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  • Publication
    Das „Recht auf Reparatur“
    (Leykam, 2020-11-26)
    The Right to Repair (R2R) movement has been gaining momentum and has been spreading all around the globe. While there seems to be considerable interest of consumers to be able to repair or to commission repair of their products (Eurobarometer 2014), there are substantial legal and non-legal barriers.In this paper three main legal obstacles to the establishment of a real right to repair, meaning an en-forceable claim against the producer of a non-digital product, are considered; most importantly, the Sale of Goods Directive. It does not prioritise repair in relation to the other warranty remedies. In addition, there is a missing link between the requirements set out (for certain groups of goods) in the implementing regula-tions of the EU Eco-Design Directive and the requirements of conformity as defined in the Sale of Goods Directive. Consequently, although there is a legal obligation for producers to provide spare parts, manuals and services for a certain amount of time, there is no corresponding right for the consumer to benefit di-rectly from these obligations.Second, the Waste Framework Directive and its transposition into national law both define a waste hierarchy that put waste prevention on top. At the same time, their definition of waste is rather broad and qualifies things as waste that could easily be (re-)used after (and sometimes even before) repair. Hence, another legal obstacle remains comes with the waste definition and – based on that – waste qualification.Finally, intellectual property law safeguards a producer’s rights by protecting trademarks, copyrights, patents and design rights. Most repairs require disassembly and spare parts and so they bear a potential of trade secrets being disclosed or intellectual property rights infringed. These risks are probably the most deterring factor for a universal right to repair. There are only limited remedies in intellectual property law in favour of consumers or independent repairers.If there were a right of repair embedded in consumer law – so the argument developed – the sheer number of claims from consumers against producers would pave the way to changes in the other relevant fields of law.
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