Regulating planned-obsolescence at the European Union level: A utopian objective?

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MARGOT GILLMANN

STUDENT NUMBER : 12310549

LLM EU COMEPETITION LAW AND REGULATION University of Amsterdam

MASTER THESIS

R

EGULATING

P

LANNED

O

BSOLESCENCE AT THE

E

UROPEAN

U

NION

LEVEL

:

A

U

TOPIAN

O

BJECTIVE

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The fact, for a manufacturer, to intentionally reduce the lifespan of the product he creates can be defined as planned obsolescence. Current European regulations are not sufficient to tackle planned obsolescence. The purpose of this Master's thesis is to assess the possibility of regulating it at European Union level, in order to complement existing national legislations in this field.

Several legal bases could be used, such as Article 114 TFEU or Article 169 TFEU. Among the possibilities of the legislator: new directive, regulation, or addition to an existing directive, the implementation of a new directive should be the most adequate. However, if it appears that it is legally possible to regulate planned obsolescence, its implementation remains, for many reasons, almost impossible.

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Introduction

'In 2050, we live well, within a planet’s ecological limits. Our prosperity and healthy

environment stem from an innovative, circular economy where nothing is wasted and where natural resources are managed sustainably [...]'. This quote from the Decision No

1386/2013/EU of the European Parliament and of the Council of 20 November 20131 demonstrates the importance given to the environment’s protection by the European Union (hereinafter “the EU”). The EU is constantly working on legislation to attain the objectives fixed for 2020, to emphasize smart, sustainable and inclusive growth2_{. In order to do so, a lot} of issues have to be taken into consideration, and, nowadays, one is particularly rising in some citizens’ mind: planned obsolescence, which means, in simple words, the mean to reduce the lifespan of a product.

Is it really a surprise if products might be designed in such a way that adversely affects their lifetime3_{? Have you ever wondered why your preferred Smartphone stops working properly in} 2 years' time, or why that ancient model of washing machines could last for a lifetime when you need now to change for a new one every 5 years? As another simple example, printers’ vendors have been criticized for their ink cardridges. It is argued that after a certain number of copies, the pack has to be changed even if not empty yet4_{. According to associations, this} causes unrecyclable waste, and harms the customers. The term ‘planned obsolescence’ itself dates from 1932, when the economist Bernard London documented the idea of ending the Great Depression in the US through planned obsolescence5_{. According to him, using a good} until it does not run anymore was an obstacle to the relaunch of the economy. He explained

1_{Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General} Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’.

2_{Communication from the Commission COM(2010) 2020 Europe 2020, A strategy for smart, sustainable and}

inclusive growth.

3_{European Commission, Horizon 2020 – Work Programme 2018-2020, Climate action, environment, resource}

efficiency and raw materials.

4_{Report, ‘Imprimantes : cas d’école d’obsolescence programmée ? Rapport d’enquêtes sur les enjeux et}

solutions en matière d’imprimantes et cartouches’, Halte à l’Obsolescence Programmée association.

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that planning obsolescence of the goods will actually lead to development of sales, putting an end to the massive unemployment6_.

Despite London’s thinking that planned obsolescence has got a lot of positive economic effects, a bunch of associations are fighting against it nowadays. They criticize the fact that planned obsolescence is against consumer’s rights because it takes out the possibility for them to consume in a durable and responsible way7_{. Survey after research, it becomes hard to deny} that higher level of production leads to higher effects on the environment. How all those obsolete goods are recycled? What is the impact on the environment of their waste management of such goods?

Regarding what had been mentioned above, dealing with planned obsolescence can be seen as entering one of the main objectives of the EU. The latter are exposed in Article 3(3) of the Treaty on the European Union (hereinafter 'TEU') and, comprise a 'high level of protection and improvement of the quality of the environment'. In order to complete those objectives, the EU can adopt various types of acts. The EU is exercising powers which are normally exercised by states, including extensive decision-making competences, subject to different constraints depending on the type of act being used8_{. When choosing between a regulation, a} directive or a non-binding act, taking into consideration the fact that it can be reviewed by the Court of Justice is one of the major points of the EU legislator. Rules have to be respected such as the subsidiarity or the proportionality principles and the proper legal basis has to be chosen. This is why, if the EU would decide to legislate on planned obsolescence, all those particularities would have to be assessed.

On the other hand, not only the EU can act when it comes to planned obsolescence. For example, when passing the ‘Loi relative à la transition énergétique pour la croissance verte’ (The law on energy transition and for green growth in 2015)9_{, France had become the first} country of the European Union (and in the world) to create sanctions for the practice of

6_{More precisely, ‘After the allotted time had expired, these things would be legally “dead” [...] and new}

products would constantly be pouring forth from the factories and the wheels of industry would be kept going and employment regularized and assured for the masses’.

7_{See to that effect, the Manifesto of HOP association (Halte à l’Obsolescence Programmée)}

https://www.halteobsolescence.org/a-propos/#manifeste.

8_{Catherine Barnard, European Union Law, (2}nd_{ed., Oxford University Press).}

9_{Loi n°2015-992 of 17th of August 2015 relative à la transition énergétique pour la croissance verte (2015)}

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'planned obsolescence' (obsolescence programmée). The legislation outlaws the 'use of techniques whereby the person responsible for placing a product on the market deliberately aims to reduce its lifetime in order to increase the replacement rate'10_{. After this law was} enforced, a first lawsuit was filed against the printer company Epson in France which its director faces a maximum sentence of two years in prison and a fine of €300 000 if found guilty.

At EU level, the European Parliament seems to seek for a solution. In July 2017, it urged the European Commission to act to counter planned obsolescence, by creating a clear definition of this term11_{. Furthermore, it asked the Commission to develop a system to track that aging} process and to create rules able to limit planned obsolescence by forcing manufacturers to design products that facilitate repair by third parties, as well as extending the warranties of products. The European Commission is also taking into consideration planned obsolescence. In its Communication “Closing the loop – An EU action plan for the Circular Economy” from 2015, it was already affirming that 'planned obsolescence practices can also limit the useful lifetime of products' and that it will initiate work to detect such practices12_.

As demonstrated above, all the principal actors in the EU seem to consider about regulating planned obsolescence. Nevertheless, the main question, and the research question of this thesis, remains pending; can the European Union legislate on the issue of planned

obsolescence given the limits to its competences and if so, should the EU actually exercise this competence?

