Opinion of the Economic and Social Committee on "General Product Safety"

(2000/C 51/16)

On 29 April 1999 the Economic and Social Committee, acting under the third paragraph of Rule 23 of its Rules of Procedure, decided to draw up an Opinion on "General Product Safety".

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 25 November 1999. The rapporteur was Mrs Williams.

At its 368th plenary session (meeting of 8 December 1999) the Economic and Social Committee adopted the following opinion by 48 votes to nine, with two abstentions.

1. Introduction

1.1. The broadly-based General Product Safety Directive (GPSD)(1) came into force in June 1994, after a series of single-subject Directives such as the Toy Safety Directive(2). This concern for safety was endorsed in the EU Treaty under Article 100a, taking "as a base a high level of protection" and continues now in the Amsterdam Treaty under Article 153 (replacing 129a). The Treaty introduces a new dimension in terms of consumer protection and public health, which the Committee hopes will be given even greater priority by the new Commissioner.

1.2. Written into the GPSD (Article 16) is the provision that the Commission will report on the experience acquired together with appropriate proposals. The Council of Ministers was supposed to have decided by June 1998 whether to amend the Directive.

1.3. Since these reactions are overdue, the Committee is seeking to accelerate the appraisal process with an Own-Initiative Opinion.

1.4. The Committee has already been previously involved in the GPSD: first, with its original Own-Initiative Opinion in 1988(3), and secondly, with its response to the Commission's referral in 1990(4).

1.5. It should be noted that the principles of fair trade and fair competition must operate in the interests not only of consumers but also of industry and its workforce. Those who supply dangerous goods have an unfair advantage over competitors who accept the costs associated with building-in safety. They are not only a threat to consumers but they also undermine public confidence in the workings of the market.

2. General Comments

2.1. What the existing GPSD sets out to do - a summary

2.1.1. The purpose of GPSD is made clear in the first sentence - to ensure that products placed on the market are safe. So there is a duty for producers and distributors to supply products which present no risks, or present only acceptable risks compatible with the type of product concerned. Producers must make sure that their products can be traced, and distributors must not supply products which they know to be unsafe. They are obliged to inform consumers about any risks inherent in a product.

2.1.2. The Directive applies 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.

2.1.3. It also provides for appropriate information to be given to consumers, and covers matters such as product recalls and bans. It also puts on a permanent basis the Rapid Information Exchange System for Dangerous Products (RAPEX), where Member States notify the Commission when they discover a dangerous product on their market.

2.2. Changes to be taken into account since the implementation of GPSD

2.2.1. There have been major changes since 1992:

- the completion of the Internal Market and the free circulation of goods;

- the accession of Sweden, Austria and Finland;

- the increasing range of complex products on the market;

- new ways of selling which are remote and impersonal (e.g. electronic commerce and distance selling);

- the crises to which consumers have been subject (e.g. BSE and dioxins) and the consequent focus on risk assessment and "the precautionary principle" as outlined in DG XXIV's draft paper;

- the development of global trading, the setting up of the new World Trade Organisation and its effects on consumer protection;

- developments in new technology and the acceleration of communications in enforcement procedures, especially their use in recalls and other emergencies;

- the effects of the principles of subsidiarity, which have become more important since the Directive was adopted.

2.2.2. Future changes should also be taken into account; for example, potential enlargement of the Union by countries which may not yet have effective safety regulation or the necessary expertise. The Committee commends existing arrangements where cross-border co-operation, work experience, training and exchanges are provided by relevant government departments in certain Member States.

2.3. General comments on experience with the GPSD

2.3.1. While deploring delays in providing reports, the Committee congratulates the Commission and other interested parties for having recognised that the GPSD would need to be reconsidered within a few years of its implementation and for building this requirement for review into Article 16. Its foresight is all the more apparent in the light of changes listed in the previous paragraph.

2.3.2. The Committee also commends all those who have initiated and continued extensive consultation on the implementation and revision of the GPSD.

2.3.3. The Committee points out that, although the GPSD is concerned primarily with protection, there is nevertheless the need for more effective consumer education, particularly for people already considered at serious risk. It notes with interest that DG XXIV has included education for vulnerable consumers in general in its funding for the year 2000. Since children are at particular risk, there is also an obligation on parents to be aware of their responsibilities.

