The evidence file: what a lawful destruction has to be able to show

Ten grounds permit a large fashion brand to destroy the unsold products listed in Annex VII after 19 July 2026. They are lettered (a) to (j) in Article 2 of Commission Delegated Regulation (EU) 2026/296, and we have set out the ten derogations that permit destruction under the ESPR in full. Part 2 of this series covers which products Annex VII reaches.

The part that decides whether a derogation actually holds is Article 3, and it is read far less often. Article 2 opens with a condition attached to every one of the ten grounds:

Unsold consumer products listed in Annex VII to Regulation (EU) 2024/1781 may, provided that the documentation referred to in Article 3 can be presented, be destroyed under any of the following circumstances:

A derogation is a claim the brand has to be able to evidence, at a point up to five years later, within 30 days of being asked.

The ESPR retention rule, in the words of the regulation

Article 3 opens:

Economic operators shall, for a period of five years after an unsold consumer product subject to a derogation pursuant to Article 2 has been destroyed, keep, and, upon request, put at the disposal of the competent authorities, in electronic form, within 30 days of receipt of the request […] the following documentation:

The clock runs from destruction, so a garment destroyed in November 2026 is evidenced until November 2031. The form is electronic, which rules out a paper file in a warehouse office as the primary record. The window is 30 days from receipt of the request, which is short for any process that involves retrieving records from a third-party contractor.

The obligation is also per product subject to a derogation. The file has to be capable of being assembled for a specific consignment, not offered as a general policy statement.

Article 24(2) of the Regulation itself runs a parallel duty on the disclosure side, with the same 30-day window, covering the information and documentation necessary to demonstrate the delivery and reception of discarded products, and where relevant the applicability of a derogation. Part 4 of this series covers how that request arrives.

The evidence changes with the ground

Article 3 sets a specific evidence list per ground, and the difference between those lists decides which team inside the business owns the record.

Where the ground is that a product is dangerous within the meaning of Regulation (EU) 2023/988, or non-compliant with Union or national law, the evidence sits with product safety and regulatory affairs. It is an assessment, a decision and, in the non-compliance case, the basis on which destruction was required by law or was the appropriate and proportionate corrective action.

Where the ground is intellectual property, the evidence sits with legal. Ground (c) turns on a finding of infringement by a final judicial decision, an alternative dispute resolution outcome, a notification from a right holder or authority, or the operator’s own internal investigation, in each case where the operator can duly substantiate the infringement. Ground (d) turns on a valid and enforceable licence under which transfer after a specified period would infringe, and on that period having expired. Ground (e) turns on it being technically unfeasible to remove or render permanently inaccessible labels, logos or recognisable design features that are protected by intellectual property rights or considered inappropriate.

Where the ground is condition, at (f) damage, deterioration or contamination, or at (g) an unrepairable design or manufacturing defect, the evidence sits with the operation that handled the garment. Where a garment’s condition is the reason for the decision, Article 3 attaches a quality assessment expectation that no other ground carries.

Where the ground is a failed reuse route, at (h), (i) or (j), the evidence is a record of an offer that was made and not taken up.

The standard the condition grounds set

For the damage and defect grounds, the documentation Article 3 expects includes evidence that the product has been subject to quality assessment procedures including visual inspection and sorting that prioritises restocking and repairs.

Read that against how unsold and returned stock is usually handled. A consignment that arrives at a warehouse, gets a bulk visual scan and is written down as unsaleable produces no such evidence. A garment that has been individually inspected, classified, and routed first to restocking or repair before any disposal decision produces it as a by-product.

We should be transparent here: this is the work our own business does, so read this section knowing we are an interested party. The standard is set in Article 3 of the delegated regulation and anyone can check it there.

“Cost-effective” is defined, and the definition is demanding

Ground (f) is only available where the product is unacceptable for consumer use through damage, deterioration or contamination, and repair and refurbishment are not technically feasible or cost-effective. Brands read that second limb as a commercial judgement. It is a defined term.

Article 1(2) of the delegated regulation:

‘cost-effective’ means the cost of repairing or refurbishing a product not outweighing the total cost of destruction of that product and of materials, manufacturing, packaging, transport, stocking and any other administrative or logistical expenses of replacing that same product.

The comparator is not whether repair is cheap in the abstract, and it is not repair cost against the item’s current markdown value. It is repair cost against the full cost of destroying the item and replacing it: materials, manufacturing, packaging, transport, stocking and the administrative and logistical expenses of getting a replacement into the same position.

