Lansky

The planned premature failure of a product (obsolescence) is a phenomenon often encountered in the manufacture of products – and could even be assumed to be a systemic approach. However, the installation of “predetermined breaking points” does not necessarily have legal consequences for the manufacturer in Austria – at least as long as the products fail outside the warranty and guarantee periods. A repair is often not worthwhile for the consumer, if it is even possible at all. The Austrian legislator would have done well to extend the warranty periods and also provide for regulations concerning planned obsolescence within the framework of the warranty law reform, on the basis of which a new warranty law will apply to sales contracts from 1 January 2022. Notwithstanding this, the underlying problem must be viewed in a more differentiated manner. 

Although a longer product life can avoid the need for early replacement, the question arises whether and in which cases concrete legal regulation is actually necessary. In some areas, the market is beginning to regulate itself. For example, while a manufacturer’s warranty was a rarity in the automotive industry just a few years ago, warranties are now becoming more and more commonplace. In other areas – such as so-called “white goods” – durability that significantly exceeds the previous warranty period is already standard, regardless of the legal regulations. It is clear that differentiated legal regulation is not easy in this context and it is therefore understandable that the Austrian legislator has decided to wait for future EU directives and regulations. However, it may not make sense to wait for European developments. 

After all, increasing the lifespan of products not only promotes consumer protection, but above all creates sustainability and assumes ecological responsibility. In times of climate change, however, pursuing ecological interests naturally prohibits playing for time. It would be desirable if the EU states – and thus also Austria – would proactively and courageously assume a pioneering role in legislation and become a “role model” for a Europe-wide regulation of trade in goods that promotes environmental and climate protection. 

Possible consequences of planned obsolescence could include criminal prosecution – but the Austrian legislator has decided not to use this lever and has so far not provided for a ban on obsolescence sanctioned by civil or criminal law. A direct claim by the buyer against the manufacturer or importer – e.g. via a warranty obligation – would also have exerted pressure on the manufacturers, but in Austria the buyer still has to bring his warranty claim to the seller. In principle, a direct claim against the manufacturer only exists if the manufacturer has adopted voluntary product warranty. 

Many different ideas are being discussed as possible strategies for achieving the optimal lifespan and resulting sustainability of a product. Not only must material-specific obsolescence be countered, but also the consumer’s psychological desire – for example, a desire for a new model develops (or is created by the advertising industry) or repair seems too expensive compared to a new purchase. For the digital world, the time-limited interaction of hardware and software is also an essential point – here, the desire for sustainability is at odds with social interest in further technical development. 

Solutions are possible: clearly defined product standards and requirements for materials and other parameters can decisively extend service life. Likewise, information obligations regarding the availability of spare parts and repair services can create incentives to repair items instead of replacing them. Simplification of repair options and the provision of take-back and recovery obligations for old appliances aim at the same goal. The manufacturer’s obligation to specify a guaranteed service life can create new purchase incentives for sustainable products, and tax incentives for repairs (reduced VAT, deductibility of repair costs) are also conceivable. In addition, clear legal framework conditions can force manufacturers to create sustainable products instead of cheap products – e.g. through a ban on obsolescence, an extension of warranty periods or mandatory manufacturer guarantees. 

Many of the possible strategies can of course only be sensibly regulated at supra-regional, preferably European level. Nevertheless, many paths are also viable for member states independent of EU directives and EU regulations. Unfortunately, the Austrian legislator has not taken such paths in the case of warranty law reform and has so far limited itself to the minimum in the implementation of the Directive. 

Nevertheless, it remains to be hoped that regulations at the European level will not be too long in coming and that the banishment of planned obsolescence will be a further step on the path towards sustainable products. 

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