Tightly defined exemptions to the destruction ban (Del. Reg. (EU) 2026/296 · Art. 2)
A closed catalogue of circumstances in which destroying unsold Annex VII ESPR products remains lawful despite Art. 25. There are ten, listed in Art. 2 of Del. Reg. (EU) 2026/296.
Context
The tightly defined exemptions are the only legally valid justifications for destroying unsold textile and footwear products despite the ban of ESPR Art. 25. They are not discretionary: they form a closed catalogue of ten cases set by Art. 2 of Delegated Regulation (EU) 2026/296. Each destruction must be documented with evidence retained for five years and reported in the format of Impl. Reg. (EU) 2026/2.
Regulatory origin and legal basis
Legal basis: Art. 25.5 of Regulation (EU) 2024/1781 ESPR, which empowers the Commission to adopt delegated acts enumerating the circumstances in which the ban does not apply. Two distinct lists should not be confused. Art. 25.5 itself lists SEVEN grounds on which the Commission may set derogations (health, hygiene and safety; damage not repairable cost-effectively; unfitness for the intended purpose; non-acceptance of the donation offered; unsuitability for preparing for reuse or remanufacturing; unsaleability due to infringement of intellectual property rights; and destruction being the least environmentally harmful option): that is the MANDATE to the Commission, not the exemptions themselves. The exemptions actually adopted are TEN and live in Art. 2 of Delegated Regulation (EU) 2026/296 of 9 February 2026, whose preamble has 14 recitals.
Catalogue of exemptions (Art. 2 Del. Reg. 2026/296)
The product is dangerous within the meaning of Regulation (EU) 2023/988 on general product safety.
The product is not fit for its purpose because it does not comply with Union or national law, for reasons other than those of point (a), and destruction is required by law or is the appropriate and proportionate corrective measure.
The product has been found to infringe intellectual property rights by a final court ruling, an alternative dispute resolution decision, a notification from a rights holder, a competent authority or an authorised entity, or a duly justified internal investigation by the operator.
The product is subject to a licence or similar contractual requirement protecting intellectual and industrial property rights under which transferring it after a given period would constitute an infringement, and that period has expired.
The product is not suitable for preparing for reuse or remanufacturing because it is technically infeasible to remove or permanently render inaccessible recognisable labels, logos or design features that are protected by intellectual property rights or are considered inappropriate.
The product can reasonably be considered unacceptable for consumer use owing to damage, deterioration or contamination — including hygiene issues — caused by consumers or occurring unintentionally during handling, transport, retail sale or storage, and repair or refurbishment is neither technically feasible nor cost-effective.
The product is not fit for its intended use owing to design or manufacturing defects whose repair is not technically feasible.
Only where none of points (a) to (g) applies: the product has been offered for donation directly to at least three suitable social economy entities located in the Union, or on an easily accessible page of the operator's website, for at least eight weeks, and has not been accepted.
The product has been received as a donation by a social economy entity located in the Union, but no acquirer has been found for it.
The product has been placed on the market after being prepared for reuse by a waste treatment operator, but no acquirer could be found.
«In order to prevent abuse and to ensure that the exemptions applied by economic operators are justified so that destruction remains a measure of last resort, there should be adequate verification mechanisms based, where appropriate, on existing product quality assurance practices. So that competent national authorities can carry out the appropriate controls, economic operators should retain for five years all relevant documentation used by economic operators for their verification.»
Prior donation mechanism (recital 11)
Recital 11 of Del. Reg. 2026/296 sets the donation procedure as a filter before destroying. The operator must offer the unsold products to suitable social economy entities within the Union, giving priority to local donations to minimise environmental impact and foster sustainable inclusive employment. The offer must be (i) made directly to at least three suitable entities, or (ii) published on an easily accessible operator website for a minimum period of eight weeks. Only if there is no acceptance may destruction be contemplated.
Declaration to the waste treatment operator
Recital 14 of Del. Reg. 2026/296 introduces an additional requirement: operators aware of the exemption circumstances must provide a declaration to the receiving waste treatment operator on the applicable exemption, to support more efficient sorting processes, improve reuse and recycling rates and reduce treatment costs.
Timeline
ESPR entry into force
Empowerment of Art. 25.5 to adopt delegated acts.
Del. Reg. (EU) 2026/296
The only delegated act setting the exemptions: ten cases in its Art. 2, with 14 recitals.
Publication in the OJEU
L series 2026/296.
Application for large companies
Exemptions operative in parallel with the Art. 25 ban.
Application for medium-sized companies
Extension of the regime.
Applied case
A European textile brand faces three stock situations in the 2026 financial year and must apply the exemption catalogue of Del. Reg. 2026/296.