3. Specific Comments

3.1. The Committee examined the present GPSD under its various titles:

- objectives, scope and definitions;

- general safety requirement;

- obligations and powers of Member States;

- notification and exchange of information;

- emergency situations and action at EU level;

- miscellaneous.

3.2. Objective, Scope and Definition (Articles 1 and 2)

3.2.1. Article 16 asks whether the scope of the Directive in Article 1 should be extended, and the Committee replies as follows:

3.2.1.1. The Committee notes with satisfaction that standards have steadily improved in the EU through the particular success of the Product Liability Directive, safety legislation and competitive pressure.

3.2.1.2. The Committee considers that the GPSD continues to be of value in providing the means of dealing with all those products for which no specific provisions exist in vertical directives.

3.2.1.3. Nevertheless, the Committee suggests that more can be done in two particular ways: first, by simplifying, clarifying and removing ambiguities and, secondly, by encouraging Member States to share information and ensure dangerous goods are taken off the market.

3.2.1.4. In addition, the scope of the Directive should ensure the safe installation and maintenance of products in accordance with contractual agreements. Article 2 should be amended to provide definitions of installation and connection associated with the safety of the product(5).

3.2.2. Article 2 deals with definitions, which do not apply to the products of specific directives.

3.2.2.1. The present definitions are generally in line with what the Committee proposed in its two previous Opinions(6).

3.2.2.2. Demographic changes, however, have brought about more problems which must be taken into account: it is now not only children who should be specified as at serious risk, but also the rapidly increasing numbers of older and very frail elderly people. The special needs of disabled people should also be considered, particularly at the design stage of a product.

3.2.2.3. In the existing Directive the word "product" is defined in terms of consumer use. However, it was not foreseen that there would be grey areas resulting from the sometimes narrow divisions between products and equipment now on sale for domestic as well as professional use. Common examples of such product migration include laser pens, garden products and do-it-yourself equipment. The public therefore needs to be alerted to potential risks when such products are used without specialist knowledge, training and the availability of adequate protective clothing or equipment. Nevertheless, it is the Committee's view that the existing wording "in the course of commercial activity" should be clarified with regards to problems of product migration, and that enforcement bodies should accordingly be alerted to this interpretation.

3.2.2.4. In view of the fact that safety concerns a product throughout its lifetime, the Committee recommends that greater attention should be paid to practical instructions for safe disposal.

3.2.2.5. The Committee asks the Commission to look again at the implications of the word "risk", particularly in the light of the latter's own studies on risk assessment. The precautionary principle should be invoked in situations where scientific evidence is not conclusive enough to determine a level of protection, but where there is a potential risk of serious damage to public health. It must also be made quite clear that acceptability of the risk factor depends on the attitudes of society towards the minimal unavoidable risks people are prepared to tolerate. It must also be apparent that society progressively raises its standards towards the risks it will tolerate.

3.3. General Safety Requirements

3.3.1. Article 3 paragraph 2 item 1 provides the important link between the GPSD and the provision of safety instructions and warnings, stating that "Producers shall provide consumers with the relevant information to enable them to assess the risks inherent in a product".

3.3.1.1. The Committee is concerned that information on labels and instructions, whether in the form of words, diagrams or pictograms, is not always clear, easy to understand, remember and apply.

3.3.1.2. Sometimes there is even an excess of information, which can be overlong and repetitive, with manufacturers and distributors giving extremely detailed safety instructions and identifying of every foreseeable use and misuse. The result is that consumers either avoid reading the material or experience mental "overload" and fail to understand essentials.

3.3.1.3. The Committee, therefore, suggests there is a need for practical guidelines appended to the GPSD to clarify the ways in which information should be presented.

3.3.1.4. A major collaborative and co-ordinated investigation is also required, the object of which is to examine and monitor the adequacy of safety communication, including electronic communication and E-commerce.

3.3.1.5. The Committee also draws attention to the particular importance of clear, durable warnings and cautions, especially when the language used is not that of the country of the consumer, or when the translation into the native language is poor, and suggests the following:

- warnings should be given in the main language(s) of the country in which the product is sold;

- a lack of prescribed warnings and labels should be specified as reasons for prohibiting the import of a product from third countries;

- in special cases essential product safety information should be available wherever possible in alternative forms, such as braille, for the benefit of visually-handicapped people.

