ESPR Derogations: When Can a Fashion Brand Still Destroy Unsold Stock?
From 19 July 2026 a large fashion brand cannot destroy unsold apparel, accessories or footwear unless one of ten narrow derogations applies. The instrument that lists them is Regulation (EU) 2026/296, the Commission delegated regulation that sits under Article 25 of the ESPR. Most returned and unsold garments meet none of the ten, which makes recovery the route for the rest.
What are the ESPR derogations to the destruction ban?
The ESPR derogations are ten exceptions, lettered (a) to (j) in Article 2 of Regulation (EU) 2026/296, adopted as C(2026) 659 final on 9 February 2026 and published in the Official Journal on 22 April 2026. They cover dangerous goods, legal non-compliance, intellectual property positions, garments that cannot be de-branded, damage and defects beyond economic recovery, and stock that no social economy recipient would take. Each one has to be documented and justified before it can be relied on.
What are the ten ESPR derogations in full?
The ten ESPR derogations are: (a) dangerous products, (b) destruction required by law, (c) IP infringement, (d) expired IP licence, (e) branding that cannot be removed, (f) damage beyond economic recovery, (g) an unrepairable defect, (h) donation offered but refused, (i) no social economy recipient found, and (j) reuse prepared but no taker found. Each must be documented before it is relied on.
The ten derogations group by the evidence each one needs, and most carry a test a returned garment will not pass. The table below sets out each derogation in plain English alongside whether a typical returned or unsold garment qualifies.
| Ref | Derogation (plain English) | Evidence required | Does a typical returned or unsold garment qualify? |
|---|---|---|---|
| (a) | Dangerous product under the General Product Safety Regulation, Regulation (EU) 2023/988 | GPSR risk assessment or chemicals test | Rarely. The garment has to be genuinely unsafe, not simply unsold. |
| (b) | Destruction required by a legal requirement the brand cannot lawfully avoid | Documentation that destruction is legally required and proportionate | No. A voluntary internal disposal policy is not a legal requirement. |
| (c) | Intellectual property infringement | Confirmation from the IP holder | No, for ordinary own-brand returns. |
| (d) | Intellectual property licence has expired | Licence agreement plus expiry date | Only for licensed product that has run past its licence expiry. |
| (e) | Branding cannot be removed or obscured for reuse | Record of the removal or obscuring attempt | Rarely. Most garments can be de-branded. |
| (f) | Damaged, deteriorated, contaminated or hygiene-affected beyond use | Repair-feasibility and cost assessment | No, where recovery is feasible and economic. This is the recovery test. |
| (g) | Design or manufacturing defect that cannot be repaired | Repair-feasibility assessment | Not where the defect is repairable for less than resale value. |
| (h) | Donation offered but not accepted | Proof of offer to three or more social economy entities, or eight or more weeks listed on a website, with no acceptance | Last resort, and only with the failed offer documented. |
| (i) | Offered to a social economy entity, no recipient found | Record of the offer and the no-recipient outcome | Once the offer has been made and the no-recipient outcome recorded. |
| (j) | Prepared for reuse, no recipient found | Record that the garment was prepared for reuse with no recipient | After reuse preparation is logged and the search still finds no taker. |
Table caption: The ten ESPR destruction-ban derogations under Delegated Regulation (EU) 2026/296, and whether a returned or unsold garment typically qualifies.
Two derogations are the ones a returns team is most likely to misapply: (f) for damage and (g) for defect. Both contain a recovery-feasibility test, which means a garment that can be cleaned, conditioned or repaired economically fails them. Where recovery is feasible and the cost is justified by the resale value, neither (f) nor (g) shelters destruction.
When can a brand still destroy unsold stock?
A brand can still destroy unsold stock only where one of the ten derogations applies and the brand has documented why. Poor sell-through, overstock and end-of-season clearance are not grounds on their own. None of them appears in Article 2, and a line that reads “did not sell” carries no shelter. A destruction that does qualify under a derogation still has to be disclosed publicly under Article 24, so a lawful exception is not a silent one.
Do returned and unsold garments usually qualify for a derogation?
Usually not. The two derogations a returns flow touches most often, (f) damage and (g) defect, both fail where repair or recovery is feasible and economic. A returned dress with a detached sash, a soiled lining or a detacher-gun mark is damaged in the everyday sense, but it is not damaged beyond economic recovery. For the large majority of returns, recovery to resale-ready condition is the route, and destruction under a derogation is not available.
What documentation does a derogation require?