This Master thesis will be divided in two chapters in order to answer the research question. In a first Chapter, I will assess what have already been done in Member states and by the European Union. In order to do so, the pre-existing national legislation and also case law related to planned obsolescence will be analysed. Moreover, EU legislation on environmental and consumer policy will be considered to look for elements related to durability of products.

10_{Loi n°2015-992 du 17 août 2015 relative à la transition énergétique pour la croissance verte, Article 99.} 11_{European Parliament Report on a longer lifetime for products: benefits for consumers and companies}

(2016/2272(INI)).

12_{Communication from the Commission COM(2015) 614, Closing the loop – An EU action plan for the Circular}

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After sketching the problem and looking more precisely at what has been already done at national and European levels in a First Chapter, this master thesis will then focus on all aspects of the decision-making procedure in a Second Chapter. This will allow us to decide whether there is a possibility for the Union to legislate on planned obsolescence by analysing all the conditions necessary to the creation of a measure and applying it to our subject, planned obsolescence.

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Chapter 1 – State of Play at National and

European Level

Introduction – Why is there a need to regulate planned obsolescence?

Planned-obsolescence raises two different issues: the protection of the environment and the protection of the consumers. Regarding the first issue, when producing goods, a lot of environmental impacts are to be taken into consideration. Indeed, some authors argue that planned obsolescence has negative environmental side-effects; it increases pollution, waste and depletion of scarce natural resources13_.

As regards to consumers, planned obsolescence influences them to buy the newest product by reducing the lifespan of the product, making it incompatible with a new version which will reduce the previous product version’s value for the consumer14_{. As a consequence, the} consumer will have to replace it with a new product quicker than they had planned. Some consumers indicated that they felt manipulated to accept offers to upgrade their product15_{. For} example, as it will be explained later in this Chapter, users of iPhones 6 and 6S felt obliged to upgrade their device because of the persistent messages appearing. Planned-obsolescence has consequences on consumers and can lead them to buy new products that they did not intend to do so. This is why consumers’ protection is one of the two reasons why authors consider that planned obsolescence should be better regulated.

Those two objectives of the European Union are challenged by planned obsolescence, which is also why some Member States and institutions of the EU are starting to address this issue.

13_{Walter Cardoso Stayro, José Benedicto Sacomano, José Celso Contador and Renato Telles, ‘Planned}

obsolescence or planned resource depletion? A sustainable approach’ (2018) 195 Journal of Cleaner Production 744-752 < https://www.sciencedirect.com/science/article/pii/S0959652618315695>.

14_{Volker G. Kuppelwieser, Phil Klaus, Aikaterini Manthiou, Othman Boujena, ‘Consumer response to planned}

obsolescence’ (2019) 47 Journal of Retailing and Consumer Services 157-165 <https://www.sciencedirect.com/science/article/pii/S0969698918305010>.

15_{Strausz R., ‘Planned obsolescence as an incentive device for unobservable quality’ (2009) 119 The Economic}

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This Chapter will then focus on the different measures that have already been taken in Member States and at the European level to fight planned obsolescence.

Section 1 – Tackling planned obsolescence in the Member States and in the European Economic Area

Member States of the Union had taken different approaches. France is the only country that decided to address directly planned obsolescence and to penalize it while Italy decided to condemn this practice through consumers rights and Norway, a country from the European Economic Area through extending warranties.

1.1. France and planned-obsolescence

The French population considered planned obsolescence even before 2015. A study made in 2012 showed that 52% of the French population wanted to consume better, and, 44% of them associated the idea of better consuming with buying products that last longer16_{. The study} demonstrates that this will is governed more by the idea of saving money than to protect the environment and reduce waste. However, protection of the environment’s concerns are continually growing in the country. In 2017, 39% of questioned persons considered themselves as ‘really sensitive’ to it and 60% is convinced that there is a need to change habits to fight global warming17_{. This result does not mean that people do not pay attention to} environmental aspects. However, that shows that when buying, it is more evident for the consumer to consider the money he spends that the impact of it on the environment. It is then probable that even before London’s definition of planned obsolescence, durability of the good was already an important factor for consumers, and, not only within the French population.

Three months before the twenty-first session of the Conference of the Parties (COP) that took place in Paris, Ségolène Royal, the French Minister on the Environment presented the “Loi relative à la transition énergétique pour la croissance verte” (The law on energy transition and for green growth). After the law was voted by the French Parliament (composed of the General Assembly and the Senate), in August 2015, France had become the first country in

16_{Study L’observatoire des consommations émergentes, ‘Évolution des tendances de consommation’ (2014)}

<http://lobsoco.com/wp-content/uploads/2014/09/Synthese-CE-vague-1.pdf>.

17_{Study Agence De l’Environnement et de la Maitrise de l’Énergie (ADEME), "Les français et l'environnement"}

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the world to define and penalize planned-obsolescence18_{. The new article L.213-4-1 of the} Code de la consommation reads as follow: ‘Planned obsolescence means the techniques by which a manufacturer aims to deliberately reduce the lifespan of a product to increase its replacement rate. It is punishable by two years’ imprisonment and a fine of €300,000’19_.

The energy transition law is not the first law that established rules on programmed obsolescence in France. The so-called ‘Loi Hamon’ of March 2014 introduced the notion of reparability and duty for sellers to provide for the possibility to repair goods20_{. As stated in} the introduction, reparability is another side of planned obsolescence and is maybe the first and more manageable step to reduce it. The law introduces an obligation for the seller to inform the consumer about the amount of time the spare parts will be available. Nevertheless, attention must be drawn to the fact that contrary to what could be suggested by the first paragraph of article L.111-3 of the Code de la consommation, there is an obligation to communicate the information only if the information has been made available by manufacturers and importers.

Reparability is now in the center of French government measures regarding planned durability of goods. On the 23rd_{of April 2019, Prime Minister Edouard Philippe and State Secretary} Brune Poirson presented in their paper for a circular economy, a reparability indicator for electronic goods and home appliances21_{. However, this indicator will not be mandatory for} producers that would not have an obligation to use it. Consumers will then have the responsibility to choose between a good with this indicator and another without knowing its durability. The French company SEB, the world leader in small household appliances, offers to repair goods that are still under warranty instead of systematically replace them. Also, when the warranty is not applicable anymore, it offers to send the good to a professional for less than one-third of the price.

18_{Loi n°2015-992 of 17th of August 2015 relative à la transition énergétique pour la croissance verte (2015)}

JOFR n°0189.

