Opinion of the Economic and Social Committee on the "Proposal for a directive of the European Parliament and of the Council on General Product Safety"

(2000/C 367/11)

On 24 July 2000, the Council decided to consult the Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 19 July 2000 The rapporteur was Mrs Williams.

At its 375th plenary session (meeting of 20 September 2000), the Economic and Social Committee adopted the following opinion by 78 votes to none and 4 abstentions.

1. Introduction

1.1. The original General Product Safety Directive (GPSD) came into force in June 1994. It followed a sequence of single-subject (or sectoral) Directives such as the Toy Safety Directive and took as its base the need to achieve "a high level of protection". Consumer health and safety have since become one of the new political priorities in the European Union.

1.2. Article 16 of the 1994 GPSD states that "the Council shall decide whether to adjust this Directive, in particular with a view to extending its scope", as well as emergency provisions. This Decision of the Council was to be guided by the Commission's report, expected in 1998, on the experience acquired, together with appropriate proposals for improvement.

1.3. Unfortunately, this report did not appear at the specified time, so the Committee reacted forcefully: in December 1999 it produced in a spirit of constructive criticism its Own-initiative Opinion(1). It pointed out that, in addition to the establishment of the Internal Market, there have been major changes, developments and significant crises since the Directive first came into force. These need urgently to be taken into account. The Committee nevertheless concedes that the delays had a basis in the exceptional amount of wide-ranging consultations, reviews and assessments which the Commission undertook, particularly the report produced by the Centre du Droit de la Consommation at the University of Louvain-la-Neuve.

1.4. In general, the Committee welcomes the Commission's attempts to prevent unsafe products reaching the markets, but has some reservations about its new proposal. It notes that the method of approach is not to produce a completely new text but rather to recast the original GPSD, using the former structure but introducing amendments which are clearly indicated by underlining in the Commission's document. This practical format is likely to be more familiar to all involved in the application or enforcement of product safety legislation, including the "candidate" countries.

1.5. Though the Commission's original overall approach appears fundamentally sound, some of the proposed changes are far-reaching and will need to be clarified as they are transformed into workable proposals.

2. General Comments

2.1. What the new GPSD sets out to do

2.1.1. The GPSD deals with products intended for use by consumers or likely to be used by consumers. It includes services only when these are directly associated with the supply of the product itself. It is the product which remains dominant (as in the case of hired goods).

In particular, such services are those provided for assembly, installation and maintenance of a product. As for services in general, the Commission intends to approach safety in this diverse sector separately, either by means of a general regulatory framework or by legislation in specific sectors and not through the GPSD.

2.1.2. There is no alteration to the basic aim of the GPSD, which quite clearly remains "to ensure that products placed on the market are safe." The duty of producers and distributors is to supply products which under normal or reasonably foreseeable conditions of use present no risks or only minimal risks compatible with the type of product concerned.

2.1.3. The Directive continues to apply to all consumer products except second-hand products which are sold either as antiques or to be reconditioned before use. All other second-hand goods are covered. Food, except where it is already subject to more specific provisions, is also included.

2.1.4. The major amendments to the original Directive concern the following subjects: definitions, scope, the increased role of standards and standardisation bodies, withdrawal, recall and banning of exports of dangerous products, rapid exchange of information in emergency situations, co-ordination and collaboration of enforcement authorities and the setting up of an appropriate regulatory committee and product safety network.

2.1.5. The Commission attempts to reinforce the present regime; in other words, to provide greater legal certainty by clarifying and simplifying its text and removing contradictions and ambiguities. The Committee agrees that such clarification is vital: the Louvain-la-Neuve report, whose analysis of practical applications reveals widespread shortcomings in the implementation of the existing Directive, pointed out that one would need a degree in European law to understand much of the original Directive.

2.1.5.1. The Committee questions whether the Commission's new proposal on the Precautionary Principle (which is not mentioned in the new GPSD text) conflicts with the concept of legal certainty. Where scientific evidence is lacking or inconclusive, the Precautionary Principle may be invoked. Accordingly, bans may be introduced where there is a potential risk of serious damage to human beings. The intention is to ensure that suspected risks are satisfactorily controlled regardless of legal uncertainty. The presumption must be that there is always an element of risk present.

