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The ESPR, the EU’s Ecodesign for Sustainable Products Regulation, will introduce a digital product passport per product group, but under the ESPR no product group requires one yet. What applies now: since 19 July 2026, large enterprises may not destroy unsold clothing and footwear in the EU. Selling through a Dutch importer or fulfilment centre? Agree roles and liability now.
Part of our overview of EU product law for companies selling into the Netherlands.
Who does the ESPR apply to?
The ESPR, Regulation (EU) 2024/1781, applies to physical goods placed on the EU market, including components and intermediate products. Excluded are, among others, food, feed, medicinal products and living plants and animals (Article 1(2)).
The Regulation applies directly (Article 80) to every economic operator in the chain (Article 2(46)). Most product obligations apply only once a delegated act covers the product group.
| Role | Core obligation under a delegated act | Article |
|---|---|---|
| Manufacturer: markets the product under its own name or trademark | design to the requirements, passport with back-up copy, conformity assessment, technical documentation, CE marking | 2(42), 27 |
| Authorised representative: in the EU, written mandate | optional; documents for 10 years, answers authorities within 15 days | 2(43), 28 |
| Importer: in the EU, places a third-country product on the EU market | checks conformity assessment, documentation, passport and CE marking beforehand | 2(44), 29 |
| Distributor | due care; checks CE marking, passport link and documents | 2(45), 30 |
| Fulfilment service provider | handling must not jeopardise compliance | 33 |
What changes for a manufacturer outside the EU?
For a manufacturer outside the EU, the ESPR matters today through unsold stock and returns held in the EU (Article 25). Once a delegated act sets requirements, its EU partners can also become liable to consumers (Article 76).
An importer or distributor becomes the manufacturer if it markets a covered product under its own name or trademark, or modifies it so that compliance is affected (Article 34).
A business outside the EU often thinks the ESPR only matters once a passport obligation arrives for its product. But the destruction ban already applies to stock and returns held in the EU, and once requirements apply to your product group, liability towards consumers also reaches your European partners, who will want something in return for that in the contract.
When does the ESPR apply?
The ESPR has been in force since July 2024 and applies in stages. The ban on destroying unsold clothing and footwear has applied since 19 July 2026; requirements and the passport follow per product group (Articles 4(4), 25(1)).
| Event | Date | Source |
|---|---|---|
| Adoption | 13 June 2024 | title |
| Publication | 28 June 2024 | OJ L, 2024/1781 |
| Entry into force | twentieth day after publication; old Ecodesign Directive 2009/125/EC repealed with effect from 18 July 2024 | Art. 80, 79(1) |
| Commission sets up the passport registry | by 19 July 2026 | Art. 13(1) |
| Registry rules adopted | 16 July 2026 | Implementing Regulation (EU) 2026/1778 |
| Destruction ban, clothing and footwear | 19 July 2026; not for micro and small enterprises | Art. 25(1), Annex VII |
| Derogations from the ban | apply from 19 July 2026 | Delegated Regulation (EU) 2026/296, Art. 6 |
| Format for the annual disclosure | applies from 2 March 2027 | Implementing Regulation (EU) 2026/2, Art. 7 |
| Ban and disclosure for medium-sized enterprises | 19 July 2030 | Art. 24(1), 25(1) |
| Requirements and passport per product group | not yet adopted; a delegated act applies as a rule no earlier than 18 months after its entry into force, earlier only in duly justified cases | Art. 4(4) |
The Commission’s working plan 2025–2030 gives indicative years for adoption, not for application: iron and steel 2026; textiles and apparel, tyres and aluminium 2027; furniture 2028; mattresses 2029.
What does the destruction ban on unsold clothing and footwear mean?
Since 19 July 2026, the ESPR prohibits the destruction of unsold clothing, clothing accessories and footwear listed in Annex VII. The ban does not apply to micro and small enterprises; medium-sized enterprises follow from 19 July 2030 (Article 25(1)).
An unsold consumer product includes surplus stock and consumer returns under the right of withdrawal (Article 2(37)). Destruction means intentionally damaging or discarding a product as waste, unless solely to have it prepared for reuse, including refurbishment or remanufacturing (Article 2(34)). An operator not itself subject to the ban may not destroy products supplied to it to circumvent the ban (Article 25(2)).
Delegated Regulation (EU) 2026/296 allows destruction in ten situations, provided the documentation required by its Article 3 can be presented (Article 2). They include:
- (a) a dangerous product within the meaning of the General Product Safety Regulation;
- (c) an intellectual property infringement that the operator can duly demonstrate;
- (f) damage, deterioration or contamination that makes the product reasonably unacceptable for consumer use, where repair and refurbishment are not technically feasible or cost-effective;
- (h) only where none of points (a) to (g) applies: the product was offered for donation for at least eight weeks, either directly to at least three suitable social economy entities in the EU or on an easily accessible page of your website, and was not accepted.
