EN Official Journal of the European Union C 271/81

Opinion of the European Economic and Social Committee on the ‘Proposal for a regulation of the European Parliament and of the Council on Consumer product safety and repealing Council Directive 87/357/EEC and Directive 2001/95/EC’

COM(2013) 78 final — 2013/0049 (COD)

2013/C 271/15

Rapporteur-general: Bernardo HERNÁNDEZ BATALLER

On 25 February 2013 the Council and on 12 March 2013 the European Parliament decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the

Proposal for a Regulation of the European Parliament and of the Council on Consumer product safety and repealing Council Directive 87/357/EEC and Directive 2001/95/EC

COM(2013) 78 final - 2013/0049 (COD).

On 12 February 2013 the Committee Bureau instructed the Section for the Single Market, Production and Consumption to prepare the Committee's work on the subject.

Given the urgent nature of the work, the European Economic and Social Committee appointed Mr HERNÁNDEZ BATALLER as rapporteur-general at its 490th plenary session, held on 22 and 23 May 2013 (meeting of 22 May), and adopted the following opinion by 120 votes to 1 with 3 abstentions.

1. Conclusions and recommendations

1.1 The EESC supports the Commission's proposal to establish a legal framework providing a high level of consumer protection and requiring consumer products to be safe.

1.2 The Committee considers a regulation to be the appropriate instrument for this consolidation of existing legal texts, bringing them into line with the new legislative framework for the marketing of products. The regulation will enable the same level of safety to be established in all EU countries, with common criteria.

1.3 As the regulation is the only instrument that allows adoption of the same measures with the same support for the same levels of risk in all the countries of the EU, it is important that it uses terms that can be interpreted in the same vein in all the countries of the EU.

1.4 The EESC feels that, given the importance of standardisation in securing product safety, the Commission should increase support for consumer involvement in the European Committee for Standardisation (CEN) and other similar bodies.

1.5 With regard to full implementation of the internal market, the Committee believes that the proposal is a very important protection measure for consumers in that it reduces the risks of injury or death, restoring confidence; at the same time, the Committee sees the need for transparency and a level playing field in commercial transactions so that those seeking to produce and sell dangerous products do not have an unfair advantage over competitors who shoulder the costs involved in making their products safe.

2. Introduction

2.1 Consumer protection requires that the goods and services made available to consumers do not, when used in normal or foreseeable circumstances, endanger the health of consumers, and, where they do, that they be withdrawn from the market by means of fast, simple procedures. This has been one of the main principles of European consumer protection policy since the 1975 preliminary programme (1). The Council Resolution of 23 June 1986 (2) on the protection and promotion of consumer interests sparked the ‘new approach’ to technical harmonisation and standardisation (3).

2.2 The first directive on general product safety, adopted in 1992 (4), was superseded by European Parliament and Council Directive 2001/95/EC of 3 December 2001 (5), which entered into force on 15 January 2002 with a deadline for transposition into national law by the Member States of 15 January 2004. The EESC commented on this matter at the time (6), endorsing the Commission's approach but expressing reservations on certain points.

2.3 With the creation of the Rapid Alert System for non-food products (RAPEX) a system was established for the circulation of information among the Commission and Member States' authorities on measures taken by these authorities and economic operators in relation to products posing a serious risk to the health and safety of consumers, in order to deal with ‘emergency situations’. In 2004 (7), the Commission adopted specific guidelines to ensure that RAPEX worked properly.

2.4 Although the 27 Member States have transposed the directive into their respective legislation, the methods of implementation have not been the same in all Member States, with discrepancies in some transposition acts, including the following: — the safety assessment aspects provided for in Article 3 of the directive; — as far as traceability is concerned, some Member States have made it obligatory to indicate on the product or packaging the identity and details of the producer (or importer), while other Member States have left this optional; — moreover, in some Member States, notification by producers is required only in the case of a known risk, and there is no obligation to notify when the producer ‘ought to know’ the risk based on available information.

