Ecodesign Regulation Legal Basis

The Ecodesign for Sustainable Products Regulation (Regulation */*), which entered into force on * July *, aims to significantly improve the circularity, energy performance, and other environmental sustainability aspects of products placed on the EU market. The Regulation aims, among others, to prevent the destruction of unsold textiles, in particular garments and footwear. Its legal basis is Article * TFEU, which the legislature justified by saying that a common European approach to improving environmental sustainability of products is necessary to counter national fragmentation. Such fragmentation in environmental sustainability standards imposes serious burdens on companies. Fashion retailers are dismayed by the Regulation, fearing it undermines their business model. In response, Zara, Primark, and H&M bring legal action before a national court against the Regulation, arguing that the wrong legal basis was used for its adoption and that the Regulation should therefore be declared invalid. In support of this plea, they make three claims. First, Zara, Primark, and H&M claim that since the Regulation restricts the freedoms of businesses operating in the fashion market, it undermines the functioning of the internal market in fashion products and therefore cannot be based on Article * TFEU. Second, they claim that, since the Regulation primarily pursues environmental objectives, it should have been based on Article * TFEU instead of Article * TFEU. Third, they claim that, even if Article * TFEU is not the incorrect legal basis, the Regulation should be invalidated for violating the principles of subsidiarity and proportionality. The destruction of clothing can just as well be prevented through regulation at the national level (violation of the principle of subsidiarity). It can also be achieved through self-regulation by the fashion industry, so the EU legislative intervention was not necessary (violation of proportionality). The national court decides to stay the proceedings and refer preliminary questions about the three claims to the Court of Justice. Please address the three claims. Could the Regulation have been adopted under Article * TFEU or should it be invalidated for using the wrong legal basis or violating the principles of subsidiarity and/or proportionality?