Tightly defined exemptions to the destruction ban (Del. Reg. (EU) 2026/177 + 2026/296)
A closed catalogue of circumstances in which destroying unsold Annex VII ESPR products remains lawful despite Art. 25. Given concrete shape by Del. Reg. (EU) 2026/177 and 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 set by two delegated regulations (EU) 2026/177 and 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 successive instruments give concrete shape to the regime: Delegated Regulation (EU) 2026/177 with the 7 initial exemptions and Delegated Regulation (EU) 2026/296 of 9 February 2026 with the expanded variant including 14 detailed recitals on each exemption circumstance.
Catalogue of exemptions (Art. 2 Del. Reg. 2026/296)
Product dangerous within the meaning of Regulation (EU) 2023/988 on general product safety.
Concern for the safety or hygiene of the product.
Protection of intellectual property rights, including valid contractual obligations such as licences restricting sale or distribution beyond a given date.
Technical infeasibility of removing or permanently rendering inaccessible labels, logos or design features necessary to ensure respect for intellectual property.
Products unsuitable for reuse or remanufacturing because they are inappropriate in a particular cultural, ethical or social context (products perpetuating discrimination, exploiting stereotypes or relying on inflammatory language or imagery).
Products damaged during handling, storage, transport, retail sale or consumer return, where repair is neither technically feasible nor cost-effective.
Products non-functional due to design or manufacturing defects that impair the product's main purpose, where they cannot be repaired.
Products donated with no accepted recipient: the operator must have offered the donation to at least three social economy entities within the Union or published the offer on its website for a minimum period of eight weeks.
«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) 2026/177
7 initial exemptions.
Del. Reg. (EU) 2026/296
Expanded variant with 14 detailed recitals.
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 8 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 7 exemptions of Del. Reg. 2026/177 are not the definitive ones.
Delegated Regulation (EU) 2026/296 of 9 Feb 2026 expands and details the 7 initial exemptions of 2026/177 with 14 explanatory recitals and 8 cases in Art. 2. The variant currently operative for textiles-footwear is 2026/296.
Frequently asked questions
What are the tightly defined exemptions to the ESPR Art. 25 ban?
A closed catalogue of 8 circumstances in which the destruction of unsold ESPR Annex VII products remains lawful despite the ban of Art. 25. Set in Art. 2 of Delegated Regulation (EU) 2026/296 of 9 February 2026 (expanded variant of the initial 2026/177).
What are the 8 operative exemptions?
a) dangerous product under Reg. EU 2023/988; b) safety or hygiene; c) intellectual property including expired licences; d) technical infeasibility of removing labels carrying intellectual property; e) products inappropriate in cultural, ethical or social contexts; f) damaged products not repairable; g) products non-functional due to non-repairable defects; h) products donated with no accepted recipient after an offer to three social economy entities or 8 weeks on the website.
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 Commission · OJEU2026Delegated 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
