Work will intensify in the EU Council on the European Commission’s proposal for an EU regulation on general product safety, presented at the end of June, to adapt the outdated 2001 EU legislation (Directive 2001/95/EC) to the digital age and to take account of the risks associated with new technologies.
The aim of this proposal is to ensure that only safe products can be placed on the EU market, whether they are sold online or in shops and regardless of their country of origin (inside or outside the EU).
MEPs debated this for the first time in committee on 11 January (see EUROPE 12865/10).
On the EU Council side, part of the text was the subject of a compromise proposal by the French Presidency, which was submitted to the EU Member States’ delegations on 20 January.
Judging by this text, dated 14 January and very close to the proposal on the table, the main concern is to strengthen it by clarifying it, mainly to guarantee maximum legal certainty for economic operators, while ensuring a high level of consumer protection.
To this end, several recitals have been added to the proposed Regulation, and definitions have been clarified. The purpose of the Regulation itself (Article 1) has been amended. It refers to essential rules on the general safety of products placed or made available on the market, and no longer to the general safety of consumer products.
More precise definitions. The proposed compromise text clarifies, inter alia, that ‘product’ means any tangible or non-tangible article placed or made available on the market, whether or not for consideration, including in the context of the provision of a service, and which is intended for consumers or which can, under reasonably foreseeable conditions, be used by consumers, even if not intended for them.
A new recital stresses that, given the potential risk posed by non-tangible elements such as software, not only when integrated into another product, but also as stand-alone elements, the definition of ‘product’ should be as broad as possible to include them.
Another states that, in determining whether a product is safe, the various actors should take into account not only the normal conditions under which the product is intended to be used, but also its foreseeable conditions of use. This means that economic operators must take into account the possibility that the product will be misused, where such misuse is reasonably foreseeable. A product that can be expected to be misused may be placed on the market, provided that it is accompanied by certain safeguards, such as warnings or other measures. In any event, reasonably foreseeable misuse of the product shall not include reckless, malicious or criminal behaviour.
On the importance of standardisation and the use of European standards covering certain products and risks for the proper implementation of the Regulation, a paragraph was added. It clarifies that, where different risks or risk categories are covered by the same standard, a product’s compliance with the part of the standard covering the relevant risk or risk category would also give the product a presumption of safety.
With regard to third country online sellers, a new recital clarifies that, in order to establish whether the seller’s offer is targeted at consumers or other end-users within the EU for the purpose of assessing whether a product is placed on the EU market, the assessment must be made on a case-by-case basis, based on the case law of the Court of Justice of the EU (international character of the activity, use of a language and currency of the EU Member States, etc). (Original version in French by Aminata Niang)