EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, 30.3.2022  
SWD(2022) 81 final  
 
COMMISSION STAFF WORKING DOCUMENT  
Subsidiarity Grid  
Accompanying the document  
Proposal for a Regulation of the European Parliament and of the Council  
establishing a framework for setting ecodesign requirements for sustainable products 
and repealing Directive 2009/125/EC  
{COM(2022)  142 final}  - {SEC(2022)  165 final}  - {SWD(2022)  82 final}  -
 {SWD(2022)  83 final}   
 
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 Subsidiarity Grid  
1. Can the Union act? What is the legal basis and competence of the Unions’ intended action?  
1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative?  
The proposal is based on Article 114 of the Treaty on the Functioning of the European Union (TFEU), 
which is to be used for measures aiming at the establishment and functioning of the inte rnal market.  
The new legislative proposal has at its centre a revision of the Ecodesign Directive1, which currently 
covers energy -related products only . It establishes a framework for setting sustainability 
requirements that products (with the exception of  food, feed and medicines) have to comply with in 
order to be placed on the market  
 
1.2 Is  the Union  competence represented by this Treaty article exclusive, shared or supporting in 
nature?  
In th is case of internal market  legislation , the Union’s compete nce is shared.  
 
 
2. Subsidiarity Principle: Why should the EU act?  
2.1 Does the proposal fulfil the procedural requirements of Protocol No. 22: 
- Has there been a wide consultation before proposing the act?  YES 
- Is there a detailed statement with qualitative and,  where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level?  YES, see 
Impact assessment report.  
- In line with Better Regulation guidelines, a number of public and targeted consultation 
exercises  took place:   
o An Inception Impact Assessment  on SPI was published on 14 September 2020 and 
the period to provide feedback closed on 16 November 2020.3 A total of 193 
responses were submitted through the online Better Regulation Portal;  
o An Open Public Consultation  was accessible to the public for 12 weeks fro m 17 
March 2021 to 9 June 2021 and received 626 responses  via the online tool;  
o Between April and July 2021, a series of  dedicated workshops  was organised on 
different topics related to SPI and wi dely attended by participants from various  
stakeholder groups, including business associations and  compan ies, academics, 
NGOs, environmental and so cial organisations, as well as Member State 
representatives ; 
o A survey of small and medium -sized enterprises (SME s) was held from 26 April until 
15 June , receiving 332 responses;  
o A second targeted SME survey  was held from 20 October to 4 November 2021. This 
built on the first SME survey outlined above, and drew primarily on the knowledge 
and expertise of organisat ions representing SMEs ( Enterprise Europe Network  
                                                           
1 Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a 
framework for the setting  of ecodesign requirements for energy -related product  
2 https://eur -lex.europa.eu/legal -content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN   
3 https://ec.europa.eu/info/law/better -regulation/have -your -say/initiatives/12567 -Sustainable -products -
initiative_en   
 
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 contact points and other SME representative bodies). This survey received 35 replies;   
o Tailored questionnaires  were submitted to selected stakeholder representative s 
from 20 May 2021 to 9 June 2021;  
o A number of stakeholder interviews  were conducted with selected stakeholder 
representatives.  
 
Further details on these activities  out are outlined in the impact assessment (Annex 2).  
 
- The explanatory memorandum and the impact assessment (chapter 3) contain a section on 
the principle of subsidiarity, see replies to question 2.2 below.  
2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 
Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity?  
 
With regard to the necessity test, or the question of whether the objectives can be sufficiently 
achieved by action taken by Member States alone, in order to ensure a harmonised and well -
functi oning internal market for sustainable products across all Member States, and therefore a level 
playing field for economic operators, it is essential to put in place a common set of rules, which 
include product requirements and the obligation to provide rel iable information to end -users. 
Member States alone would not have the possibility to enact appropriate measures without creating 
divergences in the requirements for economic operators, and obstacles to the free movement of 
products, regulatory burden and excessive costs for economic operators. In addition, Member States 
alone would inevitably develop tools that diverge  from one another , and render consumer choices 
more complicated. If Member States act individually (as they have already begun to do - see A nnex 7 
of the impact assessment, Table on ‘National Level Initiatives’) there would be a high risk of ending 
up with numerous different and competing approaches across Member States , based on different 
methods and rules , especially  for products traded across the internal market . This in turn  would 
creat e market fragmentation  and distortions of competition , and likely lead to uneven awareness 
and lack of information on the environmental performance of products across the EU , as well as  
additional costs for companies trading cross -border.    
With regard to the effectiveness test, or the reasons why action at Union level is more effective than 
action at national level, only EU action can set harmonised common product requirements and 
information requirements on sustainability , ensuring the free movement of goods and allowing 
consumers access to  pertinent and reliable information about sustainab ility characteristics and 
circular features of products in whatever Member State they are pur chased. There is clear added 
value in setting common requirements at EU level, as this will ensure a harmonised and well -
functioning internal market across all Member States and, therefore, a level playing field for 
economic operators . With harmonised performance  and information requirements set at EU level, 
sustainable products and circular practices will be promoted in all Member States, creating a larger 
and more efficient market and hence greater incentives for the industry to develop them.  Finally, the  
size of  the internal market provides a critical mass enabling the EU to promote product sustainability 
and to influence product design and value chain management worldwide.  
2.3 Based on the answers to the questions below, can the objectives of the proposed a ction be 
achieved sufficiently b y the Member States acting alone  (necessity for EU action)?  
The need to increase the sustainability of products placed on the internal market has an inherent 
cross border dimension . National action would inevitably lead to fragmentation of the internal 
market and to a related distortion of competition creating additional costs and burdens for economic 
 
