On 29 June 2022, the EU Commission published its long-awaited revision of the Blue Guide. This well-known guide for implementation of the EU product rules is non-binding, but rather serves as an interpretation aid for uniform application of the EU’s harmonization legislation. The revision of the Blue Guide is based on the previous editions, while also taking into account legislative developments and the provisions of the new Market Surveillance Ordinance, Regulation 2019/1020, as well as the distribution of products via e‑commerce.
The scope of the 2022 Blue Guide has been extended in order to include legislation which has been newly enacted or revised since 2016 (such as e.g. Regulation 2019/945 on unmanned aircraft system (drones)). On the other hand, the provisions of the Product Safety Directive and food legislation are now expressly excluded from the scope of the Guide.
In the interests of clarity, the statements in the Blue Guide with regard to “product coverage” are divided into two sections, one for product scope and another for repairs and modifications to products, supplemented by additional explanations such as a clearer definition of “substantial modification.” The Guide also includes a section relating to software. This section also explains that software updates can be assimilated to maintenance operations provided that they do not create a substantial modification (which is once again defined).
Since the 2022 Blue Guide focuses more closely on the unique circumstances of distance and online sales, it contains more detailed statements concerning the placement of products on the market using these distribution methods, including cases where a fulfillment service provider is involved. The latter category was introduced by the Market Surveillance Regulation, extending the group of economic operators who may be subject to enforcement measures within the EU, which should ensure a higher degree of protection.
The further consequences and unique circumstances arising from the Market Surveillance Regulation, Regulation 2019/1020, are reflected in a more comprehensive revision of Chapter 7 of the Guide. Making reference to the corresponding provisions, the Guide now contains new and/or revised text with respect to e.g. the scope of the Regulation, the organization of market surveillance, checks performed by the market surveillance authorities and the handling of products from third countries which are regarded as non-compliant by the border authorities.
Finally, the Guide addresses the impact of the United Kingdom’s withdrawal from the EU. As of 1 January 2022, manufacturers or importers established in the UK are no longer considered to be economic operators established in the EU. Since UK bodies have lost their status as EU Notified Bodies, any certificates they may have issued in the course of conformity assessment procedures for products which are placed on the market in the EU as of 1 January 2021 are no longer valid. Certification from a EU Notified Body is now required.
The revised 2022 Blue Guide now contains explanations with regard to distance and online sales, as well as additional interpretation aids relating specifically to software and software updates. This is long overdue, since these forms of distributions have become an integral component of economic activity. The participating economic operators must therefore be provided with a guide which they can consult in order to gain a better understanding of their requirements. However, it remains to be seen whether the 2022 Blue Guide will be able to answer most of the questions which arise in practice.back