(1)

Article 25(1) of Regulation (EU) 2024/1781 prohibits the destruction by an economic operator of certain unsold consumer products from 19 July 2026.

(2)

In order to allow economic operators to destroy unsold consumer products where this is justified and appropriate for any of the reasons listed in Article 25(5) of Regulation (EU) 2024/1781, it is necessary to set out derogations from the prohibition of destruction of unsold consumer products listed in Annex VII to that Regulation.

(3)

Depending on the circumstances justifying destruction, economic operators might still be able to remanufacture, refurbish or donate the relevant unsold consumer products as well as to discard them for the purpose of preparing them for reuse, in accordance with the definition of ‘destruction’ set out in Article 2(34) of Regulation (EU) 2024/1781. Where a derogation applies, the destruction of unsold consumer products is to be carried out in accordance with the priority order of the waste hierarchy as set out in Article 4 of Directive 2008/98/EC of the European Parliament and of the Council (2), prioritising recycling over other recovery, including energy recovery, and disposal operations.

(4)

The aim of Regulation (EU) 2024/1781 is to improve the environmental sustainability of products. However, the prohibition set out in Article 25(1) of that Regulation should not prevent or limit economic operators from taking the necessary action to ensure a high level of safety and to destroy unsold consumer products when they pose a danger to health or safety and when no other mitigation measures are possible.

(5)

Consumer products might also be non-compliant with Union or national law for reasons other than those related to consumer health or safety, for example for ethical reasons, such as forced labour. In such cases, destruction might be required by that law or might be an appropriate mitigation measure and should therefore be allowed.

(6)

The protection of intellectual property rights is fundamental to maintain the integrity of the internal market and to incentivise the development and commercialisation of new products and technologies. In cases where unsold consumer products are found to infringe intellectual property rights, destruction may be necessary to prevent further infringement.

(7)

Intellectual property rights may also be linked to valid and enforceable contractual obligations such as licences restricting the sale or distribution of a product beyond a specific date. Once such a date has passed, destruction may be necessary to ensure the effective exercise of those rights.

(8)

Some consumer products may be unsuitable for reuse or remanufacturing due to the technical unfeasibility of removing or rendering permanently inaccessible labels, logos, or product design characteristics. Such removal may be necessary to ensure respect of intellectual property rights. Consumer products may also be unsuitable for reuse or remanufacturing because they are inappropriate within a particular cultural, ethical or societal context. Such products, while compliant with Union or national law, might be controversial and generate moral debate, raise ethical concerns, or contradict prevailing socially accepted norms of respect, equality or human dignity. In particular, but not exclusively, this includes products that perpetuate discrimination, exploit stereotypes, or rely on inflammatory language or images. In such cases, destruction should be possible where it is the most effective and proportionate solution to address such technical challenges. Technical unfeasibility refers to situations where existing technologies, established technical knowledge, or the expertise available to the economic operator are insufficient or unreliable to carry out effective remedies.

(9)

It should be possible to destroy damaged products, where they have been physically damaged, contaminated, or have deteriorated, during activities and processes taking place throughout the supply chain. This would include during handling, storage, transport, retailing, or return by consumers where such products were returned on the basis of the right of withdrawal provided by Directive 2011/83/EU of the European Parliament and of the Council (3) or, where applicable, during a longer withdrawal period provided by the trader, provided that repair is not technically feasible or cost-effective.

(10)

It should be possible to destroy products which are unfit for their intended purpose due to design or manufacturing defects that render the product non-functional. A product should be considered non-functional where it lacks essential properties reasonably expected by consumers or where the defect undermines the core purpose of the product. Destruction should only be allowed where such products cannot be repaired.

(11)

Economic operators might donate unsold consumer products, for the purpose of using or reusing them, to suitable donation partners, including social economy entities that, by statute or habitual practice, accept donations of the relevant consumer products, prioritising local donations to minimise environmental impacts and to foster the creation of sustainable, participatory and inclusive business models and quality jobs in the Union. Where such an offer has been made, either directly to at least three suitable social economy entities within the Union or on an easily accessible page of the website of the economic operator for a minimum period of eight weeks, and the products have not been accepted for donation, they could be destroyed. Social economy entities that receive unsold consumer products as a donation should be allowed to destroy these products if they cannot find recipients for them, unless such products are subject to the requirements of separate collection and preparation for reuse of discarded unsold textiles set out under Directive 2008/98/EC or equivalent requirements for other product groups.

(12)

To prevent unintended negative consequences for circular business models that involve the sale of products after their preparation for reuse, it should be possible to destroy unsold consumer products that were made available on the market following operations carried out by waste treatment operators in accordance with Directive 2008/98/EC. In accordance with that Directive, for waste to cease to be waste, a market or demand must exist for the recovered product. In the absence of such a market, it should therefore be possible to destroy the product.