19_{Article L.213-4-1 du Code de la consommation : « I.- L’obsolescence programmée se définit par l’ensemble}

des techniques par lesquelles un metteur sur le marché vise à réduire délibérément la durée de vie d’un produit pour en augmenter le taux de remplacement. II.- L’obsolescence programmée est punie d’une peine de deux ans d’emprisonnement et de 300 000€ d’amende. III.- Le montant de l’amende peut être porté de manière proportionnée aux avantages tirés du manquement, à 5% du chiffre d’affaires moyen annuel, calculé sur les trois derniers chiffres d’affaires annuels connus à la date des faits. ».

20_{Loi n°2014-344 of 17th of March 2014 or ‘Loi Hamon’ relative à la consommation JOFR n°0065.}

21_{Ministère de la Transition écologique et solidaire, Feuille de route économie circulaire (2019)}

<https://www.ecologique-solidaire.gouv.fr/sites/default/files/Feuille-de-route-Economie-circulaire-50-mesures-pour-economie-100-circulaire.pdf>.

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As regards to the law criminalizing planned obsolescence, an earlier proposition was made by the National Assembly. This definition was more ambitious than the one adopted and was assessing acts deliberately reducing the potential duration of the use of products. It also included a non-exhaustive list of different techniques that could be considered as planned obsolescence such as ‘the voluntary introduction of a defect, a weakness, a planned or premature outage, a technical limitation, an inability to repair, or an incompatibility’. The text adopted does not contain any list. The absence of such a list can lead to a broader definition indeed, but, also to uncertainty as the definition will have to be sharpen by the French judge. Furthermore, the claimant will have to prove the manufacturer’s intention to reduce the lifespan of the product deliberately by for example, showing that a product with the same characteristics can last longer. In my view, this is unlikely than proving the manufacturer’s intention will be an easy task. Indeed, proofs under French law is very well regulated by the Civil Code22_{. Those criticisms are not the only ones made by consumers’ protection} associations. In an interview, Lydie Tollemer, a lawyer working for the association ‘Halte à l’Obsolescence Programmée’ pointed out the fact that planned obsolescence was codified in the French Consumer code but referring to criminal sanctions. This was non-usual and could create complications for consumers. Indeed, the fines constituting criminal sanctions in France are given to the State, and not directly to the consumer. The latter, to be compensated should bring another claim, this time, in front of civil courts23_.

The same French association HOP filed legal complaints in September 2017 against Epson24 and in December of the same year against Apple25_{for planned obsolescence. It claims that} Epson printers force users to change the ink cartridges before they are empty. Regarding Apple, HOP points out the fact that it intentionally slows the performance of older iPhones by forcing users to install newer versions. Since the legal complaints, the Prosecutor estimated that there were enough proofs to open preliminary investigations in December 2017 for Epson and in January 2018 for Apple. Even if the association was confident and thought that the

22_{French Civil Code Article 1358.}

23_{Interview made as part of this Master thesis with Lydie Tollemer Lawyer for the association Halte à}

l’Obsolescence Programmée (April 2019).

24_{<https://www.halteobsolescence.org/les-fabricants-dimprimantes-mis-en-cause-par-une-plainte/> access on the}

1st_{April 2019.}

25_{<https://www.halteobsolescence.org/hop-porte-plainte-contre-apple-obsolescence-programmee/> access on}

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answer from the Prosecutor to close or to open the case would be given 9 to 12 months after the opening of the investigations, at this time, there is still no such information26_.

After the entry into force of the law penalizing planned-obsolescence, France is still waiting for a first decision on the matter. Which, regarding the lack of definition of specific terms, could be useful to understand what is allowed and what is not. Regarding the Epson and Apple cases, consumers could hope that the Prosecutor will take the decision, discussed in the next section, taken by Italian authorities against Apple and Samsung as an example.

1.2. Unfair misleading practices: The case of Apple and Samsung in Italy

The Italian Competition Authority decided on 24th_{of October 2018 to condemn Apple to pay} 10 million euros and Samsung to pay 5 million euros27_{. The AGCM (Autorita Garante della} Concorrenza e del Mercato) considered practices aimed at suggesting persistently to update the smartphone’s operating systems as unfair, misleading and aggressive. The ICA concluded that those two companies were therefore breaching Articles 5, 6, 7 and 8 of Directive 2005/29/EC on Unfair Commercial Practices (hereinafter ‘UCPD’)28_{. In that case, consumers} were induced to replace their smartphones which the different updates reduced the lifespan.

The decision of the Italian Authority can raise two criticisms regarding the effectiveness of European consumer law29_{. First, the amount of the penalties laid down in the UCPD is} questionable. The maximum amount provided by the Italian Consumer code implementing the UCPD30_{could be regarded as not sufficient enough to dissuade such big companies like} Apple and Samsung. If considering as not sufficient, the implementation of Article 13 UCPD

26_{<https://www.halteobsolescence.org/plaintes-hop/#_ftn1> access on the 30}th_{May 2019.}

27_{AGCM (Autorita` Garante della Concorrenza e del Mercato), case No. PS11039, Apple, 25 September 2018;}

and AGCM, case No. PS11009, Samsung, 25 September 2018.

28_{Council Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices}

in the internal market amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (2005) OJ L149/22.

29_{Alberto De Franceschi, ‘Planned Obsolescence challenging the Effectiveness of Consumer Law and the}

Achievement of a Sustainable Economy – The Apple and Samsung Cases’ (2018) 7 Journal of European

Consumer and Market Law 217-264

<http://kluwerlawonline.com/abstract.php?area=Journals&id=EuCML2018044>.

30_{Article 27(9) Italian Consumer Code: ‘In its measure prohibiting the unfair commercial practice, the Authority}

shall also impose an administrative fine of between €5,000.00 and €5,000,000.00, to take account of the seriousness and the duration of the infringement. In the case of the unfair commercial practices provided by section 21 (3) and (4) the penalty shall not be less than €50,000.00.’.

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is not entirely done in Italy as it provides that the penalties ‘must be effective, proportionate and dissuasive’. Therefore, the fact that a marge de manoeuvre was left to Member States to determine the penalties in case of a breach of the UCPD could lead to a lack of effectiveness of such rules. To remedy this lack of effectiveness and proportionality, the UCPD should, in my view, have fixed an amount of penalty linked to the annual turnover of the company31_. The second criticism raised by these cases regarding EU Consumer law is that planned obsolescence is not regulated by the legal rules governing unfair commercial practices as such32_{. The Authority condemned not the fact that the lifespan was reduced, but the lack of} information on the consequences of the updates, of choice to do the updates and of means of restoring the previous functionalities.

