Last week, big news for the Right to Repair movement came from the United States. President Joe Biden issued an Executive Order asking the US Federal Trade Commission to draft new rules to address “some of the most pressing competition problems across our economy”.
While the executive order’s main focus seemed to be on agriculture and other industries such as car and home appliances, it also calls out a range of anti-competitive practices affecting the technology sector including repair restrictions put in place by mobile phone manufacturers and others.
While this is big news for repair, it remains an Executive Order (meaning not an actual regulation yet) and the President has not ordered the agencies under his direction to implement his ideas but only shared recommendations and suggestions.
Nevertheless, the use of competition law to address the issue is not without significance. On our side of the ocean, the European Commission has so far preferred to focus on rules to make products repairable by design and to inform consumers rather than address competitiveness and monopolies.
Yet, there are plenty of examples that show how implementing a “Right to Repair” without looking into competition law would seriously hinder progress and even create more waste. Here’s what Europe needs to tackle to improve competitiveness in the repair sector, and show real leadership, now that the US President is taking these issues seriously.
1. Broaden the definition of “professional repairers”
In March 2021, the first ever repair laws for household appliances came into force in Europe. The requirements, notably access to spare parts and repair manuals, mostly benefit “professional repairers” in contrast to “end users” who continue to have limited to sometimes no access.
Yet, the definition of professional repairer is left open to national countries to implement through registries, or by manufacturers themselves. We are concerned that national registries are unlikely to be established and manufacturers will determine who they grant access to.
While the new measures aimed at making the repair market for electronics more open, the issue presented by the definition of professional repairer could have the opposite effect and make it more constrained. In order to have a real Right to Repair, European authorities need to address this in future regulations and give access to spare parts and repair information to everyone, including educational activities such as repair cafés and consumers.
2. Ban the prevention of access to online sales avenues for repair actors
A further barrier to repair is limited access to repair service providers. Google has been criticized by independent repairers for banning independent repairers from advertising through its search engine since 2019. In the USA, NGO US PIRG stated that some repair shops reported drops in revenues of as much as 70 percent after Google removed their ads and in Europe, campaign member Runder Tisch Reparatur argued that Google was abusing its dominance on the market.
3. Prevent the use of software, hardware and trademark/copyright law to make independent repairs challenging or illegal
On the 3rd June 2020 an independent smartphone repairer lost his case against Apple in Norway’s Supreme Court. Henrik Huseby was accused of importing counterfeit iPhone screens to repair phones. Huseby argued he used “refurbished” screens and that Apple does not make refurbished or original spare parts available to independent repairers, so he had no alternative. The technicalities of the case came down to trademark infringement, as many Apple components are marked with a very small “Apple” logo invisible to consumers.
Regardless of the outcome, the case provides another example of how competition in after sales markets for electronics can be stifled. We need an open market, with transparent access to third party and reused spare parts, if we want to make repair as affordable and accessible as possible.
4. Prevent the use of software locks and parts pairing
Software locks and parts pairing are increasingly common on consumer electronics and prevent repair by independent actors without access to OEM software and diagnostic tools.
Here is how it works: some parts have a unique serial number, which is paired to an individual unit of a device using software. If any of these parts need replacing during a repair, they will not be accepted unless remotely paired to the device again via software by the manufacturer.
By mainstreaming these practices, manufacturers could require that only new genuine spare parts sold by them could be used to complete a repair. This would effectively mean controlling the cost and type of repairs that can be performed.
Read more about this growing threat here.
5. Replace voluntary approaches by ambitious regulation
Finally, the use of “Voluntary Agreements” to allow manufacturers to self-regulate on specific products is problematic. The recently endorsed agreement on game consoles and the one on printers, currently analysed by the European Commission are both very weak on repair and have not yielded the tangible results expected.
Voluntary approaches clearly do not work. We need ambitious regulations now.
It’s clear there’s a heavy dominance of electronics manufacturers on the repair market. This is a clear threat to any efforts to extend the lifetime of products and e-waste prevention and therefore to the objectives of the Green Deal.
This is why we’re calling on the European Commission’s Competition authorities to explore what role competition and more specifically antitrust can play in creating a more open and fair market for repair activities.