The fundamental idea that “the polluter pays” is a guiding principle of environment law that has inspired European and national legislative change for decades. Its application to our substantive law has been carried out, among other ways, through the increased responsibility of producers (IRP), a concept that attempts to transfer to manufacturers the responsibility of managing the waste that their products generate.
This principle is protected by article 8 of the Directive 2008/98/EC of the European Parliament and Council, of the 19th of November 2008 and empowers member states to adopt measures that improve the reuse, prevention, recycling and increase in value of residue. These measures incentivise the development, production and commercialisation of multiple-use products, ones that are technically long-lasting and that, once converted into residue, allow for their disposal in an environmentally-friendly way. The essential point here is that manufacturers bear the costs of residue treatment generated by their products in such a way that these costs don’t have an effect on consumers, administration or directly on the environment.
When the Contaminated Land and Residue for a Circular Economy Act 7/2022 of the 8th of April came into force on the 10th of April 2022, a new regulatory framework dictating the increased responsibility of producers was established. Producers are obliged to be aware of and comply with this responsibility. This Act, which entails the transposition of the (EU) Directive 2018-851 of the European Parliament and Council of the 30th of May 2018 and repeals and substitutes Act 22/2011, of the 28th of July, of Contaminated Land and Residue, incorporates two new significant changes in relation to its previous version:
In the first instance, the definition of “a producer” has been widened, so that it includes not only natural or legal persons who partake in the development, manufacturing, processing, treatment, selling or importing of products in a professional way, but also those who:
(i) “fill” products
(ii) sell products through distance contracts, and
(iii) are e-commerce platforms, in cases where the seller that is established abroad is not inscribed in the registers of IRP nor complies with the requirements set by the rules of IRP.
In the second instance, Article 37 of the LRCA determines the requirements which may apply to producers. In this way, producers will be able to see an increase in their responsibility and be obliged, among other matters:
(i) to design products and product components with a lower environmental impact;
(ii) to accept the return of reusable products, the handing in of residue generated after the use of the product, to assume the subsequent management of residue and the financial responsibility of these activities;
(iii) to offer information that is readily available to the public on the nature of the product in terms of durability, ability to be reused, and how easily it can be repaired and recycled;
(iv) to use materials originating from residue in product manufacturing;
(v) to increase the warrantee period of products;
(vi) to comply with the necessary requirements to guarantee the right to repair of the consumer; or
(vii) to provide information on the characteristics of the product that allow for the evaluation of the possible practice of premature obsolescence.
Just as the repealed Act 22/2011 established, the concrete requirements of producers will be determined by the Royal Decree of the Council of Ministers, bearing in mind technical and economic viability of these requirements, the set of impacts to both the environment and human health, and respecting the necessity to guarantee the correct functioning of the internal market.
In this way, although the LRCA might seem markedly ambitious in its objectives, we will still have to wait and see to discover the actual core and scope of these specific obligations that producers will be made to meet.
Joan Lluís Rubio
Vilá Abogados
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14th of April 2022