Indeed, as opposed to France, Italian law does not have a rule governing directly planned obsolescence but only focusses on ways through which planned obsolescence is attained. This timid approach is a discrete step forward against reducing lifespan of products and can be completed by extending warranties as it will be developed in the next section.

1.3. Extending warranties and favouring repairs: the example of Norway

The approach of the Norwegian Consumer Law is more based on the life of the product after it was sold than during its production. It first provides in Article 27 that consumers can complain about the defects of the product within two years or five years of the purchase33_. This first side of the approach concerns, therefore, an extension of the warranty to 5 years for products having a ‘significantly longer’ expected lifetime. The second aspect of this approach concerns the repair or replacement of the product that fell under the warranty. According to Article 29 of the Norwegian Consumer Law, the Consumer can choose whether to request that the seller repairs the defect or supply a similar product34_{. Those two aspects are} definitely linked and also aimed to protect the consumers. By extending the warranty, the consumer, in case of a defect, would not have to buy a new product.

31_{See above n 27 page 219.}

32_{Mariateresa Maggiolino, ‘Planned Obsolescence: A Strategy in Search of Legal Rules’ (2019) 50 International}

Review of Intellectual Property and Competition Law 405-407 <https://doi.org/10.1007/s40319-019-00812-1>.

33_{Article 27.2 Norwegian Consumer Law LOV-2002-06-34.} 34_{Article 29 Norwegian Consumer Law LOV-2002-06-34.}

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Nevertheless, regarding other EEA countries following this approach35_{, there is no obligation} to repair, but only a choice left to the consumer. The latter could be tempted not to follow the more ‘sustainable’ way by asking for a replacement of the product, for example, because it is faster than to repair it. Furthermore, the law provides exceptions for the seller to follow the choice made by the consumer. When a replacement or a reparation causes ‘unreasonable costs’ to the seller, this choice does not apply. Then, four years after the Norwegian Consumer law was introduced, the Supreme Court decided that when the consumer chooses a replacement instead of a repair, the trader can argue that replacement will cause unreasonable cost and then choose to repair. Furthermore, in its decision, the Supreme Court took into account the environmental impacts of the choice made by the consumer as it can ‘help to reduce the number of items that are destroyed unnecessarily’36_.

The Supreme court of Norway is thus willing to favour repair over replacement. Nevertheless, as pointed out by authors, this judgement does not establish an obligation for the consumer to choose the repair of the product. Plus, the law still allows for replacement without any hierarchy in the choices made37_{. This approach is the more feasible for EEA countries as it} does not create a new regime penalizing planned obsolescence like France but only extends the pre-existing warranties.

Those different approaches, through directly penalizing planned obsolescence, using consumer law to control the ways products’ lifespan is reduced or extending warranties are the one in place nowadays within the Member States of the European Union. Therefore, at national level, authorities are more and more considering the issue, but, such fragmentations between Member States could also be avoided by European legislation. The next section will therefore focus on the present European framework related to planned obsolescence.

35_{For example, the warranty in Sweden was put at three years, five years in Scotland and Six years in Ireland,}

England, Wales and Northern Ireland for any type of product.

36_{Jato AS, hjelpeintervenient: Handels- og Servicenæringens Hovedorganisasjon v Anne Kristin Solbakken,}

hjelpeintervenient: For brukerradet (Støvletthældommen) HR-2006-00299-A, Rt. 2006 s. 179, at paragraph 33.

37_{Eléonore Maitre-Ekern, Carl Dalhammar, ‘Regulating Planned Obsolescence: A review of Legal Apporaches}

to Increase Product Durability and Reparability in Europe’ (2016) 25 RECIEL 378-394 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3084571>.

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Section 2 – The beginning of considering regulating planned obsolescence by the Union

At the EU level, planned obsolescence has not yet been considered by special legislation. However, the Commission, through legislation or papers, already addressed the issue. Two significant topics led to taking into account planned obsolescence: the protection of the consumers and the protection of the environment.

2.1. Planned obsolescence through environmental concerns

In 2015, the European Commission adopted the Circular Economy Package, an action plan to move toward ‘more efficient ways of producing and consuming’38_{. The Commission affirms} that to attain those objectives, economic actors are key. In fact, next to waste management that constitutes a big part of the EU action plan but will not be assessed in this paper, two ways are privileged. First, a tool is given to the producers in the design of the goods they put in the market through the Eco-design directive. And, second, the importance of the choices made by consumers that would be influenced by the information at their disposal through, for example, Eco-labelling.

2.1.1. The Ecodesign Directive

As the Commission stated in its communication from 2015, ‘Better design can make products more durable or easier to repair, upgrade or remanufacture’. 39_{The objective of the} Commission was clear, to make reparability of electronic and electronical products covered by the Eco-design Directive40_{. Directive 2009/125/EC is a framework directive that provides} EU rules to improve the environmental performance of energy-related products. It is implemented in the Member States through product-specific regulations which are directly applicable41_{. Those regulations set minimum energy efficiency requirements; however, the}

38_{Commission, ‘Closing the look – An EU action plan for the Circular Economy’ COM(2015) 614 final, page 2.} 39_{Ibid, page 3.}

40_{Council Directive 2009/125/EC of 21 October 2009 establishing a framework for the setting of ecodesign}

requirements for energy-related products [2009] OJ L285/10.

41 _{See the} _different _Ecodesign _regulations _specific _to _each _type _of _product _here:

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Directive allows a broader scope of eco-design standards for environmental aspects42_{. Indeed,} the Commission in its Action plan aimed, in the future, to address issues such as reparability and durability through new regulations based on the Ecodesign Directive43_{. Furthermore, the} Directive in itself indicates that the product lifetime should be taken into consideration when setting requirements in future regulations44_{. For example, Regulation 666/2013 sets, next to} the requirements on energy efficiency, rules regarding motor operational lifetime and durability of the hose, a component of the vacuum cleaner45_{. Therefore, the lifetime of the} motor ‘shall be greater than or equal to 500 hours’ and the hose ‘shall be durable so that it is still useable after 40 000 oscillations under strain’.

The Ecodesign Working Plan 2016-2019 that followed the action plan follows this logic46_. The Commission wishes to establish specific requirements for products covered by the Directive in areas such as durability or reparability. To this end, it asks the European Standardisation Organisations for a standardization request covering extending product lifetime, ability to re-use components or recycle materials and the use of re-used components and recycled materials in products47_{. In its 2019 report on the Implementation of the Circular} Economy Action Plan, the Commission regards the inclusion of such rules on durability in Ecodesign measures as a promotion of a circular design of products48_{. Nevertheless, as} recalled, the European Standardisation Organisation is missioned to develop criteria to measure durability that ‘should be applied in existing and new standards’. But, such criteria are now still not set, which makes impossible the assessment of how it is applied to products as it does not exist yet.