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 operators and damaging consumers . Member States cannot enact appropriate measures wit hout 
creating separate and divergent requirements for products and economic operators.  The proposal 
address es unsustainable production and consumption  of products placed on the EU market – both of 
which  have the same underlying causes . Member States are no t overstretched in achieving the 
objectives of the proposal.  
(a) Are there significant/appreciable transnational/cross -border aspects to the problems being 
tackled? Have these been quantified?  
The main problem that the proposal tackle s is that  products’ consumption and production are not 
sustainable and not adequately addressed by existing EU product and internal market rules, leading 
to increasingly divergent national rules on the sustainability of products . This problem is therefore 
typically of a cross -border nature .  
(b) Would national action or the absence of the EU level action conflict with core objectives of 
the Treaty4 or significantly damage the interests of other Member States?  
Member States acting individually could only try to address the issue on their respective territor ies 
by setting requirements for products and economic operators, and as such creating obstacles to the 
free movement of goods, divergences with other Member States , market fragmentation and 
distortions of competition among economic  operators active across borders.  
(c) To what extent do Member States have the ability or possibility to enact appropriate 
measures?  
Member States would not be able to enact appropriate and effective measures because of the scale 
of the problem and of its underlying causes.  
(d) How does the problem and its causes (e.g. negative externalities, spill -over effects) vary 
across the national, regional and local levels of the EU?  
The problem of unsustainable consumption and production and its causes, from the marke t failures 
due to product related externalities not being sufficiently internalised to the behavioural biases and 
regulatory failures  that underpin them , do not vary across the EU and are widespread.  
(e) Is the problem widespread across the EU or limited to a  few Member States?  
Yes, see above.  
(f) Are Member States overstretched in achieving the objectives of the planned measure?  
No. The proposal foresees a framework for setting requirements at Union level via delegated acts of 
the Commission. Member States ’ primary responsibility will be market surveillance.  
(g) How do the views/preferred courses of action of national, regional and local authorities 
differ across the EU?  
The stakeholder consultation has not identified significant differences in views across count ries or 
across levels of authorities.  
2.4 Based on the answer to the questions below, can the objectives of the proposed action be 
better achieved at Union level by reason of scale or effects of that action (EU added value)?  
                                                           
4 https://europa.eu/european -union/about -eu/eu -in-brief_en   
 
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 There is clear added value in setting common requirements at EU level, to ensure a well -functioning 
internal market and a level playing field for businesses. With harmonised performance  and 
information  requirements set at EU level, sustainable products and  circular practices and business 
models will be promoted in all Member States, creating a larger and more efficient market.  The 
proposed measures will not go beyond what is necessary to provide regulatory certainty while 
ensuring a high level of protection  of health and of the environment. The actions are best achieved at 
Union level by reason of effectiveness and economies of scale . 
 
(a) Are there clear benefits from EU level action?  
Harmonised minimum and information  requirements set at EU level will enabl e the good functioning 
internal market. At the same time,  sustainable products and circular practices  will be promoted in all 
Member States, creating a larger and more efficient market and hence greater incentives for the 
industry to develop them.  
 
(b) Are th ere economies of scale? Can the objectives be met more efficiently at EU level (larger 
benefits per unit cost)? Will the functioning of the internal market be improved?  
There is clear added value in setting common requirements at EU level, as this will en sure a 
harmonised and a better functioning internal market across all Member States and, therefore, a level 
playing field for businesses  (as discussed in the impact assessment) . The internal market size 
provides a critical mass enabling econom ies of scale for producers complying with the requirements 
applicable to the products covered by the delegated acts. Moreover, with the proposed action the 
EU will promote product sustainability and influence product design and value chain management 
worldwide.  
(c) What are the benefits  in replacing different national policies and rules with a more 
homogenous policy approach?  
The benefits are a functioning internal market and  undistorted competition that will benefit both 
economic operators and consumers.    
(d) Do the benefits of EU -level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)?  
Yes, the size of the internal market allows for effic ient requirements that enable promoting the EU 
model worldwide.  
(e) Will there be improved legal clarity for those having to implement the legislation?  
The proposal takes the opportunity to improve conformity assessment and market surveillance , 
building on g eneral instruments and on specific upgrades and adjustments of the Ecodesign 
framework that the proposal is meant to repeal.  
3.  Proportionality: How the EU should act  
3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 
Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with th e 
principle of proportionality?  
 