3. The Commission proposal

3.1 The proposal is part of the ‘Product Safety and Market Surveillance Package’, which also includes a proposal for a single market surveillance regulation and a multi-annual action plan for market surveillance covering the period 2013-2015.

3.2 The proposal aims to complement the legislative framework for consumer product safety and the marketing of these products, adopted in recent years in the area of non-food manufactured products but excluding certain products such as antiques. It requires that consumer products be ‘safe’, sets certain obligations on economic operators and contains provisions for the development of standards in support of the general safety requirement. The Commission takes as a legal basis Article 114 of the TFEU, which is the legal basis for the establishment and functioning of the internal market, underpinning the exercising of shared powers between the EU and the Member States.

3.3 The Commission opts for a different legislative instrument, issuing a proposal for a regulation instead of a directive, with the aim of establishing the same level of safety in all EU countries and harmonising regulations in this field, setting out a set of common criteria on the matter without prejudice to sector-specific legislation. The proposal sets out clear, detailed rules which will become applicable in a uniform manner and at the same time throughout the EU.

3.4 The Commission aims to maintain a high level of protection of consumer health and safety, streamlining and simplifying the operation of the safety system and its interface with other EU legislation.

3.5 The proposal repeals Directives 87/357/EC and 2011/95/EC, sharing their content between the two proposals for regulations being drawn up. Thus, the provisions regarding market surveillance and RAPEX that are currently contained in the General Product Safety Directive have been transferred to the proposal for a new single Market Surveillance Regulation, which will bring all market surveillance rules together in a single instrument and in which RAPEX will be the single alert system regarding products presenting a risk.

3.6 Moreover, the proposal lays down the elementary obligations of affected economic operators (manufacturers, importers, distributors) involved in the supply chain of consumer products insofar as they are not subject to corresponding requirements under sector-specific EU harmonisation legislation. Its scope is therefore limited to situations that are not regulated or only partially regulated by sector-specific legislation.

3.7 It takes as a starting point the general principle that all non-food consumer products must be safe when made available or placed on the EU market. The more detailed obligations on economic operators only apply to those operators that are not subject to corresponding obligations laid down in harmonising legislation covering a specific product sector.

3.8 The proposal has been simplified thanks to the introduction of a clear link with sector-specific legislation and simplification of standards. Consumer products that comply with sector-specific EU harmonisation legislation that aims at ensuring the health and safety of persons shall also be presumed to be safe under this proposed regulation.

3.9 In addition, the definitions section has been updated and aligned with the New Legislative Framework for the Marketing of Products. Moreover, the process for identifying existing European standards or asking for the development of European standards that would enable product to be presumed safe has been significantly simplified and aligned with the new overarching framework for standardisation.

3.10 The obligations of economic operators address, among other things, issues related to labelling, product identification, corrective actions to be taken in case of unsafe products and provision of information to the competent authorities.

3.10.1 The proposal requires economic operators to be able to identify the operators who supplied them with the product and their clients. The Commission is empowered to adopt measures requiring economic operators to establish or adhere to an electronic traceability system.

4. General comments

4.1 The EESC endorses the existence of legislation providing a high level of protection of consumer health and safety and, in particular, product safety, and believes that the Commission proposal may contribute to this; however, it calls for the comments made in this opinion to be taken into account in order to clarify the proposal.

4.2 The EESC points out that the comprehensive information given in the proposal's Explanatory Memorandum is not then included in the text of the regulation. Thus, its recitals include statements to the effect that the new proposal applies to all selling techniques, including distance selling, but these are then omitted from the text of the regulation. Given that the legal instrument proposed – which requires the criteria to be standardised in advance so that they can be interpreted in the same way in all the countries of the EU – it would be advisable to include at least a summary reference to these points in the text of the regulation.

4.2.1 The EESC feels that the regulation is relevant and appropriate, as it is the only instrument that allows adoption of the same measures with the same support for the same levels of risk in all the countries of the EU. It is the right instrument for repealing Directives 87/357/EEC and 2001/95/EC, provided that the level of protection established in the two directives is preserved as regards the level of safety required.