42_{Carl Dalhammar, ‘Promoting Energy and Resource Efficiency through the Ecodesign Directive’ (2015) 59}

Scandinavian Studies in Law, page 155.

43_{Commission, ‘Closing the look – An EU action plan for the Circular Economy’ COM(2015) 614 final, page 4.} 44_{Directive 2009/125/EC, n. 31 above, Annex 1 part 1 para 1.3(i).}

45_{Council Regulation (EU) No 666/2013 of 8 July 2013 implementing Directive 2009/125/EC with regards to}

ecodesign requirements for vacuum cleaners [2013] OJ L192/24, Annex I para 1(b).

46_{Commission, ‘Ecodesign Working Plan 2016-2019’ COM(2016) 773 final. See in the introduction : ‘but the}

focus so far has been on energy efficiency improvements. In future, Ecodesign should make a much more significant contribution to the circular economy, for example by more systematically tackling material efficiency issues such as durability and recyclability.’

47_{Commission Decision C(2015) 9696 on a standardization request to the European standardization}

organizations as regards ecodesign requirements on material efficiency aspects for energy-related products in support of the implementation of Directive 2009/125 EC final

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The action plan of the Commission touches upon the production of goods directly through the Ecodesign directive. However, there is another aspect to consider, consumers also can play an important role in making manufacturers aware of the importance of durability which is going to be discussed in the next section.

2.1.2. Giving responsibility to consumers through Eco-label

The choice made by consumers can also support the circular economy and the environment as explained by the Commission in its Action plan for circular economy49_{. However, to be fully} conscious of their choice, consumers need to be in the position to gather enough information about products they intend to buy. As a fact, information influences choices, this is why informing consumers was seen as crucial by the Commission. Concerning the lifetime of a product, a study showed that lifespan labelling influences purchasing decisions; the sales of a product with a longer lifespan showed by a label will increase by 13.8%50_{. Furthermore, in the} same study, it had been demonstrated that the increase of the sales touches more household appliances like printers (+20,1%) or coffee makers (+14.4%) or smartphones (+11.4%). This study shows that information given to consumers, through labelling, can influence the purchases made by consumers.

Environmental labelling can be defined as ‘providing indications of the environmental impact related characteristics of a product, typically on the package containing the product’51_{. At EU} level, a first labelling directive52_{appeared in the context of free movement of goods to} guarantee the products and to give basic information concerning price, origin, ingredients of the products put into circulation. However, this first directive was not addressing any environmental concerns.

49_{Ibid., page 6}

50_{European Economic and Social Committee, The Influence of Lifespan Labelling on Consumers, Study (2016),}

page 2 <https://www.eesc.europa.eu/resources/docs/16_123_duree-dutilisation-des-produits_complet_en.pdf>.

51 _Retail _Forum _for _{sustainability,} _{‘Labelling’,} ₍₂₀₁₁₎ _Issue _Paper _n ₇

<http://ec.europa.eu/environment/industry/retail/pdf/labelling_issue%20paper_final.pdf>.

52_{Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating}

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Nowadays, there are two types of labelling, mandatory and voluntary. Regarding mandatory environmental labelling, the best example is the EU Energy labelling directive53_{that aims to} increase consumers’ awareness on the energy consumption of household appliances54_{. The} labels are the ones present on every household appliance in shops, showing a grade between A, green (the best) and G, red (the worst). Next to mandatory labelling exists voluntary labelling that are supposed to encourage manufacturers to comply with specific requirements in order to have this label. In 2017, France asked the Commission for a product ‘lifetime’ labelling55_{. Following this example, Members of the European Parliament asked the} Commission to consider ‘a voluntary European label, covering, in particular, the product’s durability’56_{. For example, the EU Ecolabel Regulation has a criterion of durability and} reusability of the products57_{. However, this label only uses durability as an indicator among} others and is not in itself a label on the lifetime of the product.

A European label ‘Longtime Label’ had been recently developed by a French cooperative ‘Ethikis’58_{. This label tends to cover household appliances, electronic appliances, furniture...} excluding cars, textile products, food and cosmetics. It is based on three criteria: the durable conception of the product, its reparability conditions and a superior warranty than the minimum one59_.

By increasing the awareness of the consumers through labelling that can give them the necessary information on the durability of the product they buy, consumers could make choices regarding the durability of the product. However, there is not, yet, a label instituted by European Institutions on durability. Furthermore, the Longtime label is, in my view, still new and poorly used. There is still work to do at the European level to stimulate consumers in the

53_{Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by}

labelling and standard product information of the consumption of energy and other resources by energy-related products.

54_{Ibid., recitals 4 to 8.}

55_Marion _Candau, _‘France _pushes _for _product _{‘lifetime’} _labelling’ _Euractiv ₍₂₀₁₈₎

<https://www.euractiv.com/section/circular-economy/news/france-pushes-for-product-lifetime-labelling/>.

56_{European Parliament Press Releases, ‘Making consumer products more durable and easier to repair’ (2017)}

< http://www.europarl.europa.eu/news/en/press-room/20170629IPR78633/making-consumer-products-more-durable-and-easier-to-repair>.

57_{Regulation 666/2013 Above n 43 Article 6(c).} 58_{See <}_{https://longtimelabel.com}_>.

59_{For more precisions about how the criterion are calculated: <} https://longtimelabel.com/wp-content/uploads/2019/02/04022019ReferentielLongtime.pdf>.

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choices they make. One of the reasons why it takes a long time is the complicated definition and criteria given to durability that needs a lot of scientific considerations.

Fighting planned obsolescence at EU level can then be done through environmental concerns. It can be directly addressed to producers by controlling the design and fabrication process. But, also, according to the Commission through the increase of consumers’ responsibility by labelling products. This environmental approach needs to be completed by a consumers’ side approach as consumers need as well to be protected against the reducing of products’ lifespan. In its report on the implementation of the Circular Economy Action Plan, the Commission demonstrates the link between those two aims; offering possible claims under Consumer Law against premature obsolescence practices60_.

