Is the EU's new Circular Economy Action Plan up to the task?
By Eléonore Maitre-Ekern, 21 April 2020
We live in very uncertain times. Of course, this is very strongly felt by all of us as the covid-19 pandemic claims victims around the world and forces many countries in lock-down. However, the uncertainty existed before and will continue long after the current coronavirus crisis is over. The ecological crisis and increasing social tensions require extensive transformation of the economy and the society to put us on a more sustainable path. Fundamental changes are needed in the way we finance the economy, conduct business, and produce and consume products. The SMART project has developed reform proposals in these three areas, including on how the circular economy can become sustainable.
Rethinking circular economy
The Commission released on 11 March a new Circular Economy Action Plan, as announced in the EU Green Deal in February 2020. The difference between the Circular Economy Action Plan of 2020 compared to the one adopted just five years ago is striking. It illustrates the increased recognition of both the root problems and the measures that must be put in place to achieve what the Action Plan denotes ‘a transition to a sustainable economic system’. The new plan makes clear that the main priorities of the future EU’s product framework policy are to be product durability, reusability and reparability, thus moving away from the focus on efficiency that had prevailed so far. Moreover, the Action Plan proposes several strong mandatory measures where voluntary measures dominated the last CE strategy. These notably include restriction of single-use products and ban on destruction of unsold products, which give a clear signal to producers that overproduction of low-quality product is no longer to be the norm.
The need for precaution
The precautionary principle should be central in a sustainable circular economy. As we are learning from the current health crisis, in face of uncertainty, precaution is really the only way to avoid irreparable damage from occurring – or at the very least to minimize their consequences. And is there any greater uncertainty than the risk of ecological collapse that we are confronted with? In terms of product policy, precaution means notably placing the burden on the producer or seller of proving that their products are not unsustainable upon entering the market, rather than dealing with the consequences of the mass consumption of short-lived, non-reparable, hazardous products. In that light, the absence of any explicit references to precaution is the main surprise and disappointment on reading the new Action Plan. However, the Commission’s pledge to establish product sustainability principles should provide the opportunity to anchor production and consumption policies in a strong precautionary approach, thus giving Europe a true chance at a sustainable future.
Reforming product policy and law
Overall, the new Action Plan resonates well with the SMART draft reform proposals for products that the SMART scholars developed at the same time, though the EU’s plan lacks a strong stand on the content of tomorrow’s product regulation. A sustainable product policy legislative initiative, as announced by the Commission, is undoubtedly necessary, but it remains unclear what that will look like. Merely widening the Ecodesign framework, which establishes eco-design requirements for selected energy-related product groups, will not suffice. Rather, clear rules are needed concerning in particular market entry, due diligence, and access to repair. The SMART proposals give input, notably in the form of specific legislative proposals, on how we can achieve sustainable production and consumption. It is our view that the EU has to adopt a framework directive on products establishing common principles and aiming at extending product lifetime while claiming back from the overly broad scope of waste law.
The devastating health emergency coupled with the deep economic crisis that we are living in are not only underlining the need for policymakers to be courageous. Indeed, the current situation gives them a unique opportunity to adopt measures that will pave the way for a truly sustainable future for all of us today and for our descendants. An exit from the covid-19 crisis that would focus on economic recovery at the expense of the planetary boundaries and social wellbeing for all humans will not be acceptable; the solutions are there, and we are ready to contribute.
This blog post is written by Eléonore Maitre-Ekern, Postdoctor at Department of Private Law, and a member of the SMART Project.
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