Enforcement and Liability: Navigating the "Teeth" of Articles 68 and 69
For Legal Counsel and CEOs, the risk of the ESPR is found in its enforcement structure. Articles 68 and 69 mandate that penalties must be "effective, proportionate, and dissuasive". Importantly, the ESPR is not just an administrative burden; it introduces significant civil liability risks for manufacturers and importers.
Non-compliance can lead to products being blocked by customs, hefty national fines, and exclusion from public procurement—which represents 14% of the EU's total GDP.
The Enforcement Framework
Market Surveillance Checks: National authorities will conduct physical and laboratory tests. If your product doesn't match its DPP data, it is non-compliant.
Fines Tied to Benefit: Penalties are designed to at least offset the economic benefit gained through non-compliance.
Collective Redress: Consumers and qualified entities (like NGOs) can bring representative actions for damages caused by non-compliant or misleading product claims.
Procurement Bans: Non-compliant firms can be barred from bidding on government contracts for a set period.
Compliance Risk: Before vs. After ESPR
Risk Factor
Before (Directives)
After (Regulation 2024/1781)
Market Surveillance
Fragmented; inconsistent national checks.
Harmonized; centralized EU registry for instant verification.
Legal Standing
Hard to prove individual consumer damage.
"Qualified entities" can bring collective lawsuits for sustainability failures.
Procurement
Sustainability was a "bonus".
Mandatory minimum sustainability requirements for all public tenders.
Penalty Cap
Fixed maximums in some states (e.g., €50k).
Flexible fines designed to exceed the profit made by breaking the rules.
Strategic Advice: How to Prepare
Conduct a Gap Analysis: Compare your top 5 products against the 20 parameters in ESPR Annex I. Where do you fail on durability or recycled content?.
Verify Your Importers: If you manufacture outside the EU, your EU-based importer is legally responsible for your DPP data. They will require audited proof from you before placing orders.
Update Liability Insurance: Review your coverage for product recalls and collective lawsuits, specifically regarding environmental performance and sustainability claims.
The cost of non-compliance is no longer just a "cost of doing business." It is a threat to market access and organizational survival.
To secure your business against regulatory risk, contact our legal team at info@dpp-link.com