2.1.6. The Committee agrees with the Commission's emphasis on the need for transparency and fairness whereby those who attempt to produce and sell dangerous goods no longer have an unfair advantage over competitors who accept the costs incurred with building safety into their goods.

3. Specific Comments

3.1. The Commission usefully groups its 22 Articles, followed by several explanatory annexes, under the following seven slightly amended chapters:

- Objective, scope and definitions

- General safety requirement, conformity assessment criteria and European standards

- Other obligations of producers and obligations of distributors

- Specific obligations and powers of the Member States

- Exchanges of information and rapid intervention situations

- Committee procedures

- Miscellaneous and final provisions

3.1.1. The Committee notes the exceptional length (twenty pages) of the explanatory introduction and also notes the special significance of the preamble (39 recitals). These recitals are generally substantive and less legal in tone than the Articles which follow them. Some include points which are not mentioned under any of the Chapters: for example, the new proposal applies to products irrespective of the selling technique, including distance and electronic selling (7).

3.1.1.1. This introduction is an essential reference document but is not easy to consult: it is difficult to follow the text of the actual proposal and at the same time to consult the introduction. Indeed, the introduction could well have used the Chapters as major headings, and certainly should make clear at a glance whether the reference is to the original GPSD or to the new version.

3.2. Chapter I: Objective, Scope and definitions (Articles 1 and 2)

3.2.1. Article 16 of the original GPSD pointed to the possibility of extending the scope of Article 1. The Committee welcomes progress towards the clarification of a text which previously caused uncertainty, disagreement and a lack of awareness of its practical applications. The relationship between the sectoral Directives and the GPSD, which offers consumers a safety net, is now much clearer. The Committee considers, however, that the wording chosen concerning the inclusion of services ("insofar as consumer product safety aspects under reasonably foreseeable conditions of use of those products are concerned" - Article 2.a) needs to be much clearer to be of any practical use to manufacturers. The revised proposal aims to protect people despite any gaps in specific product safety rules drawn up to remove technical barriers to trade. In short, it is essential that all products likely to be used by consumers must be covered, with the GPSD filling any gaps that need to be resolved in the context of those sectoral directives which provide the necessary comprehensive cover.

3.2.1.1. The Committee also seeks clarification of the position of the essential supply utilities, such as electricity, regarding their inclusion as products. It suggests a reference to the Consumer Guarantees Directive and the Liability for Defective Products Directive.

3.2.2. The Committee notes that products originally intended and supplied solely for professional use may in some cases migrate to the domestic market which can be either consumer-led or the result of direct promotion by suppliers. In either case, there is a foreseeable possibility that a product may eventually be used by a person who is likely to lack professional knowledge and experience. Such products currently include laser pens, chain saws and other specialist do-it-yourself equipment, as well as paints and pesticides. The Committee therefore points to the need for producers and suppliers to take all reasonable and necessary steps when packing and labelling their goods to provide clear instructions and safety warnings in case of use by non-professionals.

3.2.3. The Committee endorses the inclusion of the elderly among consumers most at risk, but regrets the omission of its other suggestion that the needs of disabled consumers should be taken into account wherever reasonably possible.

3.2.4. The Commission adds a new definition relating to competent authorities, designated by Member States, who will carry out the tasks outlined in the proposal. Previously neither European nor national legislation have included obligations on producers and distributors to inform these authorities about product recalls.

3.2.5. The Commission now defines "recall" but does not also define "withdrawal", presumably because of linguistic problems in different languages. A clear distinction should be made between the two possible stages of dealing with dangerous products: the first stage ("withdrawal") is the regulated removal of affected goods from shops, warehouses and factories, whereas the second stage ("recall") is the retrieval, as a last resort, by suppliers and producers of goods already bought and used by consumers. In cases of unacceptably high risks to safety, it is also important to provide adequate warning to consumers so that they also can take any necessary action.

3.2.6. The Committee underlines the new significance now given to the word "risk", increasingly used in the context of risk assessment and management. Whilst it is acknowledged that there is no such thing as zero risk, consumers nevertheless accept risks because of potential benefits that products may offer. It must be made clear that such depends on the changing attitudes of society i.e. the amount of risk people are prepared to tolerate. Expectations of safety continually rise.

