Repair is a central element of a transition to a circular economy. The EU has adopted a new directive on the right to repair, as part of its commitments following the EU Green Deal and the new Circular Economy Action Plan. Norway also mentions repair quite prominently in its National Strategy for a Green, Circular Economy from 2021 and in its Action Plan for a Circular Economy from 2024.
The focus on repair as part of a circular economy is well founded; repair can extend the life of a product, and it can reduce waste generation and contribute to cutting greenhouse emissions. However, existing legislation is insufficient to increase the uptake of repair. Indeed, there are still significant barriers to be overcome. Against this background, I investigated in my Master thesis whether the duty of care in article 3 of the Norwegian Product Control Act, can provide a basis for facilitating repair of products in Norway. My aim was to see if we can speed up the process to promote repair activities by making use of existing legislation.
In this blog post, I highlight the main findings of my thesis and reflect on what these findings can mean for the promotion of repair as part of Norway’s transition to a circular economy.
A duty to care
A duty of care imposes an obligation on those to whom it is addressed to act with care. Because of this characteristic, a duty of care is what we call a legal standard or general clause. This means that its content – what we mean by 'acting with due care' in a particular situation at a particular time – can change as society evolves.
The concept of duty of care is quite common in Norwegian law. One of the laws where such a legal standard is found is the Norwegian Product Control Act, which was adopted in 1976. The purpose of the Act, based in article 1, is among other things to ‘prevent products from causing environmental disturbance’. This purpose combined with the fact that the duty of care in article 3 involves a duty to ‘exercise due care and take reasonable steps to prevent or limit such effects’, suggests that obligations under the duty of care may include repair obligations.
A duty to repair?
This duty of care had not previously been addressed in relation to repair. I therefore analysed its content and scope to find out whether repair can be included.
My research clarified that the duty of care includes both a duty of knowledge and a duty to act. The duty of knowledge means that producers are obliged to have up-to-date knowledge of the risk of their own products having a negative impact on the environment and how this can be prevented – e.g. by enabling repair. The duty to act, on the other hand, means that producers must refrain from actions that are contrary to the purpose of the law and may, after further assessment, be obliged to take active steps to prevent negative effects of their own product – e.g. to organize for repair. Together, these two duties form the basis for an overall assessment of whether the producer have acted in accordance, or in breach, with the duty of care. The legal provision can be interpreted to mean that producers may be obliged to facilitate the repair of their products. Arguably, producers can therefore be held liable for not facilitating repairs.
However, there are still several key aspects of the duty of care that remain unresolved, such as whether producers can be expected to act prior to damage occurring and whether cumulative effect of production and consumption can be included in the overall assessment. It was therefore not possible for me to say how far the duty to repair might extend. Norwegian authorities have a role here to clarify the potential of the duty of care and realise the potential of this near 50-year-old legislation to promote repair. There are several ways in which the authorities can do this.
In my thesis I suggest that the Norwegian government could for example establish a repair fund similar to the one adopted in France in 2020 on the basis of the ‘Anti-waste and Circular Economy Law’. Such government intervention can be an effective way of specifying the requirements of producers with regard to repair on the basis of the duty of care.
Old law, new opportunities
I put forward that the duty of care can and should be used as a basis for promoting repair as a means to extend product lifetime. My aim with the thesis was to empower Norwegian authorities and to show that they have tools to pursue their stated ambition of being a leading country in the transition to a circular economy.
My findings can also hold other lessons. I don't think that the duty of care in my case study is unique. There's good reason to believe that other existing laws contain provisions that have been forgotten or simply not used. If we are to achieve the goals of a sustainable, circular economy, we may need to reuse more than just products; we may also need to utilise existing legislation in the most efficient way possible.
