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
Date: 2022-03-30
Institutions: Directorate-General for Environment, European Commission
Subjects: circular economy, ecodesign, energy efficiency, environmental impact, free movement of goods, maintenance, product life, single market, sustainable product, waste recycling

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}  
 
 
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 internal 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 this case of internal market legislation, the Union’s competence 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  from  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  widely  attended  by  participants  from  various 
stakeholder  groups,  including  business  associations  and  companies,  academics, 
NGOs,  environmental  and  social  organisations,  as  well  as  Member  State 
representatives; 

o  A survey of small and medium-sized enterprises (SMEs) 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  organisations  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  

1 

 
 
 
 
 
                                                           
contact points and other SME representative bodies). This survey received 35 replies;  
o  Tailored  questionnaires  were  submitted  to  selected  stakeholder  representatives 

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-
functioning 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  reliable  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 Annex 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 
create  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  sustainability  characteristics  and 
circular  features  of  products  in  whatever  Member  State  they  are  purchased.  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 action be 

achieved sufficiently by 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 

2 

 
 
 
 
 
operators  and  damaging  consumers.  Member  States  cannot  enact  appropriate  measures  without 
creating  separate  and  divergent  requirements  for  products  and  economic  operators.  The  proposal 
addresses unsustainable production and consumption of products placed on the EU market – both of 
which  have  the  same  underlying  causes.  Member  States  are  not  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  tackles  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 territories 
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 market 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  countries  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  

3 

 
 
                                                           
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 enable 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 there 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  ensure  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 economies 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 efficient 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  general  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 the 
principle of proportionality? 

4 

 
 
 
 
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  guidelines  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  framework,  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 
requirement  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  value  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  after  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 aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

The proposal is limited to providing  a framework for setting product sustainability requirements  at 
EU  level  with  a  view  to  improving  the  functioning  of  the  internal  market  and  to  improving  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 achievement 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 

5 

 
 
 
 
 
 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The setting of sustainability requirements will be considered in  impact assessment(s) in line with the 
Commission’s Better regulation guidelines, including consideration 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 administrative 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 difficult 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 involved 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  financial  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  secondary  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 into account? 

There are no special circumstances applying in individual Member States. 

6