2.2. Considering planned obsolescence through consumer’s protection

Planned obsolescence does not only concern environmental protection but also the welfare of consumers. In fact, European consumer rules have a crucial role in fighting planned obsolescence as it governs traders’ behaviour during the whole process of a commercial transaction (ie. before, during and after) of a product61_{. European actors already considered} the issue of products’ durability through consumers rules. However, as it will be demonstrated in this section, the statement is here less clear than in the Action Plan for a Circular Economy and there is a need to assess whether the general rules are actually applicable to traders reducing the lifespan of their product.

2.2.1. The definition of faulty product under the Consumer Sales Directive62

60_{Above 46 page 4.}

61_{Alberto De Franceschi, ‘Planned Obsolescence challenging the Effectiveness of Consumer Law and the}

Achievement of a Sustainable Economy – The Apple and Samsung Cases’ (2018) 7 Journal of European

Consumer and Market Law, 217

<http://kluwerlawonline.com/abstract.php?area=Journals&id=EuCML2018044>.

62_{Council Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and}

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Directive 1999/44/EC, known as the ‘Consumer Sales Directive’ adopted in 1999 has as a main purpose ‘the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market’63_{. It gives rights to consumers in the case a purchased good appears to be not in} conformity with the contract of sale. To that effect, Article 2(1) imposes a duty of conformity on the seller of the products sold with the description given in the contract. The presumption of conformity of the second paragraph of this article complicates the task for a consumer wanting to claim non-conformity because of lack of durability.

It appears that there is not an obligation for the seller to provide durable products, but an obligation not to tell consumers that it is durable if it is not as it will result in a non-conformity of the product with its description. Article 2(1)(a) states that the goods must comply with the description given. It has been established that the consumer has to prove that there is a lack of conformity with the description, however, he would not have to prove the cause and the origin of the lack of conformity64_.

In the case where there were no specific terms in the contract, Article 2(2)(d) applies. According to this paragraph, the criteria will be the normal quality and performance that the consumer can reasonability expect. As used in German Case law, to establish this criterion, it would be possible to take into account if the state-of-the-art technology used for similar product has not been followed65_.

However, even if it is not clear, because of the lack of case law regarding durability, if the Consumer Sales Directive can be used for consumers claiming a lack of conformity based on the durability of the product, the Commission gave a simple answer. While recalling that there is no EU legislation declaring planned obsolescence as a crime, it can be seen as a lack of conformity with the contract which gives consumers legal guarantee rights under Directive 1999/44/EC66_.

63_{Ibid. Article 1(1)}

64_{Case C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV [2015]}_{ECLI:EU:C:2015:357, para 70.} 65_{Tobias Brönneke, ‘Premature Obsolescence : Suggestions for Legislative Counter-measures in German and}

European Sales & Consumer Law’ Journal for European Environmental & Planning Law 14 (2014) 361-372.

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According to the Commission, the Consumer Sales Directive is an already existing mean for consumers to complain about the lack of durability of the product they bought. Another tool at the consumers’ disposal can also be Unfair Commercial Practice Directive as it will be explained in the next section.

2.2.2. The interpretation of the UCPD67

The primary purpose of Directive 2005/29/EC also known as ‘the Unfair Commercial Practice Directive’ (hereinafter ‘UCPD’) is to protect consumers against unfair commercial practices that can be exercised by traders68_{. The directive applies to all unfair commercial practices that} take place before, during and after a business-to-consumer transaction69_{. While reading} Article 5 on the prohibition of certain practices, it can be divided into three types of standards: a general clause (paragraphs 2(a) and 2(b)), a specific clause of misleading or aggressive practices (paragraphs 4(a) and 4(b)) and a total blacklist of certain practices that can be considered as unfair (paragraph 5)70_.

First, regarding the general clause of unfair commercial practice, it is composed of two different conditions; the requirement of professional diligence and the material distortion of the economic behaviour of the consumer. Professional diligence is defined as ‘the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers’71_{. Regarding what could be expected from the consumer, it is easy to think that he} will not expect that the product he bought has an intentionally reduced lifetime72_{. Regarding} the material distortion of the economic behavior of the average consumer, it is a cumulative condition to the first one. The question here is to determine whether the consumer would have taken another decision if he was aware of the lifespan of the product he was buying. As regards to the study already quoted about ecolabel on lifespan of a product, it showed that

67_{Council Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices}

in the internal market amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (2005) OJ L149/22.

68_{Ibid., Article 1.} 69_{Ibid., Article 3.} 70_{Ibid., Article 5(5).} 71_{Ibid., Article 2(h)}

72_{Koolhoven, R. & Luc Heerema, ‘Fighting planned obsolescence or ‘the lightbulb conspiracy’ as an unfer}

commercial practice: For a circular economy’ (2018) 27 E.Tec Yearbook Law & Technology <https://www.rug.nl/research/portal/files/74017190/e_tek_yearbook_web.pdf>.

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such information would have had consequences on the choice made by consumers. However, as R. Koolhoven and E. Heerema explained, the use of lifespan shortening techniques is not yet defined as being non-professionally diligent conduct. It is then uncertain that Article 2 paragraph 2 of the UCPD is an existing tool for consumers.

Nonetheless, as demonstrated in the Italian case against Apple and Samsung, the fourth paragraph of Article 2 UCPD can be a useful tool for consumers. A commercial practice is unfair if is misleading by action or by omissions. The Guidance on the implementation of UCPD gives a better explanation of how planned obsolescence falls under the scope of application of the directive73_{. The Commission is clear: even if planned obsolescence is not} unfair per se, the practice of a trader who does not inform a consumer that the product has been designed with a limited lifetime might fall within the scope of Article 7 for material information omission. However, this guidance is not binding and the words employed by the Commission are not as strong as they could be74_{. In the Italian case, the AGCM found that the} practice was unfair, misleading and aggressive. Apple was fined under Article 7 for misleading omissions concerning the lack of information regarding the duration, handling and costs for substitution of the batteries of certain models. Therefore, misleading omission is an option for consumers, but, as said before, will not likely lead to the cease of planned-obsolescence techniques and will leave the choice to the consumers.

2.2.3. A New Deal for Consumers regarding planned obsolescence?

The ‘New Deal for Consumers’ proposal was adopted on 11 April 2018 and aims to amend four EU directives in order to protect consumers. It envisages, for example, the right for consumers to individual remedies, to contract termination and to compensation75_{. However,} this is not this proposition that confirms the position of the EU to tackle planned obsolescence. It is the amended Proposal for a Directive on certain aspects concerning contract for the sales of goods of 31 October 2017 that underlines this intention76_{. In Recital}

73_{Commission Staff working document Guidance on the implementation/application of Directive 2005/29/EC}

on Unfair Commercial Practices SWD/2016/0163 final.