3.3.2. Article 3 paragraph 2 item 2, concerning product recalls

3.3.2.1. The Committee finds the wording vague and impractical as to where and when suppliers and distributors should mark products and batches to assist with recalls and withdrawals. A clear distinction should be made between the two. "Withdrawal" refers to the regulated removal of affected goods from shops, warehouses and factories, and "recall" refers to the retrieval by suppliers and producers of goods already bought and used by consumers. Cross-referencing to Article 6, the Committee suggests that the GPSD should be amended so that all Member States have powers to require suppliers and distributors to recall products where necessary.

3.3.3. Article 4

3.3.3.1. Article 4 refers to the important subject of standards, which exist at national, European and international levels. Where EU-wide standards have not yet been agreed, the Committee considers it desirable for Member States to recognise the validity of each others' national provisions. It is important that the applicant countries should implement all relevant directives, including the accompanying EU standards, which will correspond to the obligations of the relevant directives.

3.3.3.2. The Committee points to the need for monitoring by the Commission to determine whether or not mutual recognition of standards has led to safety problems.

3.3.3.3. At present, enforcement officers have problems in bringing prosecutions in the absence of standards to which reference can be made. Hence the Committee emphasises the need to accelerate the production of EU standards, with CEN and Cenelec collaborating as appropriate with ISO.

3.3.3.4. The Committee points to the needs of producers for international harmonised standards.

3.3.3.5. The Committee also requests standards bodies to make the content of standards as relevant to consumers as they are to producers, and to increase opportunities for consumers to be represented on standard-making committees.

3.4. Obligations and powers of Member States

3.4.1. Article 5

3.4.1.1. Under Article 5, Member States must establish or nominate enforcement authorities and notify the Commission, which will notify the other Member States. This system is supported by the Product Safety Enforcement Forum of Europe, PROSAFE, which produces a database of agencies responsible for product safety. It is essential that consideration is given to the effective implementation and administration of the GPSD within each Member State. The Committee therefore considers that, wherever possible, Member States should designate a single enforcement authority with responsibility for product safety.

3.4.1.2. The Committee notes the need for an effective mechanism to bring about rigorous and consistent application of the Directive.

3.4.1.3. The Committee suggests that the Commission should include frequently updated information on competent safety authorities in the Health and Consumer Protection DG's website.

3.4.1.4. Member States should be placed under an obligation to help any enforcement authorities who need information about companies whose headquarters or main operation is within their jurisdiction.

3.4.2. Article 6 confers certain powers on Member States

3.4.2.1. The Directive should be amended to make the recall of dangerous products a requirement rather than an option for Member States, in view of the poor response rate achieved in certain Member States using the present optional system. There should also be the right of redress for producers in cases of error.

3.4.2.2. Member States should set up a consistent central database, co-ordinated by the Commission on a Europe-wide basis.

3.4.2.3. Member States should provide consumers with systematic access by multiple means to information on products which are recalled, including an EU internet website. Language used must be clear and unambiguous. They should encourage traders and their associations to be more innovative and effective in the methods they use to communicate with consumers, and to implement better systems of traceability and better methods of identifying individuals who have bought unsafe goods.

3.5. Notification and Exchanges of Information; Emergency situations and action

3.5.1. Article 6 of the GPSD is ambiguous on the matter of product recall, which has led to different interpretations through varying degrees of insistence by Member States. This Article must be clarified.

3.5.1.1. The Committee therefore recommends a recall procedure that will include a specific requirement for companies to inform government agencies about unsafe goods.

3.5.1.2. The Committee notes that product recall is just one element of a strategy. A planned and directed approach to designing and creating safer products is needed. Moreover, there is an on-going need for assessment of the state of product safety and its perceived shortcomings(7), and for establishing ways of measuring improvement and monitoring progress over specific periods.

3.5.2. Articles 7 and 8

3.5.2.1. The Committee recognises that the GPSD was adopted before the present emphasis on subsidiarity, which puts enforcement, emergency procedures and the imposition of penalties quite firmly in the hands of the Member States and their designated authorities, with the Commission playing a co-ordinating role.

