EU Delegated Regulation C(2026) 659: Derogations from the Destruction Ban

Overview

Commission Delegated Regulation C(2026) 659, adopted on 9 February 2026, supplements Article 25(5) of the Ecodesign for Sustainable Products Regulation (ESPR - Regulation (EU) 2024/1781). It defines the 10 specific circumstances under which unsold apparel, clothing accessories and footwear may still be destroyed despite the general prohibition. It applies from 19 July 2026.

Scope

The regulation applies exclusively to products listed in Annex VII of the ESPR - namely textile and leather apparel, clothing accessories and footwear placed on the EU market and primarily intended for consumers. It covers excess stock, dead stock, and goods returned by consumers. Products that have been definitively sold are not covered.

Timeline

19 July 2026: Destruction ban and derogations apply to large enterprises.
19 July 2030: Same obligations extend to medium-sized enterprises.
Micro and small enterprises are permanently exempt.

The 10 Derogations (Article 2)

Destruction is permitted only where the relevant documentation (Article 3) can be presented, under any of the following circumstances:

(a) Dangerous product - The product is a dangerous product within the meaning of Regulation (EU) 2023/988 (General Product Safety Regulation), posing a risk to health or safety where no other mitigation measures are possible.

(b) Non-compliant with law - The product is unfit for purpose because it is non-compliant with Union or national law for reasons other than safety (e.g. ethical reasons such as forced labour), and destruction is required by law or is the appropriate and proportionate corrective action.

(c) IP rights infringement - The product is found to infringe intellectual property rights by a final judicial decision, an ADR decision, a notification by a right holder or competent authority, or a duly substantiated internal investigation.

(d) Expired IP licence - The product is subject to a valid licence or contractual requirement protecting IP rights, according to which sale or distribution after a specified period constitutes an infringement, and that period has expired - provided the operator can substantiate the infringement and demonstrate destruction is appropriate and proportionate.

(e) Unsuitable for reuse due to labels or design - The product is unsuitable for preparing for reuse or remanufacturing because it is technically unfeasible to remove or render permanently inaccessible labels, logos or recognisable design characteristics that are either (i) protected by intellectual property rights, or (ii) considered inappropriate (e.g. perpetuating discrimination, exploiting stereotypes, or relying on inflammatory language or images).

(f) Damaged product - The product can reasonably be considered unacceptable for consumer use due to physical damage, deterioration or contamination (including hygiene issues), whether caused by consumers or occurring during handling, transport, retail or storage - and repair or refurbishment is not technically feasible or cost-effective.

(g) Design or manufacturing defect - The product is unfit for its intended purpose due to design or manufacturing defects that render it non-functional, and repair is not technically feasible.

(h) Donation refused - last resort - Only where none of the circumstances in (a) to (g) apply: the product was offered for donation either directly to at least three suitable social economy entities within the Union, or on an easily accessible page of the operator's website for at least eight weeks, and was not accepted.

(i) Social economy entity - no recipient found - The product was received by a social economy entity within the Union as a donation, but no recipient could be found for it.

(j) Prepared for reuse - no recipient found - The product was made available on the market after being prepared for reuse by a waste treatment operator, but no recipient could be found for it.

Documentation Requirements (Article 3)

Operators must retain supporting evidence for 5 years after destruction, in electronic form, and provide it to authorities within 30 days of a request. Documentation may be prepared collectively where the same circumstances affect multiple products. Required evidence varies by derogation - for example: a GPSR-compliant safety assessment for (a), a self-assessment statement for (b), a judicial or ADR decision for (c), inspection reports for (e), quality assessment records for (f) and (g), and evidence of donation offers for (h).

Statement to Waste Treatment Operators (Article 4)

When delivering unsold products for destruction, operators must inform the waste treatment operator of the applicable derogation. This supports more effective sorting, improves reuse and recycling rates, and reduces unnecessary waste treatment costs.

Waste Hierarchy Obligation

Even where a derogation applies, destruction must be carried out in accordance with the waste hierarchy: recycling takes priority over other recovery (including energy recovery) and disposal operations.

Review Clause (Article 5)

The Commission must review this regulation every time a new product is added to ESPR Annex VII, and at least every 5 years after entry into force. The review may consider whether high-quality recycling technologies justify a future derogation under Art. 25(5)(g) - which was deliberately excluded from this version.