Introduction 

Climate change and digital transformation are two of the biggest challenges confronting the world today. Forest fires, rising temperatures, and the loss of biodiversity exacerbate the ecological crisis, forcing nations to take action. Simultaneously, the rise of AI, cloud computing, and big data marks a shift towards a new era of uncharted (legal) territory that needs to be addressed. The European Commission acknowledges the importance of these challenges by setting out priorities for the green and digital transitions. Alongside this, the Commission also emphasises the need for a ‘twin transition’ to synergistically deal with the ecological and digital challenges. 

In this blog post, I will discuss the principles that could guide twin transition laws. This is necessary to ensure that legislation dealing with digital products with an environmental impact, like the right to repair of smartphones, adequately balances the green and digital priorities. I will first clarify the definition of the twin transition to identify what the Commission means by it. Subsequently, I will discuss the most important principles relevant to the twin transition. The principles discussed in this post are relevant to smartphone repair laws. For legislation on other twin transition topics, different principles might apply.

The twin transition

The twin transition encapsulates both the green and digital transitions. While the Commission does not explicitly define the twin transition, its 2022 Strategic Foresight Report clarifies that there are two elements to it: synergies and tensions. Firstly, the twin transition is concerned with leveraging the synergies of the green and digital transitions to help them mutually reinforce and support each other. Secondly, the twin transition aims to minimise the tensions between the two transitions.

The focus on synergies refers to the use of digital technologies to facilitate greenhouse gas reduction and to the possibility of transforming the digital sector in light of the green transition through the creation of new sustainable businesses and products. With respect to the tensions, digital technologies are often unsustainable and have a significant environmental footprint. At the same time, critical digital technologies could be damaged by extreme weather events resulting from climate change. These tensions need to be addressed for a successful twin transition.

Although the term ‘twin transition’ is at times used as an umbrella term to refer to the green and digital transitions happening simultaneously but independently, this interpretation is incorrect. The EU’s 2022 Strategic Foresight Report on twinning the green and digital transitions indicates interconnectedness between the green and digital transitions. If the transitions were mutually exclusive, such a report would not be needed as the two transitions would function in isolation with their own unique drivers, goals and principles. Indeed, the Commission views the green and digital transitions as interconnected and mutually reinforcing, wherein ‘neither can succeed without the other’. 

The twin transition principles

While the principles governing the green and digital transition are clear and well-known, the principles guiding the twin transition are not. To establish how the law can be used to operationalise the twin transition, these principles need to be mapped. Several principles from different levels come into play here ­– principles from primary EU treaties, as well as principles mentioned in secondary Commission documents, are relevant. The principles discussed here have been derived from the Treaty on the Functioning of the European Union (TFEU) and from secondary instruments on twin transition regulation, such as the 2021 Better Regulation Communication. Lastly, documents operationalising the green and digital transitions, such as the European Green Deal and the 2022 Declaration on Digital Rights and Principles, are also a source for the principles addressed.

Integration principles

First, the principles of integration are important for the twin transition. The TFEU imposes a duty to integrate environmental (Article 11 TFEU) and consumer (Article 12 TFEU) protection considerations across all EU policies. This means, for example, that laws on the right to repair must not only ensure that the environment is protected but at the same time also ensure that consumers are protected. This might be problematic when a measure aimed at fostering environmental sustainability reduces the level of consumer protection. 

Traditionally, environmental measures are focused on achieving a high level of environmental protection, and consumer protection measures are focused on achieving a high level of consumer protection. However, in the context of the twin transition, these priorities are not distinct and need to be brought together in a coherent manner. In case of conflict, the legislator decides what to prioritise based on the sector in question. With Article 16 of the Right to Repair Directive, the legislator incentivised repair instead of prioritising it. This is laudable as it shows the incorporation of environmental sustainability thinking into consumer protection laws. However, more could have been done. The current approach prioritises consumers’ choice at the expense of the environment. A solution whereby repair is the primary remedy, unless it is unrealistic, would better align with the sustainability goals without significantly compromising consumer protection (Terryn 2019, p. 858). However, such an approach, although considered in the preparatory stage of the Right to Repair Directive, was eventually abandoned during the interinstitutional dialogue.

Principles derived from the 2021 Better Regulation Communication 

The digital by default principle and the principle to do no significant harm are explicitly listed in the 2021 Better Regulation Communication as principles relevant for the twin transition. These principles need to be considered at the preferred option assessment stage of the impact assessment. The digital by default principle refers to the priority of offering services digitally to foster digitalisation. By contrast, the principle to do no significant harm closely resembles the principle of environmental integration outlined in Article 11 TFEU, stressing  the need to consider the environmental effects of legislation and ensure that no significant harm is done to the environment. Unlike the digital by default principle, the 2021 Better Regulation Communication states that the explanatory memorandum accompanying every piece of legislation must highlight how it has taken into account the do no significant harm principle. This strict requirement stems from Article 6(4) of the EU’s Climate Law, which seeks to ensure consistency between legislative proposals and the EU’s climate neutrality objectives. 

Principle of just transition

The EU also stresses the need to ensure that its transitions are inclusive and leave no one behind. Therefore, it seeks to support vulnerable groups most affected by the twin transition. This is reflected by the principle of just transition and the principle to leave no-one behind, outlined in the European Green Deal and the 2022 Declaration on Digital Rights and Principles, respectively. These principles reflect the social dimension of the transition and are meant to protect the citizens most affected by the transition, which may include consumers. Therefore, measures aimed at sustainability that reduce consumer protection must be ‘just’ and ‘fair’, meaning that they should not catch consumers off guard, or apply retroactively. 

Principles of human-centred technologies and the principle of trust

Technologies are key to the twin transition. Therefore, principles guiding the features and characteristics of technologies are also important to the twin transition. The principle of human-centred technologies and the principle of trust are explicitly referred to in the 2022 European Declaration on Digital Rights and Principles. The principle of human-centred technologies is concerned with ensuring that technologies are designed to respect the fundamental rights of the people who benefit from them, and the principle of trust seeks to enhance users’ confidence in the technologies they use. Applying these principles to the right to repair means that smartphones should not be designed to become prematurely obsolete, as this not only affects the consumer’s property rights but also diminishes their trust in the technology. 

Principle of sustainable digital technologies

Lastly, the principle of sustainable digital technologies is also listed in the 2022 Declaration on Digital Rights and Principles. It emphasises the need to minimize the negative social and environmental impacts of digital technologies and to ensure that consumers are able to make sustainable choices. This principle is important in the case of the right to repair smartphones, as it highlights the importance of sustainable product design and production while also addressing the need to facilitate consumers’ sustainable decision-making.

Conclusion

The twin transition is the marriage of the green and digital transitions, which brings along synergies as well as tensions. Twinning seeks to maximise synergies while minimising the tensions between the green and digital transitions. The principles outlined here highlight that the twin transition seeks to foster environmental sustainability and to ensure that technologies become more ethical. It will be interesting to check how – if at all – the Commission applies and balances the principles identified here in its legislation aimed at facilitating, for example, the right to repair in the EU. At the very least, the legislator will now have to balance environmental protection considerations, which were an aspect largely absent from consumer protection in the past, in its new measures. The results will highlight whether the twin transition is merely a political buzzword or a priority guiding legislation.