The general meaning of "update" in Commission Regulation (EU) 2023/1670 can be derived from the definitions of "security update," "corrective update," and "functionality update" in the Regulation, and the ordinary meaning of the term "update". In this context, an operating system update under Commission Regulation (EU) 2023/1670 refers to any modification or release, including corrective and security patches, whose main purpose is to provide enhanced security for the device (security update); whose purpose is to provide corrections to bugs, errors or malfunctions in the operating system (corrective update); and/or whose main purpose is to implement new functionalities (functionality update). This encompasses minor, major updates and upgrades from one version to another.
Pursuant to the Regulation, if economic operators provide security updates, corrective updates or functionality updates to an operating system they have to make such updates available at no cost for all units of a product model with the same operating system. This obligation applies from the date of end of placement on the market to at least 5 years after that date.
This requirement should be interpreted in light of recital 7, which states, “In order to improve the reliability of devices, therefore, it needs to be ensured that users keep receiving such updates for a minimum period of time and at no cost, including for a period after the manufacturer stops selling the relevant product model.” Thus, the requirement to provide updates is meant to improve the reliability of devices and to prevent premature obsolescence.
Therefore, if an operating system update that is provided for one (or a range of) product model(s) (model A) is incompatible with another product model (model B) using the same operating system only for reasons of differing hardware features, the update does not need to be provided to the latter model (model B), for what concerns exclusively those incompatible features.
Disclaimer: Please note that the European Commission cannot provide a legally binding interpretation of the EU legislation, as this is the sole competence of the European Court of Justice. Any remarks from the European Commission services are without prejudice to the position the Commission might take should related cases arise in a procedure before the Court of Justice.