Why France demands more than Spain on textile EPR under Article 114 TFEU: analysis of notification C/2026/1806

Article 114 TFEU as a maximum harmonisation mechanism

The internal market requires uniform rules. Article 114 of the Treaty on the Functioning of the European Union (TFEU) constitutes the default legal basis for the adoption of measures approximating national legislation. Its aim is to eliminate the barriers to trade arising from regulatory disparities. When the Union legislates under this provision through regulations such as the ESPR, it consolidates a regime of maximum harmonisation. Member States lose the competence to enact or maintain divergent rules.

Maximum harmonisation secures free movement. It prevents a State from requiring additional requirements of products coming from other Member States. Nevertheless, the Treaty itself contemplates an escape valve to protect concurrent fundamental interests. Article 114(4) TFEU governs the reinforced-protection exception. The provision empowers Member States to maintain pre-existing national provisions that are stricter than the Union harmonisation rule.

The activation of this mechanism is not automatic. It requires a formal notification to the European Commission. The Member State bears the burden of proof. It must demonstrate that the national measure is indispensable. The case law allows this exception only where exhaustively defined grounds concur. The notified text itself reflects the Treaty requirement: «Article 114(4) provides that, if after the adoption of an EU harmonisation measure a Member State wishes to maintain stricter national provisions on the major grounds referred to in Article 36 TFEU, or relating to the protection of the environment or the working environment, it shall notify them to the Commission and indicate the grounds for maintaining them».

There is a doctrinal difference between Article 114(4) and Article 36 TFEU. Article 36 operates as a general exception to the prohibition of quantitative restrictions on imports or exports in the absence of EU harmonisation. Article 114(4) intervenes in an already harmonised regulatory scenario, allowing the Member State to disapply a regulation or directive in force in its territory. The Commission's scrutiny is especially rigorous, assessing the proportionality of the measure and ensuring that the national provision does not constitute a means of arbitrary discrimination or a disguised restriction on trade.

Notification C/2026/1806 dismantled

The French derogation procedure began its formal course at the end of 2025: «By letters of 28 November and 26 December 2025, France notified the Commission of its wish to maintain in the French environmental code national provisions on the destruction of unsold products that differ from those of Regulation (EU) 2024/1781».

The scope of the notification delimits two fields of action. The first affects the products of Annex VII (clothing and clothing accessories, footwear). For these groups, EU legislation provides a temporary exemption for medium-sized companies until 19 July 2030. France's intention is to annul this moratorium in its national market. The second field extends the prohibition to other groups of consumer products not listed in Annex VII, applying the restriction to all companies regardless of their size.

The legal grounding of the request rests on environmental protection: «France considers that the national provisions it proposes to maintain on the major grounds referred to in Article 36 of the Treaty on the Functioning of the European Union (TFEU) and relating to the protection of the environment are stricter than those of Regulation (EU) 2024/1781».

The French environmental code imposes strict obligations: «Since the end of 2023, unsold products must be re-used as a priority, in particular through donation; failing that, they must be recycled». To align the rigour with the ESPR framework and avoid collateral conflicts, France has adjusted the wording of its provision. The notified French draft excludes recycling from the operations permitted for unsold textiles, forcing re-use as the only route, and exempts micro and small enterprises.

The Commission has a closed temporal mandate: «Under Article 114(6), the Commission has six months after the notification of the national provision to approve or reject it». During this period, the national provision is subject to a material compatibility analysis. The Commission verifies the pre-existence, assesses the relevance of the environmental justifications and rules out the presence of disproportionate restrictions on the internal market.

Verifiable temporal asymmetry France vs Spain

The jurisdictional contrast between France and Spain defines the operational risk map for the textile sector over the coming four-year period.

France enshrines an uninterrupted regulatory framework. The medium-sized companies operating in French territory will not experience any window of exemption. The obligation to divert unsold products towards re-use channels is in force at present and will continue to apply on a binding basis until it links up with the date of entry into force of the European standard in 2030. The French legislator argues that diverting one kilogram of textiles and household linen from household waste for re-use or recycling saves fourteen kilograms of CO2 equivalents.

Spain opts for strict alignment with the harmonised European calendar. Law 7/2022, on waste and contaminated soils for a circular economy, introduced the ban on destroying unsold surplus in its Article 18.2. The text orders that unsold textiles «shall be destined first to re-use channels, including their donation». However, the enactment of Regulation (EU) 2024/1781 has reconfigured the application framework.

The MITECO Draft Royal Decree (June 2025) clarifies the position of the Spanish legislator. Article 8.4 establishes direct subjection to the EU rule: «In relation to unsold consumer products and in accordance with Article 18.2 of Law 7/2022 of 8 April, the destruction of unsold textile and footwear products is prohibited. As regards the provision of information on unsold consumer products, the provisions of Chapter VI of Regulation (EU) 2024/1781 shall apply».

This referral confirms the full adoption of the ESPR timetable in Spain. Medium-sized textile companies enjoy an effective legal moratorium in Spanish territory until 19 July 2030. An operational gap of exactly four years materialises between France and Spain for the intermediate segment of the textile market.

This disparity coincides with a critical period. Directive (EU) 2025/1892 imposes on Member States the obligation to establish mandatory extended producer responsibility (EPR) schemes for textiles before 17 April 2028.

Operational implications for pan-European brands

Notification C/2026/1806 constitutes a logistical disruption factor. The medium-sized brands operating simultaneously in France and Spain face a divergent compliance scenario. The unified management of surplus becomes unviable.

The first implication requires the configuration of a territorialised compliance architecture. Economic operators must implement documentary traceability systems capable of associating specific regulatory requirements with each batch of unsold inventory according to its location and final destination. The decision logic of the ERP systems must discriminate the legal status of the subsidiary or logistics platform holding the product.

Secondly, the gap forces inventory to be consolidated differentiated by destination. Product in a French distribution centre requires an exhaustively defined evacuation procedure: it does not allow destruction, and must prioritise donation to social economy entities. The identical product in Spanish territory, managed by the same medium-sized parent, does not incur an infringement for destruction before July 2030. Cross-flows of inventory generate contingencies.

The criticality of clauses with garment makers increases. Logistics contracts must reflect the stricter standard if there is cross-border consolidation. The transfer of unsold products from France to facilities in Spain for destruction constitutes an infringement of the French framework and a breach of the information obligations relating to exports of the competent organisation.

The fourth element is the risk arising from dual distribution and reverse logistics. The recovery of returns from the e-commerce channel presents added complexity. If a product dispatched from Spain to a consumer in France returns as unsellable and is consolidated on French soil, it acquires the treatment obligations of France.

The exceptions of Delegated Regulation (EU) 2026/296 are directly applicable. The economic operator may only destroy where exhaustively defined causes concur: safety risk, irresolvable legal non-conformity, infringement of intellectual property, irreversible physical damage, documented refusal by donation entities. The invocation of exceptions requires the preservation of specific evidentiary records available to the competent authorities.

For a complete analysis of the Spanish textile EPR framework and the textile [DPP](/recursos/glosario/dpp) under [ESPR](/recursos/glosario/espr), see the [Spanish textile EPR technical manual](/recursos/blog/responsabilidad-ampliada-productor-textil-espana-manual-tecnico) and the [textile DPP under ESPR technical manual](/recursos/blog/pasaporte-digital-producto-textil-espr-manual-tecnico).