Read the verbs carefully, because they are narrow. The definition prices repairing or refurbishing, and it prices them against replacement. Cleaning, pressing and presentation are not named in it. Refurbishing is not defined in the delegated regulation either, so how far it reaches is arguable. On the face of the text the cost-effectiveness limb is about repair and not about conditioning.

Whether such a garment clears the first limb is a separate question and an open one. Ground (f) requires the product to be reasonably considered unacceptable for consumer use through damage, deterioration or contamination. Whether an item that is unsaleable as it arrives, but remediable by cleaning, is unacceptable for consumer use within the meaning of the delegated regulation is not resolved by the text and we have found nothing that resolves it. We would read it as pointing away from the derogation, and we are an interested party in that reading, so treat it as our view rather than as settled law.

Where a garment needs actual repair, the cost-effectiveness limb does apply and the comparator is replacement cost in full.

Either way the comparison has to be run and recorded on the brand’s own figures. The definition is the obvious point of challenge on ground (f), though there is no enforcement practice yet to confirm that, and a brand relying on it at volume should be able to show the working.

The donation route runs on an eight-week clock

Ground (h) is the one brands reach for when the condition grounds do not fit, and it is narrower than it appears.

It applies only where none of grounds (a) to (g) is applicable. The product must have been offered for donation either directly to at least three suitable social economy entities located within the Union, or on an easily accessible page of the operator’s own website, for a period of at least eight weeks, and not accepted.

So the sequence has a shape. The condition grounds are tested first. If none applies, an offer goes out and stays open, and only after the period has run without acceptance does destruction become lawful on this ground.

One point of drafting is worth flagging instead of glossing over. The eight-week period sits at the end of a sentence carrying two alternative routes, the direct offer to three entities and the offer published on the operator’s own website. Whether it qualifies both routes or only the second is not put beyond doubt by the wording. We read it as qualifying both, which is the more onerous reading and the safer one to plan against.

Either way a brand planning to clear a season’s stock on a compressed timetable has a two-month floor built into the process, and a documentary trail to keep.

Grounds (i) and (j) sit downstream of the same logic. Ground (i) covers stock that was donated to a social economy entity in the Union which then could not find a recipient. Ground (j) covers stock that was prepared for reuse by a waste treatment operator, made available on the market, and found no recipient.

What a social economy entity is

The eight-week offer has to go to at least three suitable social economy entities. That is a defined term, not a general description of a charity. Directive (EU) 2025/1892, which amends the Waste Framework Directive, inserts the definition at Article 3, point 4i, of that Directive:

‘social economy entity’ means a private law entity that provides goods or services and operates in accordance with the following principles: (a) the primacy of people as well as social or environmental purpose over profit; (b) the reinvestment of all or most of the profits and surpluses to further pursue their social or environmental purposes and carry out activities in the interest of their members or users or society at large; and (c) democratic or participatory governance.

Each of those three conditions has to hold. A commercial reseller of surplus stock does not qualify on the first, whatever it does with the garments. An organisation with a social purpose and conventional shareholder governance does not qualify on the third.

One further step sits between that definition and a brand’s own decision. Directive (EU) 2025/1892 is a directive, so it binds member states to transpose it rather than applying of its own force. The test a brand actually has to satisfy when it assesses an organisation in Italy, Poland or Spain is that state’s transposing law. Member states have until 17 June 2027 to bring the necessary laws, regulations and administrative provisions into force, so a brand assessing an entity today may be doing so in a state that has not yet transposed. The definition above is the standard those laws are written against, and it is the best available guide in the meantime.

There is no Union register of qualifying entities either, so a brand relying on ground (h) is making its own assessment of suitability and recording the basis for it. That assessment is part of the evidence file, alongside proof that the offer was made, to whom, and for how long.

Building the file at the point of decision

The practical difficulty with all of this is timing. An evidence file that has to be produced within 30 days, up to five years after the event, cannot be reconstructed from memory or from a disposal invoice. It has to be created at the point the disposition decision is made.

That has consequences for how stock is handled. What the record has to capture is what was found on the garment, what was attempted on it, and where it went afterwards. A bulk write-off line carries none of those three.

It also has consequences for contracts with third parties. Where the assessment or the treatment happens outside the business, the records sit outside the business too, and the 30-day production window belongs to the brand rather than to the contractor. That is a clause to check in a disposal, recovery or logistics agreement rather than assumed. The clause needs to name what comes back as well as when: at minimum the consignment reference, the weight received, the treatment route applied and the identity of the operator that applied it, since that is what the disclosure and the evidence file both draw on.

