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Green Growth: Planned obsolescence… of the planned obsolescence?

_DSC2416 Violaine MOTTE_newsletterThe new energy transition and green growth law (Loi n° 2015-992) passed by France’s lower chamber on August, 17th, 2015, initiates for the first time express provisions setting out and regulating planned obsolescence, that is, programming lifetime of certain products.

The French law is part of a wider movement against planned and built-in obsolescence across the European Union, mainly initiated by:

  • European institutions: the Consultative Commission on Industrial Change (CCMI) is developing a project initiated by the European Economic and Social Committee (EESC) who issued an opinion on October 17th, 2013 with 10 recommendations in order to combat the business strategy of obsolescence: “Towards more sustainable consumption: industrial product lifetimes and restoring trust through consumer information by on product lifetimes and consumer information”.
  • Professional bodies: the Component Obsolescence Group (COG) was created in 1997 in the United Kingdom and established a branch in Germany in 2004. It was made up of professionals concerned with addressing and mitigating the effects of obsolescence of electronic components, mainly limited to the defence and aerospace companies industries. The International Institute of Obsolescence Management (IIOM), which was created in January 2015 by the COG (and replaced it), will take the knowledge-sharing network developed by the COG and extend support for Obsolescence Management to a wider range of industries and materials.

In France, for a long time the legislation used to only refer to general provisions related to the obligation for the professional to inform the consumer, prior to the conclusion of the contract, in the general terms and conditions of sale, on the existence and implementation of legal guarantees (conformity and hidden defects) and, where applicable, on the commercial guarantees and after-sales services (Art. L.111-1 and L.133-3 of French Consumer code).

A first step in the fight against planned obsolescence was taken with the law “Hamon” of March 17th, 2014 (Loi n°2014-344), which enhanced professionals’ obligations, notably with the following provisions:

  • Improvement of the conditions of information of the consumer on the legal guarantees (conformity and hidden defects, Art. L.211-15 of French Consumer Code)
  • Extension, from March 18th, 2016, from 6 to 12 months (except for second hand products) of the time period during which the lack of conformity is presumed to be to have existed at the time of delivery
  • Information given to the consumer on “the period during which or the date until which the spare parts essential to the use of the goods are available on the market” (Art. L.111-3 of French Consumer Code)

The implementing decree n°2014-1482 of December 9th, 2014 provided details on the conditions of information between the manufacturer or the importer and the professional seller, and the seller and the consumer.

The law n°2015-992 of August 17th, 2015 provides the following general provisions:

  • Promotion of a new goal for the national policy of waste prevention and management: “fight against planned obsolescence of manufactured products thanks to the information of the consumers” (Art. L.541-1 of French Environmental Code)
  • Definition of planned obsolescence: “all the techniques by which the marketer tends to deliberately reduce the lifetime of a product in order to increase its substitution rate”

Planned obsolescence is now a criminal offence punishable by a penalty of up to two years of imprisonment and a fine from EUR300.000 up to – in proportion with benefits induced by such behavior – 5% of the annual turnover based on the three former years (Art. L213-4-4 of French Consumer Code).

It is likely that there will be difficulties regarding the identification of the offence since it will be required to prove i) that the lifetime of the product has been shortened, ii) the used method and especially iii) a willful intention.

For the environmental association ”France Nature Environnement (FNE)” the French Law is above all “a strong political signal sent to manufacturers, distributors and citizens”.

The implementation decrees are in preparation.

Violaine MOTTE