You keep the supporting documents for five years after destruction and provide them electronically to the competent authorities within 30 days of a request (Article 3). Operators that discard unsold consumer products also disclose each year on their website the number and weight, the reasons and the derogation used; micro and small enterprises are exempt, medium-sized ones follow from 19 July 2030 (Article 24(1)). From 2 March 2027, Implementing Regulation (EU) 2026/2 sets the format.
What will the digital product passport require?
The digital product passport is a set of product data accessible through a data carrier, such as a barcode. It becomes mandatory only once a delegated act for your product group requires it (Articles 2(28), 9(1)).
That act will specify the data, model, batch or item level, access rights and how long the passport stays available (Article 9(2)). Once a delegated act covers your product, manufacturers and importers must ensure a passport is available, with a back-up copy at a digital product passport service provider (Articles 27(1)(c), 29(2)(c)).
The operator placing such a product on the market will upload its unique identifiers to the EU registry and receive a unique registration identifier, which is no proof of compliance (Article 13(4)–(5)). Customs will ask for it once the registry is operational (Article 15).
The arrangements in the supply chain come first. Under the ESPR, no product group is yet subject to a passport obligation; it will come per product group, and you will then, as a rule, have at least a year and a half. What already matters is the destruction ban, and the question of who in your chain is manufacturer, importer or fulfilment partner. Those roles determine who creates the passport, who enters it in the registry and who is liable to a consumer. Record that in your contracts now. In the meantime, collect the data for the passport; that is mostly work for your technical and purchasing teams.
How does the ESPR work in the Netherlands?
In the Netherlands, according to its annual plan for 2026, the Inspectie Leefomgeving en Transport (ILT) will supervise the ESPR, with the ban on destroying unsold clothing within its first priority, the textile chain.
We have not yet found a Dutch regulation designating the authority and penalties; the ILT’s role follows from its annual plan for 2026. Member States must be able to impose at least fines and time-limited exclusion from public procurement procedures (Article 74(3)).
For a non-compliant covered product that presents a risk, the Regulation empowers market surveillance authorities to require corrective action and, failing that, to prohibit or restrict, withdraw or recall it (Article 69). Against a Dutch authority’s decision, bezwaar (objection) and beroep (appeal) are generally available.
Unsold stock in your Dutch warehouse, or an importer asking for an indemnity? I can check your options and record the roles: contact me as your product law partner in the Netherlands.
What do you do when your Dutch warehouse asks what to do with unsold stock and returns?
When your Dutch warehouse asks about unsold clothing, footwear or returns, check whether the ban applies to you, whether Annex VII lists the goods and which derogation fits (Article 25).
Throw nothing away until it is clear what is allowed. I start with three questions:
- does your company fall under the ban, as a large enterprise, or is a large enterprise supplying this stock to circumvent the ban;
- are the goods clothing or footwear on the list;
- is there a derogation that fits?
Then you set the route: selling through another channel, refurbishing or having the goods prepared for reuse, or donating. Recycling counts as destruction under the Regulation and is only possible where a derogation applies. For every batch that is destroyed after all, you record which derogation applies and you keep the documents for five years. If you set this up now, you will also have the figures ready for the annual disclosure.
What should your contract with a Dutch importer or fulfilment centre cover?
Your contract should settle who carries which ESPR role and who pays if a consumer claims. Once a delegated act sets requirements for your product, Article 76 makes liable for a consumer’s damage from non-compliance:
- the manufacturer;
- if the manufacturer is not established in the Union, and without prejudice to its own liability, the importer or the authorised representative;
- if the importer is not established in the Union or there is no authorised representative, the fulfilment service provider.
Other remedies remain available; see also the EU Product Liability Directive.
Who is liable, and who pays in the end. Once requirements apply to your product group, the Regulation makes the manufacturer liable towards consumers and, if the manufacturer is outside the EU, also the importer or the authorised representative, and in certain cases the fulfilment partner. Those parties will therefore ask for an indemnity; arrange that now, not once the requirements are there. Agree who creates and maintains the passport, who uploads it to the registry, who keeps the technical documentation and what happens to unsold stock and returns. And note: if your partner sells the product under its own brand, or modifies it, it becomes the manufacturer itself.
An authorised representative is optional: a manufacturer “may, by a written mandate, appoint” one. The Article 27(1) obligations, including the passport, and the drawing up of the technical documentation cannot be part of that mandate (Article 28(1)). It covers at least keeping documents for 10 years and supplying documentation within 15 days of a reasoned request (Article 28(2)). See also the role of an EU authorised representative in the Netherlands.
Under the ESPR, that is a choice, not an obligation. An authorised representative can help: it keeps the documentation available and answers the authority within the fifteen-day period. Otherwise, once requirements apply, liability towards consumers can also reach your fulfilment partner, which then sets its own conditions. I advise making the choice deliberately. With a regular Dutch importer, that importer carries the importer’s liability; if you sell through fulfilment without an importer, an authorised representative with a clear mandate is often the calmest solution.
What can you arrange yourself?
Much ESPR preparation you can do in-house: mapping stock and return flows, setting up resale and donation routes, and collecting material and origin data for a future passport.
When do you need a Dutch lawyer for the ESPR?
