New rules will prohibit certain goods from being sold in the European Union (EU) and Northern Ireland (NI) unless an economic operator established in either the EU or NI is identified as being responsible for certain product compliance matters. The new rules apply from 16 July 2021 and will impact exports to the EU and NI, including those from Great Britain, as explained below.
EU Market Surveillance Regulation
The Market Surveillance Regulation 2019/1020 (the "Regulation") is European legislation that directly applies in all EU member states from 16 July 2021. The Regulation will also apply to NI as it is still part of the EU Single Market under the NI Protocol agreed as part of the UK's exit from the EU.
The Regulation introduces a number of measures intended to strengthen product compliance controls at the EU borders and improve the traceability of products.
This includes a requirement that certain goods can only be placed on the EU or NI market if there is an 'economic operator' established in the EU or NI who is responsible for the following tasks in respect of that product:
- verifying that the required conformity documentation (such as declarations of conformity and technical files) has been prepared and ensuring that such documentation is available upon request;
- cooperating with market surveillance authorities; and
- notifying authorities in relation to any relevant safety or compliance issues.
The 'economic operator' responsible for these tasks can be one of the following:
- the manufacturer if they are based in the EU or NI; or
- the importer, based in the EU or NI; or
- the manufacturer's appointed representative based in the EU or NI; or
where none of the above exist, the fulfilment service provider based in the EU or NI.
A fulfilment service provider is defined in the Regulation as a business providing at least two of the following services: warehousing, packaging, addressing and dispatching, without having ownership of the products involved. It does not include businesses which only provide postal services and other freight transport services.
This might be the case if, for example, a business based in Great Britain sold goods directly to consumers via an online platform and used the services of a fulfilment service provider based in the EU to store, package and despatch the goods.
Unlike importers and authorised representatives, a fulfilment service provider will not currently have contractual arrangements in place covering their obligations as the economic operator. . Affected manufacturers and distributors currently using such providers will therefore need to consider what arrangements they wish to put in place prior to the Regulation coming into effect. ).
Do you have to identify the responsible economic operator on the product?
The name and contact details (including the postal address) of the responsible economic operator referred to above must be stated on the product, its packaging, the parcel or an accompanying document, such as on the Declaration of Conformity.
Do the requirements outlined above apply to all products?
The requirement to have an economic operator established in the EU or NI, only applies to certain types of CE marked products as listed in Article 4 of the Regulation. The list covers products which fall under the EU legislation governing:
- construction products
- personal protective equipment
- gas appliances
- eco-design requirements for energy-related products
- restriction of the use of certain hazardous substances in electrical and electronic equipment (ROHS)
- recreational craft and personal watercraft
- simple pressure vessels
- electromagnetic compatibility (EMC)
- non-automatic weighing instruments
- measuring instruments
- equipment and protective systems intended for use in potentially explosive atmospheres (ATEX)
- low voltage electrical equipment
- radio equipment
- pressure equipment
Has the same position been adopted in respect of goods exported to Great Britain?
Legislation has not been passed to adopt the requirements set out in the Regulation into GB national laws. The requirements of the Regulation will therefore not apply to goods placed on the GB market from 16 July. However, for certain products there are already provisions in place under UK law requiring the name and contact details of the importer or authorised representative based in GB to be stated on the product or its packaging, as set out in the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, as amended.
It is understood that the government is considering the issues raised in the Regulation as part of the wider 'UK product safety review: call for evidence'. The deadline for responses to this call for evidence is 3 June 2021. We therefore expect the approach to be taken in respect of goods placed on the GB market to be clarified later in the year.
Should you have any queries regarding the issues raised above, please contact Ashley Borthwick or Nicky Strong, who have been advising on these issues.