Opinion of the Economic and Social Committee on 'General Product Safety'
Date: 1999-12-08
Institutions: European Economic and Social Committee
Subjects: competition law, consumer protection, marketing standard, product safety, single market

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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

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.

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

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.

(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.

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.

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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
circulation of goods;

the Internal Market and the free

— the accession of Sweden, Austria and Finland;

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.

— the increasing range of complex products on the market;

3. Specific Comments

— new ways of selling which are remote and impersonal (e.g.

electronic commerce and distance selling);

The Committee examined the present GPSD under its

3.1.
various titles:

— 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;

— objectives, scope and definitions;

— general safety requirement;

— 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;

— obligations and powers of Member States;

— notification and exchange of information;

— emergency situations and action at EU level;

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

— miscellaneous.

Future changes should also be taken into account;
2.2.2.
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 experi-
ence, training and exchanges are provided by relevant govern-
ment 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
Its
foresight is all the more apparent in the light of changes listed
in the previous paragraph.

for review into Article 16.

2.3.2.
initiated and continued extensive
implementation and revision of the GPSD.

The Committee also commends all those who have
consultation on the

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:

The Committee notes with satisfaction that stan-
3.2.1.1.
dards 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 encour-
aging Member States to share information and ensure danger-
ous goods are taken off the market.

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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 (1).

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.

3.2.2.
to the products of specific directives.

Article 2 deals with definitions, which do not apply

3.3. General Safety Requirements

3.2.2.1.
The present definitions are generally in line with
what the Committee proposed in its two previous Opinions (2).

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.

In the existing Directive the word ‘product’

is
3.2.2.3.
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.

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

its lifetime,

The Committee asks the Commission to look again
3.2.2.5.
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

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.

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

A major collaborative and co-ordinated investi-
3.3.1.4.
gation 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 particu-
lar 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;

(1) This may be reconsidered in the light of future legislation on

consumer contracts.

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

p. 1.

— 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.

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3.3.2. A r t i c l e 3 p a r a g r a p h 2 i t e m 2 , c o n c e r n -

i n g p r o d u c t r e c a l l s

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. A r t i c l e 4

3.3.3.1.
Article 4 refers to the important subject of stan-
dards, 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.
for international harmonised standards.

The Committee points to the needs of producers

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.

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.

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

The Committee suggests that

the Commission
3.4.1.3.
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 obli-
gation to help any enforcement authorities who need infor-
mation about companies whose headquarters or main oper-
ation is within their jurisdiction.

3.4.2. A r t i c l e 6 c o n f e r s c e r t a i n p o w e r s o n

M e m b e r S t a t e s

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.

3.4. Obligations and powers of Member States

3.5. Notification and Exchanges of Information; Emergency situ-

ations and action

3.4.1. A r t i c l e 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

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

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

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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 (1), and for establishing
ways of measuring improvement and monitoring progress
over specific periods.

3.5.2. A r t i c l e s 7 a n d 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.

The Committee recommends that the present —
3.5.2.4.
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.

(1) 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.

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. A r t i c l e 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 Direc-
tive and the effectiveness of controls in the Member States.

3.5.3.2.
The Committee also recommends that the Com-
mission 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 monitor-
ing 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. A r t i c l e s 1 0 , 1 1 a n d 1 2

The Committee would like to see the present rather
3.5.4.1.
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 Com-
mission.

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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. E n f o r c e m e n t

( T h e C o m m i t t e e

n o t e s
a c t u a l l y
t h a t
a d d r e s s e n f o r c e m e n t c o - o p e r a t i o n o r
l e v e l s o f e n f o r c e m e n t . )

t h e G P S D d o e s

n o t

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)

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.

— by developing a common approach to risk assessment

based on objective and scientific criteria

5. Conclusions

— by ensuring that testing and sampling procedures become

more consistent.

3.6. Miscellaneous and final provisions

3.6.1. A r t i c l e 1 5

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. A r t i c l e 1 8

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

Brussels, 8 December 1999.

An effective General Product Safety Directive, carefully
5.1.
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’. (1)

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.

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

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

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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.