3.2.7. The Committee suggests that Article 2 should also require safe and environmentally-satisfactory disposal of products (e.g. fluorescent lighting tubes, aerosol cans, insulating materials and electronic waste). The Committee acknowledges, nevertheless, that environmental aspects are not covered by the GPSD, because they are already covered by national and EU legislation.

3.3. Chapter II: General safety requirement, conformity assessment and standards

3.3.1. Standards are an essential part of consumer protection, provided that safeguard clauses exist in case a standard does not provide an adequate level of protection. The Committee therefore endorses the proposal to strengthen the role of European standards - and standards organisations - by establishing the conformity of products to the general safety requirement of the GPSD. The priority must be on those products which are most relevant to consumer safety.

3.3.2. The Committee stresses the need for clarification of the status of European standards. There must be a coherent integration of national standards' regimes and a clear understanding of the role of non-formal standards such as technical specifications. The Committee notes that the onus is on suppliers to justify the basis on which the claim of safety is made wherever a product does not meet all relevant standards but is deemed to be safe. Suppliers can also use alternative approaches to complying with existing standards, provided that these approaches enable them to reach higher levels of safety than are offered by these standards. Suppliers would however be liable if their claims could not be substantiated, as they are already covered by EU-product liability and misleading advertising legislation. The Committee stresses that the present lack of status of European standards affects their ability to promote harmonisation in the Internal Market.

3.3.3. The Committee suggests that in a global market there is an increasing need for collaboration with the International Standards Organisation.

3.3.4. European standardisation bodies must be given the necessary resources to increase their rate of production and to ensure high quality. Moreover, there is a need for effective consumer representation. It is important also to take into account that within the existing general framework conditions, it is already foreseen that all interests - including those of consumers - can participate in standardisation. If this is to be a real possibility, participation costs for poorer organisations must be abolished so that they can afford to take part.

3.3.5. The language in which standards are written is inevitably technical, so particular attention must be paid to writing simple and understandable texts.

3.4. Chapter III: Other obligations of producers and obligations of distributors

3.4.1. Article 5 retains obligations on producers and distributors to provide consumers with information and warnings enabling them to assess the risk factors of a product in normal use. The Committee remains concerned, however, that such information, whether in words, diagrams or pictograms, is still not always easy to understand and apply.

3.4.1.1. The Committee points to the need for relevant safety information to be included in any form of electronic commerce or distance selling.

3.4.1.2. The Committee welcomes the new, clearer and more consistent requirement to withdraw dangerous products from the market and as a last resort to recall those already supplied to consumers. Successful operations in both cases depend on the ability to trace the origin of products. Suppliers will rely on effective management systems, backed up by appropriate records and information, to achieve such traceability.

3.4.1.3. In view of existing disparities among the Member States in effective control and enforcement, the Committee approves the new obligation for collaboration between competent authorities and manufacturers and suppliers. Both manufacturers and suppliers will inform the authorities of the action they have taken to prevent unacceptable risks to consumers. The Committee acknowledges that this is already done on a voluntary basis. The Committee stresses that it is essential to keep any new bureaucratic demands to the minimum in the interests both of producers and competent authorities.

3.5. Chapter IV: Specific obligations and powers of the Member States

3.5.1. The Committee endorses the need for comprehensive market surveillance and enforcement of regulations. Such work is carried out by the competent authorities, appointed by each Member State, whose enlarged role is detailed in Article 7. Success depends on co-operation and co-ordination. Both from the Internal Market and the consumer perspectives, enforcement on an even basis in the Member States should be reached as soon as possible.

3.5.1.1. The Committee questions the logic of defining the function of competent authorities in Article 6 when their special significance has already been mentioned under Article 5 of Chapter III. More detail is needed about their terms of reference and how they relate to one another.

3.5.1.2. The Committee suggests that Member States should ensure that the resources of their competent authorities are adequately expanded to match their increased obligations.

