Ecodesign for Sustainable Product Regulation

Position

BDI on the draft Ecodesign for Sustainable Product Regulation (KOM (2022) 142 final) (ESPR) of the European Commission of 30 March 2022 Draft Ecodesign Regulation (KOM (2022) 142 final)

Federation of German Industries (BDI)

Status: 22 June 2022

Draft Ecodesign Regulation (KOM (2022) 142 final)

The BDI comments as follows on the draft Ecodesign for Sustainable Product Regulation (KOM(2022) 142 final) (ESPR) published by the European Commission on 30 March 2022 as part of its Sustainable Product Initiative (SPI): Transparent demarcation of products and product groups The criteria used in future to determine the products or product groups and their delimitation to which the ESPR is to apply must be transparent and comprehensible. For the implementation of the ESPR through delegated acts, the EU Commission should also adopt and apply horizontal methodological transparent guidelines.

Life cycle analysis as the basis for assessing environmental impacts For each selected product or product group, the Ecodesign requirements should focus on those criteria where the environmental impacts are most relevant, following a holistic life cycle analysis. However, different products can often be inadequately compared only on the basis of their different environmental impacts. Even identical products are only approximately comparable if the same methodology and comparable accounting limits as well as comparable functional units are observed. Within the LCA field, there are very controversial discussions about when products are comparable.

Furthermore, it is not easy to codify the environmental impacts in the use phase of products, since, among other things, individual user behaviour has a major influence on the overall sustainability of a product during its life cycle.

Special legislation before general regulation Product groups for which special legal regulations already exist should be explicitly excluded from the application of the ESPR. Corresponding regulations of sustainability requirements are already included in the framework of the respective special legislation. Examples are construction products, batteries, technical textiles (including medical devices, personal protective equipment), means of transport for passengers or goods, and cars (since, for example, the revision of the End-of-Life Vehicles Directive is pending). In any case, the demarcation between the Ecodesign Regulation or the delegated acts and the relevant specific product-specific special regulations needs to be clarified.

Federation of German Industries (BDI)

Lobby register number R000534 Home address Breite Straße 29 10178 Berlin Postal address 11053 Berlin Contact Franz-Josef von Kempis T: +49-30-2028-1509 F: +49-30-2028-2509 E-mail: v.Kempis@bdi.eu Internet www.bdi.eu

Draft Ecodesign Regulation (KOM (2022) 142 final)

Ecodesign requirements must be balanced and implementable In the sense of a level playing field, mechanisms should be found that enable SMEs in particular to implement the requirements of the ESPR simply and unbureaucratically. This also concerns the inclusion of the EU Ecolabel (Article 34 of the draft ESPR). It is questionable whether the EU Ecolabel takes into account the same aspects for all product groups to the same extent as outlined in the draft. Since the EU Ecolabel would be "upgraded" here, it must be examined whether the requirements are applicable to the product groups covered by the delegated acts and whether the requirements are comparable or compatible with the intended minimum standards in the draft ESPR. Sufficient capacity required for drafting the delegated acts The European Commission also needs sufficient capacity to draft the delegated acts for the various products or product groups itself. Otherwise, the use of services of external consultants will be unavoidable. It should be taken into account that the number of delegated acts will increase dramatically with the extension of the scope. In order to make this phase more efficient and to accelerate it, relevant stakeholders should be involved in the drafting process according to Article 17. This is of particular importance in order to effectively support the path of industrial transformation by 2050 and not to hinder the establishment of low-emission future technologies through misguided regulations.

Involve all key stakeholders The member states, standardisation bodies and, above all, companies must be sufficiently involved in the development of product-specific delegated acts.

This is largely ensured in the drafting of product-specific implementing regulations for the previous Ecodesign Directive according to the available experience. Therefore, the composition of the Ecodesign Forums (Article 17 of the draft ESPR) is crucial.

Requirements for self-regulatory measures must be achievable.

Article 18(3)(b) requires that the quantitative market share of the signatories to the self-regulatory measure in relation to the products covered by this measure should be at least 80% of the units placed on the market or put into service. This is not feasible for many products with globally diverse www.bdi.eu

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Draft Ecodesign Regulation (KOM (2022) 142 final)

producers and importers - especially even in import-dominated markets.

Moreover, there is no clear and practicable reference to the required market shares for the goods placed on the market in the European economic area.

Also against the background of the relief of European authorities implied by the article, clear references to the common economic area with the manufacturers and producers located here should be created as far as possible.

Calculate PCF and PEF according to uniform methods The calculation of Product Environmental Footprints (PEFs) and Product Carbon Footprints (PCFs) (Article 1 of the draft regulation) must be carried out according to uniform, transparent and comprehensible methods in order to ensure comparability of the results for the final product at the point of use.