74_{For example, the Commission uses ‘might’ and ‘could’.}

75_{Communication from the Commission to the European Parliament, the Council and the European Economic}

and Social Committee COM(2018) 183 final ‘A New Deal for Consumers’.

76_{Amended proposal for a Directive of the European Parliament and of the Council on certain aspects}

concerning contracts for the online and other distance sales of goods, amending Regulation 2006/2004, COM(2017) 637.

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23, the Commission highlights the fact that durability requirements should be introduced for specific groups of products.

However, those statements are only made in recitals and are nowhere concretized, it will not, in the future, give proper instruments from EU consumer law to tackle planned obsolescence77_.

Therefore, the different proposals made by the Commission in consumer law are not a big step against planned obsolescence as it only addresses it in recitals or does not at all.

As demonstrated in this chapter, Member States of the Union are still very rare to address planned obsolescence in their legislation. Moreover, the Union does not provide any specific act against planned obsolescence even if it brings up the topic in new acts. This lack of rules at a European level and the different national legislations raise the question as to whether there is a need for European intervention. However, this cannot be done without following the decision-making procedure and complying with all conditions which will be assessed in the next chapter.

77 _{Alberto De Franceschi, ‘Planned Obsolescence challenging the Effectiveness of Consumer Law and the} Achievement of a Sustainable Economy – The Apple and Samsung Cases’ (2018) 7 Journal of European

Consumer and Market Law, 220

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Chapter 2 – The possibility of a EU measure

fighting planned obsolescence

Introduction: Decision-law making in the EU

The particularity of the Union is that it is not a State but it exercised powers that are usually exercised by States78_{. The decision process in the EU is then trying to conciliate the necessity} for the Union to act with the safeguarding of powers that Member States still enjoy.

As regards this particular nature that the Union has, the issue of democratic deficit rose in citizens’ minds. It is said that the Union lacks legitimacy in particular, for two reasons: there is a lack of democratic control and of sufficient citizen participation79_{. However, this more} political than legal concept can also be found in the Court of Justice case law. The Court defends the democratic system of the Union in the Van Gend en Loos case where it explained that citizens are participating in the functioning of the Community through the European Parliament80_{. The Treaty of Lisbon introduced a new provision on the democratic principle} stating that ‘the functioning of the Union shall be founded on representative democracy’81_{. It} also introduced the European citizens’ initiative (ECI).

Those particularities that EU decision-making contains creates a specific process with specific conditions to ensure the right balance between EU and Member States’ powers. The Treaties establishes a double-approach when it comes to legal principles limiting EU competences, the existence of the competence and the exercise of this competence82_{. Thus, this chapter will be} subdivided into two sections. The first one will assess the existence of the competence through the principle of conferral and will look for a legal basis for a Directive on planned

78_{Catherine Barnard and Steve Peers, European Union Law 2}nd_{ed. (2017) Oxford University Press p 97.} 79_{De Jongh, M., Theuns, T. (2017). ‘Democratic Legitimacy, Desirability, and Deficit in EU Governance’,}

Journal of Contemporary European Research 13(3): 1283-1300.

80_{Case C 26/62 Van Gen den Loos v Administratie der Belastingen [1963] ECLI:EU:C:1963:1.} 81_{Article 10 of the Treaty on the European Union.}

82_{Sacha Garben and Inge Govaere, ‘The Division of Competences between the EU and the Member States –}

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obsolescence. The second section will analyze to what extent the exercise of the competence will comply with the principle of subsidiarity and proportionality.

Section 1 – The existing jurisdiction of the Union: competence and legal basis

Competence and legal basis are two different things. As competence gives the general power to act to the Union that will depend on the nature of the competence, legal basis will be the legal foundation, the pre-existing Treaty provision on which the Union will establish the new act following the procedure provided depending on the area of action.

1.1.Principle of conferral

It is clear from the reading of Article 1 TEU that the Union was set up to attain common objectives of the Member States that conferred powers to the EU in order to do so83_{. Article} 5(1) TEU84_{states the limits of the competences conferred to the Union: ‘the Union shall act} only within the limits of its competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. This article shows that the Union’s competences are governed by the principle of conferral, or principle of attribution of competences. According to Article 4(1) TEU, the competences not conferred upon the Union remain with the Member States. It is apparent that this principle is the first of the structural principles governing EU decision-making process as it will determine the structure, the functioning and the exercise of EU law85_.

The domains of competences of the Union are classified into categories set out in Articles 2 to 6 TFEU. The first domain, the exclusive competences of the Union limits Member States’ competence as only the Union can legislate and adopt legally binding acts. Member States could be able to do so only if they are empowered by the Union86_{. This provision is new to the} Lisbon Treaty; however, it does not mean that before, there was no exclusive competence of

83_{Article 1 of the Treaty on the European Union.} 84_{Article 5(1) of the Treaty on the European Union.}

85_{Inge Govaere, ‘To give of to Grab: The Principle of Full, Crippled and Split Conferral of Powers Post-Lisbon’}

Research Paper in Law 04/2016 Études Juridiques Européennes Collège d’Europe

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the Union. Actually, the Lisbon Treaty only codified prior case law of the CJEU87_{. The list of} Article 3 TFEU giving the exclusive competences is supposedly exhaustive and contains the custom union, ‘competition rules necessary for the functioning of the internal market’, monetary policy for the eurozone, the conservation of marine biological resources, the common commercial policy and the adoption of international agreements. The next section will assess whether planned obsolescence could be regulated as an exclusive competence, and then, remain in the Union’s hands.

The second possible nature of competence is shared competences88_{. This category is residual;} any competence that is not listed as exclusive or ancillary will be shared. However, the article provides a list of key areas such as the internal market, the aspects of social policy, the environment and consumer protection. The use of the term ‘shared’ had been criticized as regarded more as a political choice than a real one. Indeed, once the Union had exercised its competence and adopted a rule on the matter, Member States are not competent anymore unless the Union decides to cease its exercise. The term ‘concurrent’ had been proposed as more accurate as it shows the course to the pre-emption of the Union89_{. This category will be} the prominent one in the next section as it contains both environmental and consumer protection and internal market areas which form a big part of the issues raised by planned obsolescence as demonstrated in the previous chapter.

The ancillary or complementary competences are areas where the Union can ‘carry out actions to support, coordinate or supplement actions of the Member States’. The subsequent EU acts must, however, not require the harmonization of national measures91_{. It is possible to} envisage that it could be used under the area of ‘industry’, but, it does not seem to be the best choice as shared-competences could be used, leaving more flexibility to EU institutions.

