Re-thinking producer responsibility for a sustainable circular economy from extended producer responsibility to pre-market producer responsibility

The transition to a sustainable Circular Economy (CE) requires moving away from linear production processes and the throwaway mentality. Waste needs to be prevented and the consumption of new products must decline. In particular, this involves extending product lifetime (through maintenance and repair) and supporting second-hand trading (reuse). Such a transformation of consumption patterns requires a fundamental change notably in business models. The role of the law is to enable the change. For a long time, the objective of retaining the primary value of products has been linked to waste prevention, which is the main priority of the waste hierarchy as laid out in the EU Waste Framework Directive 2008/98/EC. However, waste law appears somewhat ill-suited to address these issues. The incentives provided by the extended producer responsibility (EPR) scheme are limited when it comes to promoting upstream design changes. In line with what Lindhqvist, the father of EPR in Europe, originally had in mind, the responsibility of producers should cover products’ entire life cycle, not just their end-of-life. This article explores the current tensions between EU waste law and the objectives of the CE, and calls for incorporating a pre-market producer responsibility (PPR) within a legal framework for products in order to limit market access to durable, reparable and reusable products.