3.5.1.3. The Committee notes that it is the intention of the Commission to set up a European Product Safety Network. It accordingly asks whether this network will take the place of the existing Product Safety Enforcement Forum of Europe (Prosafe), which produces a database of agencies responsible for product safety. The Committee considers that it is essential not to lose the experience of Prosafe; on the contrary, it maintains that Prosafe could form the basis of the new network, subject to adequate funding to allow for extended activity and wider membership.

3.5.2. In view of the fact that rules without penalties make little impact, the Committee welcomes the need for effective, proportional and dissuasive sanctions to be imposed by Member States, who will inform the Commission of their actions.

3.6. Chapter V: Exchanges of information and Rapex (Procedures for the application of Rapex are given in Annex 2)

3.6.1. The Committee notes that food notifications are currently made using the Rapid Exchange of Information System (Rapex). In future these will come under the Food Safety Authority. Until the Authority is formally set up, they will continue to be made in accordance with the GPSD procedure.

3.6.2. The Committee recognises that serious and immediate risks require rapid intervention, and that procedures have not always been adequately implemented, largely because the conditions they have imposed have been restrictive. Speedy access to accurate information is essential in an emergency situation. The Committee therefore welcomes the Commission's suggested improvements to Rapex, particularly the provision of clear and detailed data about a notified product, and the mechanisms for following up notifications made by the Member States.

3.6.2.1. The Committee would welcome the taking into account by Rapex of additional statistical information from the European Home and Leisure Accident Surveillance System (EHLASS): EHLASS provides details of injuries in which products are involved.

3.6.2.2. The Committee also recommends the expansion of Rapex (and indeed of EHLASS), establishing world-wide exchange of information, thus ensuring greater consumer protection.

3.6.3. The Committee welcomes the Commission's proposal to prohibit the export to non-EU countries of products for which withdrawal and recall are mandatory, subject to derogations justified and endorsed by the Commission.

3.7. Chapter VI: Committee procedures

3.7.1. The Committee notes the transformation of the former Emergencies Committee into the new Regulatory Consumer Product Safety Committee. However, the Commission is also proposing an Advisory Consumer Product Safety Committee in addition to the European Product Safety Network outlined in Article 9. The Committee is confused about the role and function of these three bodies and asks whether a single Product Safety Commission would not have been more effective in view of the need for co-ordinated action.

3.8. Chapter VII: Miscellaneous and Final Provisions

3.8.1. The Committee welcomes the fact that information relating to risks to human health and safety will be open to the public in the form of information on product identification, the nature of the risk and measures taken to deal with the emergency situation. This measure will help to increase consumer confidence on which the success of the Internal Market depends.

3.8.1.1. This openness must nevertheless be balanced against the need to respect professional secrecy in justifiable cases.

3.8.2. The Committee approves the Commission's intention to provide a report on the implementation of the new GPSD every three years, in a continuous monitoring process in an era of rapid change.

3.8.3. In view of its ongoing work on consumer safety, the Committee believes that it should receive a copy of this report as well as the Council and Parliament.

4. Conclusion

4.1. An effective, newly-revised General Product Safety Directive is essential, but it must be carefully clarified and simplified so that it provides greater certainty for all those who are responsible for putting it into practice as well as for those who benefit from the security it offers. It is a vital protective measure for consumers, reducing their exposure to injury and death, and restoring confidence diminished by a series of recent crises. It is equally vital for producers and suppliers, for whom it provides a clear legal framework for all marketing activities relating to the principles of fair trade and fair competition in an Internal Market.

Brussels, 20 September 2000.

The President

of the Economic and Social Committee

Beatrice Rangoni Machiavelli

(1) ESC Opinion OJ C 51, 23.2.2000, p. 67.

APPENDIX

to the Opinion of the Economic and Social Committee

The following Section Opinion texts were rejected in favour of amendments adopted by the assembly but obtained at least one-quarter of the votes cast:

Point 3.2.1

5th phrase:

"The Toy Safety Directive, for example, does not cover all aspects of safety: acoustical and chemical dangers are omitted, because they are covered by the existing GPSD."

Outcome

29 votes for deleting the phrase, 20 against and 16 abstentions.

Point 3.6.3

2nd phrase:

"Such prohibitions must only be imposed when procedures initiated by the Commission have been properly complied with."

Outcome

35 votes for deleting the phrase, 26 against and 16 abstentions.