“Planned obsolescence” is the production of goods with uneconomically short useful lives so that custumers will have to make repeat purchases.
This phenomenon causes damages for consumers, forced to bear the costs of repairs and the continued new purchase of these goods. The planned obsolescence also represents a danger to the environment, both from the point of view of the non-rational use of natural resources and from the excessive production of waste.
The Motion for a European Parliament resolution “on a longer lifetime for products: benefits for consumers and companies” (2016/2272) refers to a series of legislative and soft law acts of the European Institutions dedicated to the issues of sustainable development, environmental protection and a prudent and rational use of natural resources.
Among the goals set is the adoption of measures against planned obsolescence: the Commission is invited to propose better consumer legal protection and “appropriate dissuasive measures” for producers.
The research aims to verify whether the use of "penalties" can be considered among such dissuasive measures.
The way of criminalization was followed by the French legislature, that in 2016 introduced a new crime in the Consumer Code (Article 441-2: “The practice of planned obsolescence, which is defined by the use of techniques by which the person responsible for placing a product on the market aims to deliberately reduce its service life to increase the replacement rate, is prohibited”).
The use of criminal law undoubtedly has advantages, both in terms of the severity of the repressive response and in terms of general prevention.
At the same time, this is a problematic option, if we take into account the general principles ruling criminal law. In particular:
- Principle of strict legality (It’s difficult to provide a precise definition of “planned obsolescence”; in any case there would be considerable difficulties in judicial assessment)
- Principle of offensiveness (What are the interests offended by planned obsolescence? Is their criminal protection necessary? Can they be protected with other legal measures?)
The French experience is an interesting test to assess the legitimacy and the effectiveness of the use of criminal law. The impact of the 2016 reform would appear to be rather limited. Till now there is only two judicial procedure (against EPSON and APPLE). The real cultural effects of the change in the mentality are controversial. and in any case they must not be overestimated.
It’s possible that the fear of reputational damage is a stronger deterrent for companies; but this is not sufficient.
We need to test a model of regulation that integrates soft law instruments, commercial law actions (class action) and administrative controls (imposition – if it’s possible - a minumum useful life for products or giving a minimum period of availability for spare parts).
Against the planned obsoescence, the possible use of criminal law will have a residual role. The intervention of criminal law should be limited only to cases of failure of other measures, according to “extrema ratio” principle.
In this perspective, it’s possible to apply the crimes currently provided for consumer protection, such as fraud. The introduction of a crime of "planned obsolescence", however, could offer a more complete protection of the various offended interests (not only those of consumers, but also the environment)
In any case, effective law enforcement can only pass from legal harmonization to a supranational level.
9d. Law and sustainability