(13)

To prevent abuse, to ensure that derogations applied by economic operators are justified so that destruction remains a measure of last resort, there should be adequate verification mechanisms that are based, where relevant, on existing product quality assurance practices. To enable competent national authorities to carry out appropriate checks, economic operators should for five years retain all relevant documentation used by the economic operators for verification. When multiple products are affected by the same circumstances justifying the destruction, documentation might be made collectively for all such products.

(14)

Economic operators that are aware of circumstances determining the applicability of any of the derogations set out in this Regulation to unsold products, should provide a statement informing about the applicable derogation to the recipient waste treatment operator to support more effective sorting processes, to improve reuse and recycling rates and reduce unnecessary waste treatment costs,

(1)

‘social economy entity’ means a social economy entity as defined in Article 3(4i) of Directive 2008/98/EC;

(2)

‘cost-effective’ means the cost of repairing or refurbishing a product not outweighing the total cost of destruction of that product and of materials, manufacturing, packaging, transport, stocking and any other administrative or logistical expenses of replacing that same product.

(a)

the product is a dangerous product within the meaning of Regulation (EU) 2023/988 of the European Parliament and of the Council (4);

(b)

the product is unfit for purpose by reason that it is non-compliant with Union or national law, for reasons other than those referred to in point (a) and destruction is required by law or is the appropriate and proportionate corrective action;

(c)

it is found that the product infringes intellectual property rights by a final judicial decision, a decision resulting from an alternative dispute resolution (ADR) process, a notification by a right holder, competent authority or an entity authorised to act on behalf of a right holder or an internal investigation carried out by the economic operator, provided that the economic operator can duly substantiate the infringement;

(d)

the product subject to a valid and enforceable licence or similar contractual requirement protecting intellectual property rights, according to which the sale, distribution or any other form of transfer of the product after a specified period constitutes an infringement of those intellectual property rights, and that specified period has expired, provided that the economic operator can duly substantiate the infringement and can demonstrate that destruction is the appropriate and proportionate corrective action;

(e)

the product is unsuitable for preparing for reuse or remanufacturing because it is technically unfeasible either to remove or render permanently inaccessible labels, logos or recognisable product design or other characteristics that are:

(f)

the product can reasonably be considered unacceptable for consumer use due to damage, including physical damage, deterioration or contamination, including hygiene issues, whether it is caused by consumers or occurs during the handling of the product by the economic operators or other actors involved in the supply chain, transport, retail or storage, and repair and refurbishment are not technically feasible or cost-effective;

(g)

the product is unfit for the purpose for which it was intended due to design or manufacturing defects for which repair is not technically feasible;

(h)

only where none of the circumstances referred to in points (a) to (g) are applicable, the product was offered for donation either directly to at least three suitable social economy entities located within the Union or on an easily accessible page of the website of the economic operator, for a period of at least eight weeks, and the product has not been accepted for donation;

(i)

the product was received by a social economy entity located within the Union as a donation, but no recipient could be found for it;

(j)

the product was made available on the market after being prepared for reuse by a waste treatment operator, but no recipient could be found for it.

(a)

for a dangerous product referred to in Article 2, point (a), either of the following:

(b)

for a product referred to in Article 2, point (b), a self-assessment statement that indicates the type of the non-compliance and the applicable Union or national law;

(c)

in the case referred to in Article 2, point (c), the final judicial decision, ADR decision or notification referred to in that point, or documentation of an internal investigation substantiating the infringement;

(d)

in the case referred to in Article 2, point (d), a licence, contract or agreement that has been concluded with the rightsholder and that explicitly specifies the restrictions on the distribution or other forms of transfer of the product after a specified period, accompanied by a justification that destruction is appropriate and proportionate;

(e)

in the case referred to in Article 2, point (e), an inspection report or supporting documentation demonstrating that technical options for preparing the product for reuse or remanufacturing have been assessed and found to be unfeasible, including, as appropriate, visual evidence, technical analysis or expert opinions substantiating the technical unfeasibility of removing or permanently rendering inaccessible labels, logos or recognisable characteristics that are protected by intellectual property rights or that are considered inappropriate;

(f)

in the case of a damaged product referred to in Article 2, point (f), or of a product unfit for purpose referred to in point (g) of that Article, either of the following documentation:

(g)

in the case referred to in Article 2, point (h), evidence of the offer for donation;

(h)

in the case referred to in Article 2, point (i), a declaration attesting that the product was received as a donation and that no recipient could be found for it;

(i)

in the case referred to in Article 2, point (j), documentation demonstrating that the product was received from a waste treatment operator and that no recipient could be found for it.