Each destruction relying on a derogation must be justified and documented, with the records retained for five years. The evidence is specific to the derogation. A GPSR risk assessment supports (a), and a licence agreement with its expiry date supports (d). Proof of offers to social economy entities supports (h). A per-garment recovery record carries most of this as a byproduct, because inspection, treatment-attempt and disposition logs are exactly what a regulator reads when it assesses a (f) or (g) claim. Article 3 of Regulation (EU) 2026/296 sets a thirty-day window for providing those records electronically to authorities on request, and recital 13 allows destructions affected by the same circumstances to be documented collectively rather than item by item.
What happens to garments that do not qualify? The recovery route
A wool overcoat comes back to a UK distribution centre with a missing belt and a watermark across one shoulder. A returns team reaching for derogation (f) finds it does not hold, because the garment can be cleaned and the watermark conditioned out for a cost well below the resale value. Recovery is where it goes instead. Cleaning and conditioning lead, repair follows where a seam, button or lining needs attention, and the garment returns to a saleable state.
This is the structural point for most mid-to-premium brands. Unsold and returned stock that finds no derogation has historically gone to inventory jobbers, which paid less than 7% of garment value in Opera’s pilots, or been written off against margin. Recovery changes that baseline. It runs through a single point of access to a network of professional garment care experts, each treating the garment types that sell in their own market. To see what the route produces against your own returns, put a representative box through the workflow and read the result back.
Outside the ten derogations there is no lawful route to the skip, so recovery is where the volume goes. The per-garment record that recovery produces also stands as the evidence base for the rare destruction a derogation does permit.
Frequently asked questions
Is poor sell-through or overstock a valid reason to destroy unsold stock? No. Poor sell-through, overstock and end-of-season clearance do not appear among the ten derogations in Article 2 of Regulation (EU) 2026/296. A garment discarded for commercial reasons alone surfaces as a destruction with no derogation invoked, and it still has to be disclosed under Article 24.
Which derogation applies to a damaged return? Two might. Derogation (f) covers damage, deterioration, contamination and hygiene; derogation (g) covers a design or manufacturing defect. Both require a recovery-feasibility assessment on the file, and both turn on cost rather than appearance. A scuffed or soiled return is the (f) question; a faulty seam from production is the (g) question. Either way, if the fix costs less than the resale value, the derogation does not hold.
How long do brands keep the documentation for a derogation? Five years. Each destruction relying on a derogation must be justified and documented, and the supporting records are retained for five years from the disposition decision. An audit in 2031 reads records from 2026, so the retention clock starts at the decision, not at the year end.
Does the destruction ban apply to small fashion brands? The ban applies to large enterprises from 19 July 2026 and to medium-sized enterprises from 19 July 2030. Micro and small enterprises are exempt. Enterprise size is set against the Commission Recommendation 2003/361/EC thresholds, counting linked enterprises in a group, so the distinction turns on employee count, turnover and balance-sheet total rather than brand recognition.
If a destruction is allowed under a derogation, do brands still have to report it? Yes. A lawful destruction under any of the ten derogations is still disclosed publicly under Article 24 of the ESPR. The disclosure format is set by Implementing Regulation (EU) 2026/2 and applies from 2 March 2027, so a qualifying exception is recorded and published, not hidden.
Is C(2026) 659 the same thing as Regulation (EU) 2026/296? Yes. Regulation (EU) 2026/296 is the published delegated regulation that lists the derogations. C(2026) 659 final was the Commission’s adoption reference for the same act on 9 February 2026, before it appeared in the Official Journal on 22 April 2026. The regulation applies from 19 July 2026.
References
- Commission Delegated Regulation (EU) 2026/296 (Article 25 derogations; adopted as C(2026) 659 final, 9 February 2026; Official Journal 22 April 2026; applies 19 July 2026).
- Regulation (EU) 2024/1781 (Ecodesign for Sustainable Products Regulation; Articles 24 and 25).
- Implementing Regulation (EU) 2026/2 (Article 24 disclosure format; applies 2 March 2027).
- Regulation (EU) 2023/988 (General Product Safety Regulation).
- Commission Recommendation 2003/361/EC (enterprise-size thresholds, adopted by Article 2 of Regulation (EU) 2024/1781).
- European Commission press release, 9 February 2026.
( About the author )
Joanna Lambert
CEO & Co-Founder, Opera Garment Solutions
Joanna Lambert is CEO and co-founder of Opera Garment Solutions, which recovers returned, damaged and unsold clothing for fashion brands across the EU and the UK from hubs in the United Kingdom, the Netherlands and Spain. She writes on the EU destruction ban and on what returned stock is worth when it goes back to sale.