The inadequate approach of Directive (EU) 2019/771 towards the circular economy
| DOI | 10.1177/1023263X211051827 |
| Date | 01 February 2022 |
| Published date | 01 February 2022 |
| Subject Matter | Articles |
The inadequate approach of
Directive (EU) 2019/771 towards
the circular economy
Mónica García Goldar *
Abstract
The current social context (overconsumption, planned obsolescence, etc.) will be presented in
this paper to illustrate the need for the European Consumer Law to be more aligned with sustain-
ability objectives. To this end, the relatively recent Directive (EU) 2019/771 on certain aspects
concerning contracts for the sale of goods will be analysed to conclude that it does not reflect
any of the guidelines contained in the two Action Plans for the circular economy (2015 and
2020). Despite the fact that this Directive (EU) 2019/771 aims at full harmonization, a certain mar-
gin of manoeuvre is (fortunately) granted in favour of the Member States. Finally, a reference to
the possibility of the market moving towards circularity (as there is now a greater demand for
sustainable products) will also be made.
Keywords
Over-consumerism, obsolescence, circular economy, guarantees, products, sustainability
1. Introduction: Social and regulatory context
The new Circular Economy Action Plan for a cleaner and more competitive Europe (2020) begins
with a devastating sentence: ‘There is only one planet Earth, yet by 2050, the world will be consum-
ing as if there were three’. It is difficult to determine at what exact moment we became a so-called
‘consumer society’, a process that Bauman describes as a shift from a society of producers to a
society of consumers.
1
Moreover, this change was not only about the (increased) quantity of pro-
ducts or services consumed, but also about the (poorer) quality of what we consume. After the
*
University of Santiago de Compostela, Santiago de Compostela, Spain
Corresponding author:
Mónica García Goldar, Facultad de Derecho, Campus Vida, s/n, Santiago de Compostela, 15782, Spain.
Email: monica.garcia@usc.es
1. Z. Bauman, Liquid Life (Paidós Ibérica, 2005), p. 112.
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(1) 9–24
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DOI: 10.1177/1023263X211051827
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Industrial Revolution and until the beginning of the 20th century, manufacturers used to produce
objects to satisfy our needs. Objects whose inherent quality was durability –the more durable a
product was over time, the more consumers valued it. Nowadays, the market generates needs
that are only satisfied with certain (less durable) products.
2
This new hierarchy of values, inherited
from the so-called ‘consumerist syndrome’, has depreciated durability and overvalued transience.
3
This is the main problem: consumption has been transformed into consumerism. The two con-
cepts have nothing to do with each other: consumption is the action aimed at satisfying the imme-
diate needs of human beings and consumerism is the consumption of products that are not necessary
and can be quickly replaced by others.
4
If this only had (positive) repercussions on economic
growth, there would be no reason for alarm. The problem is that exacerbated consumerism degrades
the environment.
5
Among the possible causes that could explain this social change is the introduc-
tion of certain dishonest commercial practices such as planned obsolescence. Planned obsolescence
is a rather self-descriptive term: it is the loss of functionality of a product that is intentionally intro-
duced in the design, so that the lifespan of that product is considerably reduced. The moment of its
emergence dates back to the beginning of the 20th century, when a real estate agent proposed its
introduction to end the crisis of the Great Depression. In 1954 it reached its greatest popularity,
when Brooks Stevens gave a lecture on the new mass production
6
. Its purpose is eminently eco-
nomic and consists of ensuring that consumers come again and again to the market to acquire
similar products that provide the same or similar functionality. Companies manage, through this
singular stimulus, to increase goods’replacement rate and the profits of all industries.
7
The sociologist Packard distinguished up to three types of obsolescence in The Waste Makers
(1960). Firstly, obsolescence of function takes place when an existing product becomes outmoded
because of the introduction of a new product that performs the function better. Secondly, obsoles-
cence of quality occurs when a product breaks down or wears out at a given time, usually not too
distant. Finally, with the obsolescence of desirability, a product that is still sound in terms of quality
of performance becomes worn out in our minds because a styling or other change makes it seem less
desirable.
Nowadays, and due to the digitalization process in which our society is immersed, two new
types of obsolescence have been distinguished. The first one is incompatibility obsolescence,
that occurs, for example, when software no longer works once an operating system is updated.
The second one is indirect obsolescence, which derives from the impossibility of repairing a
product.
8
2. A. N. Martínez and A. M. Porcelli, ‘Un difícil camino en pos del consumo sustentable: el dilemaentre la obsolescencia
programada, la tecnología y el ambiente’,18Lex: Revista de la Facultad de Derecho y Ciencia Política de la
Universidad Alas Peruanas (2016), p. 336.
3. Z. Bauman, Liquid Life, p. 113.
4. L. E. Ribeiro Freyesleben and R. Maas dos Anjos, ‘Circularidad en tiempos obsoletos’, in J. Melgarejo Moreno (ed.),
Congreso Nacional del Agua Orihuela: Innovación y Sostenibilidad (Universitat d’Alacant, 2018), p. 812.
5. A. N. Martínez and A. M. Porcelli, 18 Lex: Revista de la Facultad de Derecho y Ciencia Política de la Universidad Alas
Peruanas (2016), p. 337.
6. Ibid., p. 342.
7. J. A. Soto Pineda, ‘Reflexiones acerca de las posibles incompatibilidades de la obsolescencia programada con el sistema
de defensa de los consumidores’,6Actualidad civil (2015), p. 3.
8. T. Libaert and J. P. Haber, Towards more sustainable consumption: industrial product lifetimes and restoring trust through con-
sumer information, 2013, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013IE1904.
10 Maastricht Journal of European and Comparative Law 29(1)
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