4.2.2 This helps provide legal certainty for the market and consumers, which, along with the simplified measures, will reduce the economic cost of adopting the regulation. Its terms should therefore be interpreted in the same vein in all the countries of the EU.

4.2.3 It should be pointed out that the proposal delimits its scope in relation to EU sector-specific legislation. Its general and cross-cutting nature relative to the rest of the sector-specific consumer product safety legislation should therefore be highlighted in Article 1.

4.3 Like the directive, the proposed regulation requires that consumer products be ‘safe’ and sets certain obligations on economic operators and contains provisions for the development of standards in support of the general safety requirement. However, its provisions do not refer to the ‘precautionary principle’ which should govern product safety, which should be included explicitly in the main body of the text.

4.4 Definitions used in the proposal

4.4.1 With regard to the definitions used in the proposal, the EESC believes that some of them need to be revised as, whether for reasons of terminology, translation or differing legal traditions in the Member States, they could cause problems in the future when the regulation is implemented.

4.4.2 The concept of ‘safe’ products is appropriate and includes various aspects that enable products' safety to be assessed in terms of circumstances of which the consumer ought to be aware, such as product life, nature and composition. However, the word ‘product’ should be preceded by the word ‘manufactured’.

4.4.3 Similarly, the terms ‘normal’ and ‘reasonably foreseeable’ could lead to some confusion, as the ‘reasonableness’ criterion could suggest that any product can be included, even if it is not safe, provided that it is used properly.

4.4.4 It may be that the word ‘normal’ should be replaced with the word ‘usual’, or, possibly, that this ambiguous description be transferred to the consumer for whom the product is intended. To this end, we recommend replacing the term in question with ‘unsafe product’, as this would align the concept with that contained in the Directive concerning civil liability for defective products (8) – in relation to which it would be advisable to standardise Member States' legal frameworks, although in this field the concept of product is broader.

4.4.5 With regard to the term ‘authorised representative’, it should be pointed out that the use of the word ‘mandate’ could give rise to disputes in the future in those countries which require a pre-mandate agreement to be signed, and so it would be appropriate to replace it with ‘written mandate’, which leaves countries free to choose the contractual formula that is most in line with their domestic law and, at that same time, prevents possible future problems of a contractual nature.

4.4.6 With regard to the definition ‘serious risk’, it would be more advisable to extend it to any ‘exposure to risk, emergency or danger’, which would be easier for consumers to interpret; in other words, the ‘serious risk’ should be linked to the need to take immediate action and adopt measures as soon as the risk becomes known.

5. Specific comments

5.1 The proposal attaches particular importance to the need to unify and simplify the requirements for economic operators, and the EESC fully endorses this, given the confusion affecting both economic operators and national authorities.

5.2 In Article 4 the following text should be added: ‘under the conditions established later in this regulation’, as the concept of safety may not tally with the provisions laid down in other sector-specific rules.

5.3 The extent to which services are included in the scope of the regulation needs to be clarified in the text of the proposal. However, the EESC hopes that the Commission will present a complete proposal on the safety of services in the EU.

5.4 With regard to the reference to ‘vulnerable’ consumers in Article 6 d), it should be made clear whether the concept of vulnerable consumer is based on a general factor (age, health, etc.) or depends on the product characteristics (insufficient awareness). The EESC believes that in order to make EU law more consistent, self-standing concepts that apply across all EU law should be used and separate concepts should not be established for each and every legislative proposal.

5.5 Article 6(2)(h) refers to reasonable consumer expectations concerning safety. The term ‘reasonable’ should be qualified with phrases such as ‘in terms of its nature, composition and intended use’. This would give the article greater legal certainty.

5.6 The EESC believes that consumers have the right to clear and precise information on the origin of products, which should in all cases bear an indication of their specific provenance in line with the provisions of EU law.

5.7 Furthermore, the wording of this provision should be revised to the effect that manufacturers and importers must ‘ensure’ compliance with the requirements laid down therein.

5.8 Obligations of manufacturers and other operators

5.8.1 The proposal lays down rules on the drafting of documentation by manufacturers and the steps they have to take to maintain consumer safety. The EESC sees these as important.

