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Objective and scope
The proposal lays down essential rules on the safety of consumer products placed or made available on the EU market.
It is essentially a safety net for all products falling under its scope of application. There are many vertical legislations covering safety risks, but the Commission explains that they can never cover all consumer products or risks. Therefore, a horizontal legislation is still needed.
The legislation applies to manufactured non-food consumer products, as it was already the case for the GPSD. The requirements laid down in the legislation also apply to second-hand products or products that are repaired, refurbished or recycled (except antiques).
Products offered for sale online are deemed to be made available on the EU market if they target consumers in the EU (ex: delivery to the EU, use of one of the official EU languages).
The proposed legislation does not cover risks that are already covered by sectorial legislations, such as the AI Act. Services are not covered by the proposal either.
The proposal clarifies that cybersecurity risks that have an impact on the safety of consumers are covered by the concept of safety as stated in the proposed regulation.
General safety requirement
The general safety requirement is that economic operators shall only place or make available on the market safe products.
Presumption of safety
A product shall be presumed to be in conformity with the general safety requirement in the following cases:
-conformity to relevant European standards published in the Official Journal of the EU;
-in the absence of European standards, as regards the risks covered by health and safety requirements in national law, if it conforms to such national requirements.
The Commission will adopt implementing acts to determine the specific safety requirements that are necessary to ensure that products which conform to the European standards satisfy the general safety requirement.
When presumption of safety does not apply
In Article 7, the Commission lists the aspects that shall be taken into account when the presumption of safety does not apply. This includes “the appropriate cybersecurity features necessary to protect the product against external influences, including malicious third parties, when such an influence might have an impact on the safety of the product”. This also includes the evolving functionalities of a product.
For assessing whether a product is safe, the following elements shall be taken into account: European standards not published in the Official Journal of the EU, international standards, voluntary certification schemes or similar third-party conformity assessment frameworks, national standards, state of the art etc.
New technologies
The proposal states that health is not only the mere absence of disease or infirmity, but also “a state of complete physical, mental and social well-being”. Therefore, the legislation needs to take into account the health risks brought by new technologies, including psychological risks and development risks, in particular for children, mental risks, depression, loss of sleep or altered brain function.
Obligations of economic operators
The legislation provides for different obligations corresponding to the role of each operator: manufacturers, authorised representatives, importers, distributors.
An economic operator that places a product on the market under its own name or trademark, or modifies the product in a way affecting conformity, is considered the manufacturer.
When economic operators face a choice of various corrective measures, they shall choose the action resulting in the lowest environment impact, provided that the safety level is not lowered. For instance, this can be the repair of the product.
The product needs to be safe over its entire lifespan. Therefore, the economic operator shall periodically carry out sample testing of randomly chosen products made available on the market.
Online sales
There are specific obligations in case of distance sales. In this case, if the manufacturer is not established in the EU, it shall clearly indicate the contact details of the responsible person, as well as information to identify the product (type, batch or serial number and any other identifier).
The legislation also regulates online marketplaces. They shall establish a single contact point allowing for direct communication with Member States’ market surveillance authorities in relation to product safety issues. Member States have the power to order an online marketplace to remove specific illegal content referring to a dangerous product or to display a specific warning.
Market surveillance
The new legislation aims to close the gap with regulation 2019/1020 on market surveillance for harmonised products. Many provisions of the 2019 regulation also apply in the context of the general product safety regulation.
Cases of accidents or safety issues
The manufacturer shall notify an accident within two working days from the moment it knows about it. The notification is addressed to the competent authorities of the Member State where the accident has occurred. Notification takes place through the Safety Business Gateway.
The Safety Business Gateway is a web portal enabling economic operators to provide market surveillance authorities and consumers with the required information. The Commission will maintain this web portal.
Importers and the distributors which have knowledge of an accident shall inform the manufacturer.
The Commission will further develop and maintain a rapid alert system for the exchange of information on corrective measures concerning dangerous products: the Safety Gate. The Commission and the Member States have access to the Safety Gate.
A Safety Gate portal is set up to inform the general public. Consumers have the possibility to inform the Commission of products presenting a risk through this portal.
Product traceability
For certain products bearing a serious risk to health safety of consumers, the Commission may require economic operators who place those products to establish or adhere to a system of traceability. The traceability shall consist in the collection and storage of data, including by electronic means, enabling the identification of the product, its components, or the involved economic operators in the supply chain.
Recall of products
The legislation aims to make the recall of products more effective. Economic operators shall now directly notify all affected consumers that they can identify. If they collect their customers’ personal data, they shall make use of this information for recalls and safety warnings.
Standardisation
The proposal provides for some amendments to Regulation 1025/2012 on standardisation. These amendments to Regulation 1025/2012 are needed as the proposal requires the adoption of specific safety requirements and standards adopted cannot be assimilated to harmonised standards and are therefore “European standards”.
The Commission should request one or several European standardisation organisations to draft or identify a standard which is suitable to ensure that products which conform to it are safe.
An amendment also introduces the possibility for Member States or the European Parliament to inform the Commission that they consider a harmonised standard or European standard -drafted in support of this legislation or EU harmonisation legislation- does not entirely satisfy the requirements. Subsequently, the Commission may decide not to publish or withdraw the standard from the Official Journal of the EU.
Penalties
The proposal states that Member States shall lay down applicable penalties in case of infringement (Article 40).
Next Steps
The proposal will be examined by the European Parliament and the Council.
If you have any questions on this topic, please do not hesitate to contact Camille Dornier - Policy Manager: camille.dornier@eurosmart.com
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