Goodbye to unsafe products?
Regulation (EU) 2019/1020 (OJ L 169, 25.6.2019, pp. 1–44) consolidates the EU-wide framework for market surveillance and adapts it to new circumstances. It enters into force on the twentieth day following its publication in the Official Journal and applies from 16 June 2021, or in parts already from 1 January 2021.
Scope
The Regulation applies in principle to all products placed on the market in the Union, unless there are more specific provisions pursuing the same objectives. In addition to products subject to EU harmonisation legislation, it also covers all other products imported into the EU from a third country and intended to be freely disposed of in the Union.
Key content
In addition to measures designed to make cooperation between market surveillance authorities more efficient and intensive, the existing regulations for ensuring the conformity of products with EU harmonisation legislation are being revised, particularly in light of the growth in online trade and global supply chains, and the powers of the authorities in this regard are being clarified.
According to the regulation, a product is already considered to be made available on the market and must comply with EU harmonisation legislation if it is offered for sale to end users in the EU online or via another form of distance selling. However, the mere accessibility of the offer within the EU is not sufficient. What matters is whether the offer is actually directed at the EU internal market, which can be determined, among other things, by possible delivery regions, available languages or payment methods.
Furthermore, the activities of market surveillance authorities are being extended to new types of supply chain links. These include, in particular, so-called ‘fulfilment service providers’, which perform tasks similar to those already defined for importers, but do not fully meet the definition of an importer. The Regulation now defines ‘fulfilment service providers’ as any natural or legal person who, in the course of their business activities, provides at least two of the following services for products to which they have no ownership rights: warehousing, packaging, addressing and shipping.
The aforementioned ‘fulfilment service providers’ are grouped together with manufacturers, importers or authorised representatives under the term ‘economic operator’. If no other economic operator already fulfils the obligations of the Regulation, this is the responsibility of the fulfilment service provider. This includes, in particular, ensuring that the EU declaration of conformity and technical documentation have been drawn up, reporting risky products to the authorities and cooperating with them to eliminate risks. In addition, they must indicate their name or trademark on the product, packaging, package or accompanying documents.
With regard to products entering the Union market, Member States should also establish appropriate control measures. Specifically designated authorities should carry out risk-based controls and, where necessary, take effective measures to counteract any risks posed by products entering the Union market.
Practical information
For the newly defined economic operators in particular, the Regulation may mean a significant increase in obligations and corresponding regulatory activities. Appropriate structures should be put in place at an early stage to ensure that these obligations can be met properly.
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