3.5.2.2. In contrast, the EU is increasingly operating in a global context in which we need to bear in mind the positive contribution of OECD. We additionally require international protocols to deal with international enforcement issues and an online international database of all recalled and unsafe goods.

3.5.2.3. In view of these factors, the Committee proposes that the role of the EU should be to make sure that information through the Rapid Exchange of Information System (RAPEX), now established on a permanent basis, is effectively and speedily exchanged, and monitored for trends. At present there are information blockages which mean that information often reaches the "front line" practitioners too late to be effective. Immediate risk should lead to immediate action and not be restricted by the rationale of the free movement of goods.

3.5.2.4. The Committee recommends that the present - unnecessarily complex - safeguard notification procedure needs to be supported by risk assessment procedures.

3.5.2.5. Member States should facilitate the computerised exchange of information between enforcement authorities and safety organisations, and the transmission of such information to the Commission and other Member States.

3.5.2.6. The Committee recommends that products known to be dangerous in the European Union must not be exported to third countries - particularly developing countries where there is much ignorance and little protective legislation - unless differences in culture, life-style and tradition make such imports acceptable. Such products should be reviewed on a case-by-case basis.

3.5.2.7. The Committee recognises that confidentiality may be a problem in the case of a suspected dangerous product, but suggests that any period of confidentiality needed by producers for product evaluation must be strictly limited.

3.5.3. Article 9

3.5.3.1. The Committee would like the present rather limited powers of the Commission to act on safety matters to be extended by removing some of the conditions and lack of clarity which make intervention difficult. In particular, the Commission should monitor the implementation of the Directive and the effectiveness of controls in the Member States.

3.5.3.2. The Committee also recommends that the Commission should have a role in monitoring accident data with a view to identifying trends and future priorities.

3.5.3.3. The Committee stresses the increasing importance of the European Home & Leisure Surveillance System (EHLASS)- on which the Committee has given its Opinion on several occasions - and makes the following points.

3.5.3.4. It is essential to have an effective accident monitoring system recording product safety data, logically situated in the Health and Consumer Protection DG and co-ordinating with other relevant Directorates General. The Committee recognises that in many cases products are only involved in an accident but are not necessarily the cause. EHLASS is the only present means of systematically acquiring statistical information about accidents - whether, for example, they have increased since the implementation of the GPSD - and providing the means of checking trends and establishing priorities. The system needs extension on a consistent basis throughout the EU, and co-operation with third countries such as the USA and Australia.

3.5.3.5. The GPSD should be amended to require the Commission to publish accessible EHLASS data annually, and to institute mechanisms for checking on entry imports from third countries. This will be particularly important in view of the planned enlargement of the EU.

3.5.4. Articles 10, 11 and 12

3.5.4.1. The Committee would like to see the present rather limited membership of the Committee on Product Safety Emergencies (set up under the original GPSD) appropriately extended in scope to include a wide range of expertise, such as independent health and safety specialists. It could assume similar responsibilities to those of a Product Safety Commission.

3.5.4.2. The Committee also recommends that the GPSD should be amended so that the Committee on Product Safety Emergencies can investigate EU-wide data on accidents and can monitor product safety standards with a view to their revision.

3.5.4.3. The Committee suggests the publication of agenda and minutes on the Health and Consumer Protection DG's website.

3.5.5. Enforcement (The Committee notes that the GPSD does not actually address enforcement co-operation or levels of enforcement.)

3.5.5.1. In view of increased cross-border purchasing, the Committee indicates ways in which the Commission could usefully improve co-operation and information exchange among the EU enforcement bodies:

- by developing a regular and well-resourced forum of enforcement officials (see 3.4.1.1)

- by developing a common approach to risk assessment based on objective and scientific criteria

- by ensuring that testing and sampling procedures become more consistent.

3.6. Miscellaneous and final provisions

3.6.1. Article 15

The Committee endorses the need for a Commission report every two years, in the light of rapid changes within Europe. Such a report should include data from EHLASS and an annual list of product safety notifications, bans and recalls.

3.6.2. Article 18

Decision 89/45/EEC is repealed because Article 7 of the GPSD establishes RAPEX on a permanent basis.

4. Other issues

4.1. There are many other issues involved in the practical application of the present version of the GPSD, ranging from global implications to the environmentally safe disposal of products at the end of their lifespan. The most significant issues are as follows:

4.1.1. The Committee questions whether services should be covered by the revised version but concludes that the complexity of this essential subject would be better dealt with in a new and completely separate Directive covering carefully classified categories of service.