Case 1 · 200 T-shirts with a dyeing defect detected in quality control before reaching the store. Applicable exemption: g) product non-functional due to a manufacturing defect impairing the main purpose. Documentation: quality control report + photograph of the defect + decision of non-reparability with estimated cost. Retention: 5 years.
Case 2 · 500 hats from the 2024 collection with an image licence expired in December 2025. Applicable exemption: c) protection of intellectual property linked to valid contractual obligations. Documentation: copy of the licence contract with the expiry date + internal record justifying the impossibility of continuing to market them.
Case 3 · 1,000 pairs of shoes from the end of the 2025 collection. The brand first offers them to three local social economy entities (Caritas, Banco de Ropa de Madrid, Roba Amiga Catalunya) by formal email. After 8 weeks with no acceptance, it publishes the offer on its website. After a further 8 weeks with no recipient, it applies exemption h) products donated with no accepted recipient. Documentation: emails sent + website screenshots + internal record.
Closing: the three destructions are included in the annual reporting of Impl. Reg. 2026/2 (disclosure format) with reasons and exemptions made explicit per batch.
Common mistakes
The exemptions are not discretionary.
They form a closed catalogue set by Art. 2 of Del. Reg. (EU) 2026/296. A circumstance that does not fit verbatim into one of the ten cases does NOT justify destruction. The competent national authority may penalise destructions documented with reasons that do not fit the catalogue.
Donation is not an exemption in itself.
Recital 11 sets donation as a mandatory PRIOR FILTER before applying exemption h) (products with no accepted recipient). Donation is not an exception to the ban: it is the procedure that must be followed before exemption h) can be invoked in the event of non-acceptance.
Merely citing the exemption in the reporting is not enough.
The exemption must be documented with adequate evidence retained for 5 years (Art. 3 Del. Reg. 2026/296). The annual reporting of Impl. Reg. 2026/2 cites the exemption applied, but the supporting evidence must be producible on inspection. The mere mention without evidence does not protect.
The SEVEN grounds of ESPR Art. 25.5 are not the exemptions: they are the mandate to the Commission.
Art. 25.5 ESPR lists seven reasons for which the Commission MAY set derogations (health/hygiene/safety, damage not repairable cost-effectively, unfitness for the intended purpose, non-acceptance of the donation, unsuitability for preparing for reuse, unsaleability due to intellectual property infringement, and least environmental impact). The exemptions that can actually be invoked are TEN and sit in Art. 2 of Delegated Regulation (EU) 2026/296, points (a) to (j). Documenting a destruction by citing
«the ground in Art. 25.5»
instead of the matching point of Art. 2 leaves the justification incomplete.
Frequently asked questions
What are the tightly defined exemptions to the ESPR Art. 25 ban?
A closed catalogue of ten circumstances in which the destruction of unsold ESPR Annex VII products remains lawful despite the ban of Art. 25. They are listed in points (a) to (j) of Art. 2 of Delegated Regulation (EU) 2026/296 of 9 February 2026, the only delegated act that sets them.
What are the ten operative exemptions?
a) dangerous product under Reg. (EU) 2023/988; b) non-compliance with Union or national law; c) established infringement of intellectual property rights; d) expired intellectual property licence; e) protected labels, logos or design features that cannot be removed; f) damage, deterioration or contamination not repairable cost-effectively; g) irreparable design or manufacturing defects; h) donation offered for eight weeks without acceptance; i) social economy entity that finds no acquirer; j) product prepared for reuse with no acquirer.
How long must I retain the documentation of the exemption?
Five years under Art. 3 of Delegated Regulation (EU) 2026/296. Where multiple products are affected by the same circumstances, the documentation may be made collectively. Retention must allow inspection by competent national authorities.
What donation mechanism does exemption h) require?
Recital 11 of Del. Reg. 2026/296 sets that the operator must offer the unsold products directly to at least three suitable social economy entities within the Union, or publish them on an easily accessible operator website for a minimum period of eight weeks. Only if there is no acceptance may destruction be contemplated under exemption h).
Must I inform the waste treatment operator about the exemption applied?
Yes. Recital 14 of Del. Reg. (EU) 2026/296 introduces the requirement: operators aware of the exemption circumstances must provide a declaration to the receiving waste treatment operator on the applicable exemption, to support more efficient sorting processes, improve reuse and recycling rates and reduce treatment costs.
Fuentes oficiales
- European Commission · OJEU9 feb 2026Delegated act in force
- European Parliament and Council · OJEU13 jun 2024Regulation in force
- European Parliament and Council · OJEU L 135 of 23.5.202310 may 2023Referenced standard
