, would have sent a stronger signal. That amendment ultimately did not make it through.

According to De Vogel, the directive does therefore take some steps forward, particularly in terms of information and a limited repair obligation for manufacturers. However, the binding force required to actually make repair the first choice is largely lacking. Moreover, it is not yet clear exactly how this will play out in the Netherlands. The draft implementation bill is currently still before the House of Representatives and is subject to further changes.