You need a Dutch lawyer when you decide on destroying unsold stock, agree roles and liability with a Dutch importer, distributor or fulfilment centre, appoint an authorised representative, or face questions from a Dutch authority.
| Your situation | What is at stake | Why a lawyer | What MAAK Advocaten does in the first days |
|---|---|---|---|
| Unsold stock or returns in a Dutch warehouse | Art. 25(1)–(2), 24; Delegated Regulation 2026/296, Art. 2–3 | whether a derogation applies and the documents suffice is a legal test; anti-circumvention also reaches small partners | test derogations, set up documentation, agree terms with the warehouse |
| Contract with a Dutch importer, distributor or fulfilment centre | Art. 29, 33, 34, 76 | roles, consumer liability and passport management belong in the contract; once a delegated act applies, Article 76 can also make the EU importer, authorised representative or fulfilment service provider liable | review and draft the contract, roles, indemnity, passport and registry terms |
| Appointing an authorised representative | Art. 28 | written mandate with at least the tasks of Article 28(2); 15-day deadline | draft and define the mandate |
| Questions or a measure from a Dutch authority | Art. 69, 74; ILT annual plan 2026 | zienswijze (written view), objection and appeal are legal work | order the documents, contact the authority, prepare the zienswijze |
Example: unsold trainers in a Dutch fulfilment centre
Under the ESPR, footwear returned under the right of withdrawal is an unsold consumer product, which a large brand may not destroy without a derogation (Articles 2(37), 25(1)).
Suppose an American sportswear brand, a large enterprise, sells to EU consumers through a Dutch fulfilment centre without an EU importer. Returned trainers build up; the centre, a small business, asks whether it may scrap them.
It may not destroy goods supplied to circumvent the ban (Article 25(2)). The brand looks for resale, refurbishment or donation first; destruction after an unaccepted donation offer (point (h)) requires that none of points (a) to (g) applies. The centre also wants an indemnity: if a delegated act later covers these products, Article 76(c) can make it liable to consumers.
This is a hypothetical example for illustration, not a description of a MAAK Advocaten case.
How does MAAK Advocaten work on ESPR matters?
MAAK Advocaten N.V., a law firm in Amsterdam, advises non-EU manufacturers and brand owners on the ESPR, in negotiations, before authorities and in court.
In the first days we map your role, your product group and whether the destruction ban applies; then we review your contracts with Dutch partners and your destruction policy. In disputes we act at first instance and on appeal.
When a Dutch authority asks for documentation or announces a measure: calmly and completely. First establish the deadline and read exactly what is being asked. Then we supply, in good order, what there is: which products, what role you have, what happened to unsold stock and which derogation you used, with the documents attached. If the authority announces a measure, we first submit our zienswijze. If discussion does not settle it, bezwaar and beroep follow. A well-kept file is your strongest argument at this stage.
Frequently asked questions about the ESPR
Is the digital product passport already mandatory?
No product group yet requires a digital product passport under the ESPR: as at 31 October 2026, no delegated act with product group requirements has been adopted. As a rule, each applies no earlier than 18 months after its entry into force; in duly justified cases an earlier date may be set (Article 4(4)).
Does a non-EU manufacturer need an authorised representative under the ESPR?
An authorised representative is optional under the ESPR (Article 28(1)). Once a delegated act sets requirements for the product, the fulfilment service provider is liable for a consumer’s damage from non-compliance if the importer is not established in the Union or there is no authorised representative (Article 76(c)).
Who supervises the ESPR in the Netherlands?
According to its annual plan for 2026, the Inspectie Leefomgeving en Transport (ILT) will supervise the ESPR, with the ban on destroying unsold clothing as a priority. We have not yet found a Dutch regulation designating the authority and penalties.
When should a non-EU brand involve a Dutch lawyer about the ESPR?
A non-EU brand should involve a Dutch lawyer when unsold stock in a Dutch warehouse may be destroyed, when a Dutch partner asks for an indemnity, when appointing an authorised representative, or when a Dutch authority asks questions.
Primary sources
- Regulation (EU) 2024/1781 of 13 June 2024 (Ecodesign for Sustainable Products Regulation), OJ L, 2024/1781, 28.6.2024; ELI: http://data.europa.eu/eli/reg/2024/1781/oj
- Commission Delegated Regulation (EU) 2026/296 of 9 February 2026, derogations from the destruction ban, applies from 19 July 2026
- Commission Implementing Regulation (EU) 2026/2 of 9 February 2026, format for the disclosure, applies from 2 March 2027; ELI: http://data.europa.eu/eli/reg_impl/2026/2/oj
- Commission Implementing Regulation (EU) 2026/1778 of 16 July 2026, digital product passport registry
- Ecodesign for Sustainable Products and Energy Labelling Working Plan 2025-2030, COM(2025) 187
- Inspectie Leefomgeving en Transport, Jaarplan 2026
Last checked on 31 October 2026 · next relevant date: 2 March 2027 (format for the annual disclosure of discarded unsold consumer products applies)
EU partners asking about unsold stock, the passport or an indemnity? Put your situation to me through my page as product law partner in the Netherlands. — Martin Krüger
