The outgoing French Presidency of the Council of the EU is keen to make maximum progress on the June 2021 proposal for a General Product Safety Regulation (GPSR), which aims to update and replace an outdated EU directive to take account of new technologies and the challenges posed by online trade (see EUROPE 12973/12).
This is reflected in a new compromise proposal it has concocted to facilitate discussion by Member State experts, scheduled for Wednesday 29 June.
While the previous compromise mainly concerned Chapter II on security requirements (see EUROPE 12931/2), this document, dated 24 June and seen by EUROPE, focuses on the new obligations of online marketplaces - a thorny issue in the future regulation, in particular to determine how the GPSR can take into account the horizontal framework and rules established by the Digital Services Act (DSA).
The proposed compromise strives to meet both the objective of effectively protecting consumers from unsafe products sold on online marketplaces and the objective of being legally sound. On this basis, the French Presidency has identified three options.
Option I is an approach strictly aligned with the horizontal framework defined by the DSA, with obligations limited to online marketplaces. While it does not raise legal difficulties, it may raise questions about its effectiveness in combating dangerous products offered for sale.
In this scenario, it is up to economic operators to check that the products they offer online, in particular on online marketplaces, are not already flagged as dangerous on the Safety Gate - the EU’s online rapid alert system (new paragraph 2 of Article 18).
Online marketplaces need only ensure that traders using their interface declare that they have carried out this verification and design their online interface to include this aspect (addition of paragraph 5 of Article 20).
Option II is much more ambitious in terms of consumer protection, but it opens the door to a wide range of legal actions that could call into question its compatibility with the principle of the prohibition of the general duty of supervision, laid down by the E-Commerce Directive and the DSA.
In this scenario, the verification by the online marketplace that the offers do not relate to dangerous products reported on Safety Gate (or other databases designated for this purpose) is mandatory and has to be done in both directions to be complete: new offers have to be checked against existing Safety Gate notifications, and, in addition, any new Safety Gate notification has to be compared with offers of products already listed on the online marketplaces (addition of paragraphs 3a et seq. to Article 20).
For dangerous products already sold, the provisions also provide for a ‘safety net’ in case the necessary recall measures are not put in place by the economic operator. If the economic operator does not carry out the recall, it is then up to the market to act, directly or through a third party (addition to Article 20(6)(a)).
Option III requires online marketplaces to carry out certain targeted checks on offers before they are put online: they must do their best to check that products are not already flagged as dangerous. This obligation is deemed to be fulfilled if the online marketplaces have carried out the verification on the Safety Gate - or on other databases that may have been designated for this purpose - using automatic systems (addition of paragraphs 4a et seq. to Article 20).
In order to ensure that Safety Gate notifications are applicable throughout the EU and taken into account as such by online marketplace providers, a specific provision is suggested in Article 24 to the effect that any notification shall be deemed applicable in the territory of all Member States, unless a Member State objects within 7 working days (addition of paragraph 5a to Article 24).
See the draft compromise: https://aeur.eu/f/2dy (Original version in French by Aminata Niang)