4.1.2. The Committee considers that, in accordance with the principle of subsidiarity, the Member States should deal with the question of sanctions, penalties and compensation.

4.1.3. The Committee rules out the desirability of setting up a Product Safety Commission for the European Union on the grounds that re-organising and extending the existing Committee on Product Safety Emergencies could adequately achieve this objective. In the case of individual Member States, properly-resourced Product Safety Commissions are to be encouraged.

5. Conclusions

5.1. An effective General Product Safety Directive, carefully and judiciously revised to take into account the changing needs of the European Union, is essential to the proper and well-balanced functioning of the Internal Market. It is an essential protective measure for consumers reducing their exposure to injury and even death. At the same time it is essential for producers and suppliers in that it provides a clear legal framework for all marketing activities relating to the principles of fair trade and fair competition.

5.2. For the sake of consumer protection, it is essential that the GPSD should be continually revised and updated where necessary. It is however important that any amendments should always take account of existing or contemplated product liability regulations. In the summer of 1999, the Commission published a green paper on this question, entitled "Liability for Defective Products".(8)

5.3. The Committee recognises that the Commission is currently revising the GPSD and asks it to take into account the results of its many consultations, including the comments of the Committee.

Brussels, 8 December 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) 92/59/EEC, 29.6.1992, OJ L 228, 11.8.1992, p. 24 and ESC Opinion: OJ C 75, 26.3.1990, p. 1.

(2) 88/378/EEC, 3.5.1988, OJ L 187, 16.7.1988, p.1.

(3) OJ C 175, 4.7.1988, p. 12.

(4) ESC Opinion: OJ C 75, 26.3.1990, p. 1.

(5) This may be reconsidered in the light of future legislation on consumer contracts.

(6) ESC Opinions: OJ C 175, 4.7.1988, p. 12 and OJ C 75, 26.3.1990, p. 1.

(7) Such an assessment should be on the lines of the report produced, at the request of the Commission, by the University of Louvain-la-Neuve, Autumn 1999, on the practical application of the GPSD.

(8) COM(1999) 396 final, 28.7.1999.

APPENDIX

to the opinion of the Economic and Social Committee

The following amendments, which obtained more than one quarter of the votes cast, were rejected during the discussions.

Amendment 2

Delete point 3.5.2.6.

Reason

Preventing a third country from importing from Europe goods which have been deemed insufficiently safe for sale to consumers, but which are not banned from sale in the country in question, must be seen as an unacceptable attempt to impose European regulations outside EU territory. An export ban would probably be seen as a patronising throwback to colonialism, which Europe should eschew.

Result of the vote

For: 14, against: 34, abstentions: 5.

Amendment 1

Delete point 4.1.1.

Reasons

As the paragraph rightly points out, the issue of the safety of services and liability for unsafe provision of services is very complex. This is also the reason the Council has not already approved a Commission proposal for a Directive on liability for unsafe and/or defective service provision. It is too easy to use the complexity of the subject to conclude that this area requires separate legislation in the form of an EU Directive. Such legislation would also carry a risk of inhibiting growth in the EU services sector, on account of the mostly incalculable - and consequently uninsurable - risks. This runs completely counter to the EU's efforts - recently endorsed by the ESC - to build on the employment potential of the services sector.

Moreover, unlike in the case of defective products, it is virtually impossible to remove services from the market on the grounds of risk. If, for example, a Member State prohibits a service on such grounds, this could lead to a violation of single market rules on the freedom to provide services. This is exactly the situation we are in today: according to a recent Commission communication, the Member States still do not generally apply the principle of mutual recognition to service sector jobs. Services are almost always provided in the framework of a contractual relationship. Civil law, which governs these agreements, provides adequate guarantees for resolving differences between the parties, e.g. compensation for damages in case of default. Furthermore, the "law of torts" applies to non-contractual relationships, and this can also lead to compensation and prohibition. The guarantees provided for in the existing civil law framework in the Member States are thus sufficient to cope with current requirements, and there is no evidence of a need for further legislative harmonisation in the form of EU Directives.

Result of the vote

For: 22, against: 29, abstentions: 10.