Final negotiations begin on new rules to keep unsafe products out of Single Market

While the adoption of the Digital Services package has grabbed most of the recent headlines, the EU institutions have also made significant progress on a new set of rules to ensure that only safe products are available in the Single Market both online and in traditional stores. The European Parliament and the Council of the EU adopted in June and July, respectively, their positions on the General Product Safety Regulation (GPSR). This meant that the “trilogue” negotiations between the Commission, Parliament and Council could begin with a first meeting on 15 September. Two further meetings are scheduled for November so that the co-legislators can continue their work to reach a final compromise text.

Originally proposed by the European Commission in June 2021, the draft GPSR updates the General Product Safety Directive which dates from 2001. The Directive was considered no longer suited to address current digital marketplaces and new technologies. Transforming the Directive into a Regulation, which is directly applicable on Member States, should also provide for a more harmonised legal framework.

The draft GPSR proposes a new definition of a ‘product’ to include the increasing connectivity of electrical and electronic consumer products. This reflects the rising importance of interconnectivity and e-commerce in the two decades since the original Directive was adopted.

Highlights of the proposed Regulation

According to the proposed Regulation, manufacturers, authorised representatives, importers and distributors will face detailed obligations including the following:

• Economic operators will need to designate a responsible person for products placed on the Union market;
• Economic operators will have to cooperate with market surveillance authorities regarding risk mitigation in relation to their products;
• Traceability requirements will be introduced for products “susceptible to bear a serious risk” to the health and safety of consumers;
• Specific obligations will apply to economic operators in case of distance sales and accidents related to products;
• Additional obligations will be introduced for providers of online marketplaces e.g., to designate a single contact point (in line with the DSA) and to remove content within strict deadline after being notified of an illegal listing of a dangerous product;
• In case a dangerous product needs to be recalled or there is a safety warning, economic operators and online marketplaces would be required to inform consumers and widely disseminate the information online; and
• Rules on the recall of products, on food imitating products, and on consumer remedies will be improved.

Additionally, the European Commission will further develop and maintain its rapid alert system, known as the “Safety Gate”, for the exchange of information on corrective measures concerning dangerous products. Both the Commission and Member States are expected to participate in the eventual enforcement of the Regulation.

The original proposal of the Commission and the respective positions adopted recently by the European Parliament and the Council differ in some respects. For instance, the Parliament advocates for a deadline of one day for online marketplaces to disable access to dangerous products when sufficient information is provided by the market surveillance authorities, while the Commission’s proposal had proposed between two to five days.

Regarding penalties, failure to comply with the new rules can lead to fines of at least 4 per cent of the annual turnover of the economic operator in the Member States concerned according to the Commission’s proposal, while the Parliament stated that penalties can reach up to 4 per cent of annual turnover. Meanwhile the Council is less prescriptive and leaves the rules on penalties up to Member States to lay down, so long as the measures are “effective, proportionate and dissuasive”. These differences will need to be resolved during the negotiations.

Next Steps

The next “trilogue” meetings will take place on 8 and 28 November.

For more information, please contact Francine Cunningham