It should be noted that the comparison of environmental impacts for intermediate products, raw materials and basic materials often gives a distorted picture in relation to the actual environmental impacts of the finished product in the overall balance at the point of destination. Expenses for maintenance, reparability and circularity potential, for example, are not reflected in a carbon footprint. It must also be clarified how to deal with data from products from non-EU countries that are not subject to EU law. This also affects the general question of effective market surveillance in order to exclude competitive disadvantages for manufacturers in the EU compared to suppliers from non-EU countries.

Use of recycled materials requires sufficient quantities The requirements for the use of recyclates or minimum secondary raw material contents (Article 1) provided for in the draft regulation should be specific to the product or material in view of the possibly different ecological and technical implications. It is essential to take into account whether functioning material or product cycles already exist and what negative influences a requirement could have not only on the circular economy but also on other environmental areas such as resource or climate protection. For the plastics sector, it is also not ensured that appropriate recyclates will be available in sufficient quantities on the market at competitive prices. Furthermore, it is hardly possible to provide evidence of the recyclates used in products, which is of great importance for imports from non-EU countries and a correspondingly necessary market monitoring. Furthermore, if possible, only one recycled material quota or secondary raw material rate should be specified per product.

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Draft Ecodesign Regulation (KOM (2022) 142 final)

Do not exclude substances of concern in principle Under the Ecodesign Regulation, the use of substances should in principle not be restricted for reasons of chemical safety (recital 22 ESPR). Nevertheless, the draft regulation sets the framework for a possible restriction of substances, including substances of concern, used in the production process and present in the final product on the market, if they have a negative impact on the sustainability of the product (Preamble 22, Art 2 (28) ESPR in conjunction with Annex II). Further detailed explanations are needed here. For example, the requirement that substances that prevent recycling should not be used (see Art. 2, 28c ESPR) should be deleted. What matters here is the availability of appropriate recycling technologies. The ESPR must be in line with existing legal frameworks such as the REACH chemicals regulation. Duplicate regulations on chemical law requirements must be avoided.

Labelling of substances of concern in complex products hardly possible Furthermore, the naming of substances of concern in products (Articles 1, 5 and 7 in the draft regulation) with names, concentration etc. is hardly feasible, especially with regard to complex products (approx. 1000 substances and more). The benefit for consumers is also doubtful and it remains unclear how this information is to be used.

Digital Product Passport (DPP) must be both practice-oriented and applicable for small and medium-sized enterprises Digital product passports are important enablers for a circular economy. They must be created and handled in a practice-oriented manner. Where information is passed on in the value chain, this should also be continued in the future. This means above all that raw materials and intermediate products that are only passed on and traded within the value chain do not need a product passport and corresponding labelling, as long as the flow of information is ensured up to the final OEM, who then creates a DPP. At the same time, however, DPPs must be designed in such a way that even small and mediumsized companies can handle them without much effort. For example, in many cases it will be difficult for manufacturers to obtain corresponding data, especially from their often numerous suppliers. It is imperative to avoid a costly coexistence of different databases for companies. In this context, the role of the SCIP database needs to be clarified. In addition, responsibilities for the

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Draft Ecodesign Regulation (KOM (2022) 142 final)

accuracy of data must be clarified beyond the "point of sale", for example if the composition of a product changes during its use phase, etc.

It must also be ensured that the information contained in a DPP can also lead to the desired effect. Consequently, the goal cannot be to collect and make available all conceivable information, but rather to make a selection that also enables an increase in the circular economy. A repetition of the negative example of the SCIP database must be avoided at all costs. The same applies to the form in which the information is made available. In this context, it must be examined once again whether the decentralised provision of information is expedient or rather obstructive in the sense of a uniform provision.

Tackle evaluation of the new Ecodesign Regulation in good time The transformation of industry and product policy in the European economic area is imperative in order to meet international climate and sustainability targets. This dynamic change entails an increased compliance effort on all sides of the actors involved. In order to exclude inefficient and non-target requirements and reporting obligations, the evaluation of the regulation should take place in good time in order to effectively eliminate identified deficiencies in good time.

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Draft Ecodesign Regulation (KOM (2022) 142 final)

About the BDI The BDI conveys the interests of German industry to those with political responsibility. In this way, it supports companies in global competition. It has an extensive network in Germany and Europe, in all important markets and in international organisations. The BDI provides political support for international market development. And it provides information and economic policy advice on all topics relevant to industry. The BDI is the umbrella organisation of German industry and industry-related service providers. It speaks for 40 industry associations and more than 100,000 companies with around eight million employees. Membership is voluntary. 15 regional representatives represent the interests of industry at regional level.

Imprint Federation of German Industries (BDI) Breite Straße 29, 10178 Berlin www.bdi.eu T: +49 30 2028-0 Lobby Register Number: R000534 EU Transparency Register: 1771817758-48

Contact Franz-Josef von Kempis Senior Advisor T: +49 30-2028-1509 M: v.Kempis@bdi.eu BDI document number: D 1579

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