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'
Date: 2000-09-20
Institutions: European Economic and Social Committee
Subjects: consumer protection, drafting of EU law, product safety

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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

The original General Product Safety Directive (GPSD)
1.1.
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 improve-
ment.

Unfortunately,

this report did not appear at

the
1.3.
specified time, so the Committee reacted forcefully: in Decemb-
er 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
introducing amendments which are clearly
structure but

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

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 regulat-
ory 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.

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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.

— Objective, scope and definitions

— General safety requirement, conformity assessment cri-

teria and European standards

— Other obligations of producers and obligations of dis-

tributors

— Specific obligations and powers of the Member States

— Exchanges of information and rapid intervention situ-

ations

— Committee procedures

— Miscellaneous and final provisions

The Commission attempts to reinforce the present
2.1.5.
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
in the
applications
implementation of the existing Directive, pointed out that one
would need a degree in European law to understand much of
the original Directive.

reveals widespread

shortcomings

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
new proposal applies to products irrespective of the selling
technique, including distance and electronic selling (7).

the Chapters:

for example,

2.1.5.1.
the Com-
The Committee questions whether
mission’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

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

3.1.1.1.
This introduction is an essential reference docu-
ment 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.

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The Committee also seeks clarification of

3.2.1.1.
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.

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.

3.2.2.
The Committee notes that products originally intend-
ed 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.

The Commission adds a new definition relating to
3.2.4.
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.

The Commission now defines ‘recall’ but does not
3.2.5.
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 danger-
ous 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.

3.2.7.
The Committee suggests that Article 2 should also
require safe and environmentally-satisfactory disposal of prod-
ucts (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 protec-
tion, provided that safeguard clauses exist in case a standard
does not provide an adequate level of protection. The Com-
mittee 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.

The Committee stresses the need for clarification of
3.3.2.
the status of European standards. There must be a coherent
integration of national standards’ regimes and a clear under-
standing 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.

3.2.6.
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

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,

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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.

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.

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

3.5.1.1.
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.

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

distributors

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.

3.4.1.
Article 5 retains obligations on producers and dis-
tributors 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.

The Committee points to the need for relevant
3.4.1.1.
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 tracea-
bility.

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 com-
petent 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.

3.5.1.3.
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
inform the Commission of their
Member States, who will
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.

3.5. 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.

3.6.2.
The Committee recognises that serious and immedi-
ate 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 Com-
mission’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.

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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 pro-
posal 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 Com-
mission 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,

Brussels, 20 September 2000.

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.

In view of its ongoing work on consumer safety, the
3.8.3.
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.

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 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.