The principle of conferral and legal basis are undoubtedly linked as the second is proof of compliance with the first. The legal basis chosen for legislating about planned-obsolescence will determine the procedure, but also, the nature of the competence exercised by the Union. The next section will then, look for the possible legal basis and analyzing what could be the

87_{For example, in the Common Commercial Policy area Opinion 1/75 [1975] ECR 1355.} 88_{Article 2(2) of the Treaty on the European Union.}

89_{Catherine Barnard, European Union Law, (2}nd_{ed., Oxford University Press) 109.}

91_{‘Division of competences within the European Union’, Summaries of EU Legislation Eur-Lex <} https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Aai0020>.

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consequences of the different choices on the type of competence, and, on the nature of the legal act.

1.2. In search of the possible legal basis

Under the principle of conferral, every act adopted by the Union shall be based on a specific pre-existing Treaty provision which will constitute the foundation of this new act. This legal basis will give precious indications about the rationae materiae of the Union’s competence and will specify how this competence shall be exercised92_{. Looking for a legal basis is one of} the main steps for EU Institutions. Claims can be brought in front of the Court of Justice of the European Union (hereinafter ‘CJEU’) on the choice of the legal basis93_{. As regards to} planned obsolescence, this section will analyze which legal basis could be used by the Union to found future legislation on the matter and the consequences that will follow on the nature of the act adopted for example.

1.2.1. Article 114 TFEU

In its resolution urging the Commission to regulate planned obsolescence, the European Parliament uses, as a first basis ‘the Treaty on the Functioning of the European Union, and in particular Article 114 thereof’94_.

Article 114 TFEU gives a legal basis for the ‘approximation of laws, regulations and administrative provisions’ of the Member States where they ‘have as their object the establishment and the functioning of the internal market’95_{. Because this article does not} confer a general power on the Union to regulate the internal market96_{, European legislature} needs to answer to a certain number of conditions settled by the Court’s case law to use this

92_{Koen Lenaerts and Piet Van Nuffel, European Union Law (3}rd_{ed., Sweet & Maxwell) 113.}

93_{Case C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union}

‘Tobacco Advertising case’ [2000] ECR 2000 I-08419.

94_{European resolution of 4 July 2017 on a longer lifetime for products: benefits for consumers and companies}

(2016/2272(INI)).

95_{Article 114 of the Treaty on the Functioning of the European Union.} 96_{Tobacco Advertising Case See above n 88.}

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legal basis. Therefore, the intention to regulate planned-obsolescence at the EU level will have to comply with those requirements.

In order to base a European legal act on Article 114 TFEU, the object of the measure must genuinely be to improve the conditions for the establishment and functioning of the internal market97_{. Differences between national legislations can constitute such an obstacle to} fundamental freedoms if it can have a direct effect on it or cause significant distortions of competition98_{. Nevertheless, the measure can also be aimed at preventing the emergence of} such disparities in national rules if the emergence of those obstacles is likely and the measure designed to prevent them99_{. This notion of likelihood to affect refers to a ‘preventive} approximation’ that involves the assessment of three different likelihood100_{. First, in the} Vodafone case, the Court considered if it was possible that a national measure seeking the

same goal will be adopted101_{. Second, whether if such measure were adopted, it would lead to} a divergent development between the national laws, and, third, if obstacles to trade will emerge from such diverse developments of national laws102_.

Regarding planned obsolescence, one Member State of the EU is already regulating it (France), but the others have not already brought the issue to the legislative process. Assessing the conditions set up by the Court in the Vodafone case relating to the likelihood, it is possible to imagine that it is likely that the other Member States will, in the future, be tempted to adopt, following the French example, legislation about planned obsolescence. As regards to the second condition for ‘preventive approximation’, taking the example of the divergence in warranties granted to consumers between the different Member States, it is likely that such divergence could exist regarding the durability of certain goods. Furthermore, the obstacles could result from the undermining trust of the consumer in the functioning of the

97_{Case C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments)}

Ltd and Imperial Tobacco Ltd [2002] ECR I-11543 para 60.

98_Ibid.

99_{Case C-350/92, Spain v. Council, [1995] ECR I-1985, para 35; Case C-376/98, Germany v. Parliament and}

Council (Tobacco Advertising I), [2000] ECR, 8419, para 86; Case C-210/03, Swedish Match, [2004] ECR

11893, para 30; Case C-380/03, Germany v. Parliament and Council (Tobacco Advertising II), [2006] ECR I-11573, para 38.

100_{Martin Brenncke, comment of C-58/08 Vodafone Ltd and Others v Secretary of State for Business, Enterprise}

and Regulatory Reform [2010] ECR 2010 I-04999, (2010) 47 Common Law Market Review 1793-1814.

101_{To lower retail charges.}

102_{Case C-58/08 Vodafone Ltd and Others v Secretary of State for Business, Enterprise and Regulatory Reform}

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markets because of different levels of protection103_{. Finally, the fact that obstacles to trade} could emerge from such divergence will have to be assessed by the Court in the case of a judicial review. However, if national laws have different exigence or sanctions regarding durability of goods, this would be likely to affect the trade between Member States as it will create disparities regarding the treatment of certain goods between the Member States depending on the State where the product is sold.

Furthermore, there is common thinking that the Court of Justice does not engage in a substantive review of the criterion of likelihood and is therefore, reluctant to decide that a measure should have not been based on Article 114 TFEU104_{. The Vodafone Case is} interesting for planned obsolescence as the Roaming Regulation had as the main goal the protection of the consumers. It showed that because of a broad margin of discretion let to the EU legislature, a preventive approximation measure could be adopted such as one regarding planned obsolescence.

However, even if it is possible to regulate planned obsolescence relying on Article 114 TFEU, this legal basis is a residual one105_{, which means that it can only be used if no other, more} specific, legal basis is available. This is why, when regulating planned obsolescence, European institutions should look first for another legal basis available which will be done next.

1.2.2. The consumer protection legal basis

1.2.2.1. The creation of a new legislative act through Article 169 TFEU

As exposed before, planned obsolescence has a big impact on consumers. Article 169 TFEU defines the objectives of the consumer policy: ‘In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to

103_{Norbert Reich, Hans-W. Micklitz, Peter Rott and Klaus Tonner, European Consumer Law (2}nd_{ed., 2014,}

Intersentia) 33.

104_{Above n 95 p 1801.}