Two retention clocks run alongside each other and they are easy to conflate. Article 3 of the delegated regulation holds derogation documentation for five years from the destruction, in electronic form. Article 4 of Implementing Regulation (EU) 2026/2 holds the disclosure information and the delivery and reception documentation for five years from the disclosure, and Article 24(2) of the Regulation allows that material to be produced in paper or electronic form. A destruction in November 2026, disclosed in a later cycle, therefore sits under the longer of the two. A retention policy written to the later date and to the electronic standard satisfies both.

Note that none of this creates an item-level reporting obligation. Article 24 asks for aggregate figures differentiated per type or category of products. The per-garment record is what makes a derogation defensible under Article 3, and it is a different thing from what has to be published.

The record recovery produces

Article 3(16) of Directive 2008/98/EC defines preparing for re-use as “checking, cleaning or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing”, and Article 2(34) carves discarding for the sole purpose of delivering a product for that treatment out of the definition of destruction. Stock handled that way needs no derogation, because the prohibition is not engaged and Article 3 is never reached. Stock that the brand never discards and never intends to discard does not become waste at all, and on that footing the destruction definition is not in play either. Part 5 of this series sets out why the boundary between those two positions is not settled.

It is not the only exit. The ten grounds stay open to stock that meets them, and a brand may simply go on holding stock for as long as it wants to. What the route changes is how much stock ever needs a derogation argued for it, and what the file looks like behind the stock that does.

Opera Garment Solutions is a single point of access to a network of professional garment care experts. Every item is inspected and classified before any disposition is decided, and only then is it cleaned and conditioned, with repair reserved for the items that need it. That order is what Article 3 describes for the condition grounds: restocking and repair considered first, and the consideration written down. A test box of a brand’s own stock shows what that record looks like on real inventory.

Questions brands ask about the evidence

How long does a brand keep records of a destruction under a derogation?

Five years from the destruction, under Article 3 of Commission Delegated Regulation (EU) 2026/296. The records must be held in electronic form and put at the disposal of competent authorities within 30 days of a request.

Is a certificate of destruction from a recycler enough to evidence a lawful destruction?

No. Recycling and other recovery, including energy recovery, sit inside the definition of destruction at Article 2(34) of Regulation (EU) 2024/1781, confirmed by Recital 55. A certificate showing a garment was recycled evidences the destruction. It does not evidence that the destruction was lawful. The derogation still has to be established on its own documentation under Article 3.

What does “cost-effective” mean for repair under the ESPR?

Article 1(2) of Commission Delegated Regulation (EU) 2026/296 defines it as the cost of repairing or refurbishing a product not outweighing the total cost of destroying that product and of the materials, manufacturing, packaging, transport, stocking and other administrative or logistical expenses of replacing the same product. The comparator is the full replacement cost, which sets a high bar for a finding that repair was not cost-effective.

How long does stock have to be offered for donation before it can be destroyed?

At least eight weeks. Ground (h) requires the product to have been offered either directly to at least three suitable social economy entities in the Union, or on an easily accessible page of the operator’s own website, for a period of at least eight weeks, without being accepted. It is available only where none of grounds (a) to (g) applies.

Does a charity count as a social economy entity?

Only where it meets all three conditions in the definition at Article 3, point 4i of the Waste Framework Directive, inserted by Directive (EU) 2025/1892: primacy of people and of social or environmental purpose over profit, reinvestment of all or most profits and surpluses to those purposes, and democratic or participatory governance. There is no Union register of qualifying entities, so the brand makes and records the assessment.

What evidence does the damage derogation require?

Article 3 of Commission Delegated Regulation (EU) 2026/296 expects, for the damage and defect grounds, evidence that the product has been subject to quality assessment procedures including visual inspection and sorting that prioritises restocking and repairs. A bulk write-off record does not produce that. A per-garment inspection and disposition record does, and it has to exist at the time of the decision rather than be reconstructed later.

References

• European Commission. Commission Delegated Regulation (EU) 2026/296 on derogations from the prohibition of destruction of unsold consumer products. Adopted 9 February 2026, published in the Official Journal 22 April 2026. Articles 1, 2 and 3.
• European Union. Regulation (EU) 2024/1781 establishing a framework for the setting of ecodesign requirements for sustainable products. Articles 2, 24 and 25, Recital 55 and Annex VII.
• European Union. Directive (EU) 2025/1892 amending Directive 2008/98/EC on waste. Article 1(2), inserting Article 3, point 4i, the definition of a social economy entity, into Directive 2008/98/EC.
• European Union. Directive 2008/98/EC on waste. Article 3, point 16, preparing for re-use.
• European Union. Regulation (EU) 2023/988 on general product safety, referenced by derogation (a).

This article describes the law as we understand it at 8 September 2026. It is not legal advice.