Product passport legislation and the growing role of secondary legislation

The European Commission published its proposed EU battery regulation in December 2020. After almost two years of discussion, the EU institutions are now in the final stages of negotiating the details. It could be adopted in December 2022, with entry into force to follow in 2023.

The new EU battery regulation is a top priority for all EU institutions. It defines the regulatory framework for the ambitions of the European Commission and member states to establish a full EV batteries value chain in Europe. It is therefore remarkable that – despite all EU institutions committing to find compromises swiftly – it will have taken over two years for the new regulation to be adopted and enter into force.

Complex and ambitious

The drafting of the regulation took longer than anticipated because of the complexity of both the proposal and the EV battery value chain as well as the desire to regulate all steps from cradle to gate –  from mining over manufacturing, and use, to the end-of-life management. Furthermore, covering a wide range of dimensions (technical, environmental, economic, and social) has turned out to be highly ambitious.

The other aspect to consider is the conceptual idea behind the new battery regulation. It is seen as a blueprint for future EU product legislation, establishing a digital product passport with all its complexities and covering all steps of the product life cycle. Getting things right from the start is therefore of critical importance for all EU institutions and requires intensive consultation.

The product passport is a key element in the new battery regulation. It will provide customers with information, such as a battery’s carbon footprint. The idea of this digital passport is that in the future it will include more sustainability and performance-related information to help customers make informed purchasing decisions. Collecting and aggregating information for such a complex value chain as the one for EV batteries will be a major challenge in the years to come.

The product passport is a key element in the new battery regulation

Getting things right from the start is of critical importance for EU institutions and requires intensive consultation

A blueprint for future product regulation

The proposed EU Ecodesign for Sustainable Products Regulation (ESPR) published at the end of March 2022 follows the concept of the blueprint established in the proposed batteries regulation. It aims at making sustainable products the norm in the EU.

The initiative establishes an EU framework to assess products throughout their life. It covers a wider range of dimensions and focuses on sustainability aspects such as durability, energy and resource efficiency, reparability, and recyclability. It favors recycled materials, promoting the concept of a circular economy.

With its revision of the EU Ecodesign rules and the extension to non-energy related products, the ESPR assesses possibilities to improve the product sustainability performance at the design stage. It also foresees the development of digital product passports accompanying the products in scope – textiles, electronics, chemicals, and steel.

Technical issues and secondary legislation

Secondary legislation where technical aspects and key requirements will be decided on in more detail will need to be adopted by the Commission in the future and will play a critical role. As in the case of battery regulation, we can expect a digital product passport to accompany products in the future to help customers take sustainability aspects into account in their decision-making.

The approach of the European Commission to define technical issues in various pieces of secondary legislation is not new and is common in EU regulation. Technical matters like methods to calculate targets such as recycling efficiencies require input from technical experts. What is new is the great extent to which secondary legislation will be needed to set and define important aspects and requirements of the battery  regulation – a trend that we also expect to continue in future product legislation.

Separating the technical from the political

It has to be acknowledged that deciding on such complex matters between the EU institutions in the context of a regulatory process might lead to serious delays.

© sentidos humanos/Unsplash
© sentidos humanos/Unsplash

Separating the political aspects from the technical matters is therefore an approach that in general should be supported by stakeholders as it ensures both efficiency and effectiveness of the regulatory process.

On the other hand, there is a risk that decisions on topics with both a technical and a political dimension might be pushed into the area of secondary legislation, potentially resulting in decisions taken without involving all relevant stakeholder groups sufficiently. It also will result in a continuous process over the coming years where stakeholders are required to follow the development of many implementing or delegated acts.

Finding the balance

The digital product passports that we can expect in the future to accompany articles will contain a significant amount of data and information related to their sustainability performance. The development of such digital passports, the methods, and approaches to calculate targets, and how the information is displayed will require intense technical debates.

The battery regulation also presents an opportunity to agree on methodologies that can be applied to future product initiatives.  Independent of where concrete targets and numbers are decided upon: they should be based on technical feasibility, stakeholder consultations, and impact assessments, taking into account environmental and socio-economic implications.

The European Commission will therefore have to find the right balance in the ongoing discussion around the sustainable products initiative and Ecodesign rules, as well as for future product legislation. Defining technical issues in secondary legislation and ensuring that stakeholders remain involved and have the possibility to contribute and share their expertise and concerns should be built into the process.

This article was first published in November 2022 on and is part of Euractiv's special report Product passports: The new trend in EU policymaking