5.8.2 These specific obligations consist of sample testing of products made available on the market, investigating complaints and keeping a register of complaints, non-conforming products and product recalls, and keeping distributors informed of any such monitoring.

5.8.3 However, the proposal does not specify implementing procedures, leaving it up to each Member State to manage the measures they have to take as if they were merely setting up a special register. It would be preferable to harmonise these measures with a view to securing a warning system that allows the market to be informed early enough to be able to take effective measures before damage is done.

5.9 Technical documentation

5.9.1 The consumer information requirement should refer solely to matters related to the use and nature of products and not be extended to ‘technical documentation’, which can contain information on trade secrets and other confidential manufacturer information which should be available to the authorities, with clear rules to this end that the proposal fails to include.

5.9.2 As the text appears to make the manufacturer responsible for any damage an unsafe product may cause, it would be more appropriate to state that the content of the technical documentation should be valid for ten years. To make things clearer, in Article 8(6) the words ‘manufacturers shall ensure’ should be replaced with ‘manufacturers shall be responsible for ensuring’, which would be more in line with the obligation incumbent upon them. The same should apply, with the necessary modifications, to importers and their responsibility, along with the requirement to keep the technical documentation for 10 years, as other economic operators have to.

5.9.3 In order to enable consumers to exercise their right to information on a specific product without any kind of hindrance, it would be advisable for the possibility laid down in Article 8(7) – which requires the manufacturer to indicate a single address at which they can be contacted – not to be burdensome for the consumer, to avoid giving the impression that using it would mean being penalised.

5.10 With regard to products appearing to be other than they are, the EESC calls for maximum protection, particularly for products which look like toys, which should be subject to the provisions of the Toy Safety Directive, to ensure a higher level of protection for minors.

5.11 The EESC endorses the need for traceability of products throughout the entire supply chain, as this helps to identify economic operators and to take effective corrective measures against unsafe products, whether recalls or, where necessary, withdrawal from the market.

5.12 With regard to the European standards providing presumption of conformity, the EESC considers that the proposal improves the way that the system currently works. However, the transitional provisions and presumption of conformity need to be made clearer in order to provide greater legal certainty.

5.12.1 Given the importance of standardisation, the EESC considers that European standardisation bodies should have the necessary resources to increase their productivity and ensure high quality; more effective representation of consumers is also needed.

5.13 In principle, the rules on delegated acts seem reasonable, although it does not make sense for the power to adopt them to be granted indefinitely. Moreover, delegated acts should not be adopted on key issues and should keep within the boundaries of the original act. They should be used first and foremost before dangerous products are made available on the market. It therefore seems sensible for delegated acts to be adopted in the cases referred to in Article 15(3)(a) of the proposal, whereas the cases envisaged in subparagraph (b) are more dubious.

5.14 As regards penalties, it should be stressed that the EESC is in favour of harmonising the types of infringement and the corresponding penalties (9), as simply making an across-the-board call for these penalties to be effective, dissuasive and proportionate could lead to distortion in the operation of the market.

5.14.1 Lastly, the EESC believes that in order to implement the provisions of the regulation benefiting consumers the Member States should have access to proper, effective means of redress from the relevant courts.

Brussels, 22 May 2013. The President of the European Economic and Social Committee Henri MALOSSE

(1) Council Resolution of 14.4.1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy. OJ C 92, 25.4.1975, p. 1.

(2) OJ C 167, 5.7.1986, p. 1.

(3) Based on the Council Resolution of 7.5.1985, OJ C 136, 4.6.1985, p. 1.

(4) OJ L 228, 11.8.1992, p. 24.

(5) OJ L 11, 15.1.2002, p. 4.

(6) OJ C 367, 20.12.2000, p. 34.

(7) Commission Decision 2004/418/EC (OJ L 151, 30.4.2004, p. 84).

(8) OJ L 210, 7.8.1985, p. 29.

(9) In the same way as Regulation (EC) 1071/2009, for instance (OJ L 300, 14.11.2009, p. 51).