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 The assessment of the principle of proportionality is made in the Impact Assessment and included in 
the explanatory memorandum . 
 
The proposal does not go beyond what is necessary for providing a regulatory framework for the  
development of sustainability requirements for the broadest possible range of products.  
 
The Ecodesign Directive approach of implementing measures being based on impact assessments 
carried out in line with the European Commission’s Better Regulation guide lines will continue. As 
such, there will be an analysis of the economic, social and environmental impacts of different options 
for each set of requirements. This will allow for proportionality to be maintained.  
 
The proposal is designed as a flexible fram ework , which will be a chief means of ensuring 
proportionality. This means that  no requirements , criteria or targets will be applied unless they are 
justified on the basis of an assessment  of their impacts . To ensure proportionality, each individual 
requir ement will need to be justified for any product group , before being applied.  Defining 
requirements, criteria or targets at the level of well -defined product groups will allow for the careful 
assessment of impacts. It will also allow to assess  the added va lue and proportionality of setting 
requirements, targets or criteria depending on the inherent characteristics of the relevant products, 
of their manufacturing processes and of their market situation.  
3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives?  
The impact assessment explicitly considers the effectiveness of the proposal, and whether it is 
appropriate to meet the objectives . The proposed measures will not go beyond what is necessary to 
provide regulatory certainty while ensuring a high level of protection of health and of the 
environment.  This will be best achieved by means of a Regulation allowing sustainability 
requirements to be set based on a common approach for all operators in the EU. Requirements will 
be set by means of delegated acts only af ter specific impact assessments, in order  to ensure 
proportionality and effectiveness with respect to the selected groups of products.  As the Regulation 
will replace the Ecodesign Directive, it will strengthen the delivery of internal market objectives.   
 
(a) Is the initiative limited to those asp ects that Member States cannot achieve satisfactorily on 
their own, and where the Union can do better?  
The proposal is limited to provid ing a framework for setting product sustainability requirements at 
EU level with a view to improv ing the functioning of  the internal market and to improv ing the 
sustainability of the production and consumption of products  placed on the EU market . 
(b) Is the form of Union action (choice of instrument) justified, as simple as possible, and 
coherent with the satisfactory achieve ment of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co -legislation, etc.)?  
The choice of a Regulation , replacing a Directive,  allows  for a uniform approach to setting product 
sustainability requirements for all relevant operators, thus providing the necessary legal certainty 
and enforcement possibility of a fully integrated market across the Union . A Regulation also ensures 
that the obligations are implemented at the same time and in the same way in all 27 Member States.  
(c) Does the Union action leave as much scope for national decision as possible while achieving 
 
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 satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument o r approach?)  
The setting of sustainability requirements will be considered in  impact assessment (s) in line with the 
Commission’s Better regulation guidelines , including consi deration by the Regulatory Scrutiny Board) , 
before the adoption of the relevant delegated act (s), thus allowing to assess the specific need and 
extension of EU action in relation to the specific product group(s).  
(d) Does the initiative create financial or ad ministrative cost for the Union, national 
governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved?  
Due to the framework architecture foreseen for this initiative , it is dif ficult to identify overall future 
costs with precision . Most significant costs are likely to be incurred only in a second stage, after 
concrete rules for products or groups of products have been laid down.  Once this takes place, costs 
for economic actors i nvolved in manufacturing the products in question are likely to increase, with 
some costs passed on to consumers. Nevertheless, experience under the current Ecodesign Directive 
has shown that increased costs are more than offset over the long term by finan cial savings for 
consumers. Clear potential for benefits from product life extension and production process 
improvements are also expected.  
 
For businesses operating across EU borders, harmonised requirements at EU level are likely to reduce 
overall compliance costs, given that they will replace various existing or planned requirements at 
national level. There will also be direct benefits to the competitiveness of businesses, including from 
a shift of activity from the processing of primary towards se condary raw materials and from 
production of products to maintenance, reuse, refurbishment, repair and second -hand sales, which is 
expected to benefit SMEs significantly because they are more active in these sectors.  
All product rules to be laid down in a second stage will be underpinned by impact assessments and 
consultation processes that examine the costs and benefits to ensure proportionality.  
(e) While respecting the Union law, have special circumstances applying in individual Member 
States been taken int o account?  
There are no special circumstances applying in individual Member States.