German sales law to become more sustainable? Implementing the European “right to repair”

The European Directive

The German sales law landscape is set for further reforms. Like in 2022, the amendments are driven by European legislation: EU Directive (EU) 2024/1799 on the “right to repair” supplements the Sale of Goods Directive (EU) 2019/771, which already brought about extensive changes to the German Civil Code (Bürgerliches Gesetzbuch) in 2022 and builds on the Ecodesign Regulation (EU) 2024/1781. In 2024, the EU set out binding requirements regarding environmentally sound design of products in this Regulation. The new Directive builds on this and aims to make an additional contribution to environmental and consumer protection as part of the European Green Deal. The intention is to make repairs more attractive than buying new products and to extend the life cycles of products.

National implementation ongoing in Germany

The deadline for implementing the Right to Repair Directive is 31 July 2026. Whether it can be met remains to be seen. At any rate, the German government has already adopted a draft bill which is now going through the parliamentary process (information in German on the legislative process).

Key aspects of the new right to repair

The draft bill is intended to supplement warranty law and insert a new part on the right to repair into the German Civil Code. The planned amendments are significant, in some respects going beyond the scope of the Directive:

• Core element right to repair: the new rules provide for a statutory obligation on manufacturers to repair products for consumers for the products’ usual life cycle. This obligation is to apply even outside existing contractual relationships with consumers and cannot be contractually excluded. Where manufacturers are not established in the EU, claims will be directed against their agents, importers or distributors. However, the obligations initially apply only to certain product groups for which the Ecodesign Regulation already contains requirements. Currently, these mainly include household appliances, but also displays, welding equipment, servers and data storage products, mobile phones and goods incorporating light means of transport batteries. These product groups are being continuously expanded by the European Commission in line with the Ecodesign Regulation. The dynamic nature of this reference has clear consequences for manufacturers: monitoring!
• Repairs must be carried out for free or for a reasonable price within a reasonable period and must return the goods to a condition where they fulfil their intended purpose.
• According to the wording of the draft act, the right to repair applies only if the consumer is not entitled to warranty rights under sales law, e.g. after the statutory limitation periods have expired. At the same time, an incentive for repairs is to be created in connection with warranties: if a customer opts for a repair instead of a replacement, the standard limitation period is to be extended from two years to three. And if consumers pay a fee for the repair, they will be entitled to additional warranty rights based on the principles for contracts for work and services.
• Manufacturers are also obliged to publish information on repair services and indicative prices, and to offer spare parts and tools for repairing their goods at reasonable prices. Using certain hardware or software techniques that impede repairs is also to be prohibited. Besides this, a standardised repair form is to be introduced across Europe, designed to make it easier for consumers to compare repair quotes. This approach of enhancing the after-sales sector is similar to the specific provisions on access to repair and maintenance information, parts, tools and software in the automotive sector (see Noerr Insight Right of access to repair and maintenance information under the Type Approval Regulation and Data Act).

Lack of repairability as a material defect

For general distribution, such as the German automotive industry, the planned amendment that will have the most immediate impact is that repairability is to become a “usual feature” of a product within the meaning of the second sentence of section 434(3) of the German Civil Code. This applies to all products, not just the product groups mentioned above.

If a product is not repairable in a manner that buyers may reasonably expect, this may in itself constitute a material defect triggering warranty rights.

Repairability as a feature of defect-free goods can only be contractually excluded between businesses.

Outlook: potentially far-reaching development for industry

Companies will need to monitor the following aspects in relation to the draft bill in the future:

• what impact the requirements regarding repairability (i.e. lack of repairability as a material defect) will have on their product development and design;
• whether repairability as a sustainability factor will also be significant in the competition for the best products; and
• how the after-sales sector will evolve as a result of the planned changes and whether it will be strengthened.

In any case, it will be essential for manufacturers and retailers to review existing processes and product strategies in view of the planned legal amendments. The exact nature of these changes will become clear as the legislative process progresses. The parliamentary saying applies here: “No bill leaves the Bundestag exactly as it was introduced.”