The EU Market Surveillance Regulation, adopted in 2019, came into full effect as of July 16, 2021. The two-years implementation period given to industry and businesses was intended to give them enough time to adapt to stricter rules. However, TIC Council remains concerned about the weaknesses of the current market surveillance system.
This Regulation applies for all products that fall under EU harmonization legislations, including construction products, medical devices, machinery, or toys. These are typically products requiring the CE marking that have not necessarily been independently assessed for conformity.
Through a network of national market surveillance authorities, the Regulation aims to strengthen the control requirements for these products circulating in the EU market. It intends to ensure their conformity and safety for European consumers and create better conditions for fair competition.
The approach behind the text is the result of the rapidly changing characteristics of modern supply chains, increasingly based on e-commerce and online. Until now, consumers were considered the importers of the products they bought online and were therefore legally responsible for their compliance with EU safety standards, even though they had no technical qualification to do so.
The EU Market Surveillance Regulation attempts to put an end to this legal loophole. It defines the concept of “economic operator” and requires non-EU manufacturers who want to sell their products in the EU to mandate one. This economic operator will then act as a contact point and will be responsible for ensuring that the manufacturer’s product complies with all necessary EU requirements.
The new Regulation also seeks to strengthen controls on products entering the EU as well as market surveillance mechanisms within EU’s borders. The system should allow for the smooth exchange of information for the responsible authorities.
TIC Council considers that the new Regulation has created a modern and unified legal framework necessary for market surveillance among EU Member States. However, we have also identified several issues that hamper its potential to become the cornerstone of a truly effective market surveillance system.
Our biggest concern is that national market surveillance authorities remain responsible for monitoring samples of products on the market and identifying those that are not compliant. These authorities suffer from a lack of guidelines, funds and resources. This prevents them from carrying out their tasks properly and consistently.
Consequently, inconsistencies remain between national authorities, both in the scope of their activities and in the frequency of checks, which undermine the credibility of the internal market and its ability to function correctly.
As a result, too many unsafe products are still circulating on the EU market, even for the most vulnerable consumers groups. The Safety Gate system, the EU rapid alert system for dangerous non-food products, received 607 alerts to notify dangerous toys out of a total of 2253 alerts in 2020. Since 2016, the Annual Safety Gate reports have continually noted that there is a growing concern about the safety of products sold online, raising questions about the effectiveness of the system.
This will become even more true as products are becoming more complex with digitalization and as we set the bar higher with sustainability requirements.
We consider it beneficial that TIC companies test product compliance, verify claims, and provide labelling before products are placed on the market. In this regard, third-party conformity assessment is more effective and efficient than market surveillance activities, a post-market activity, in verifying compliance and reducing the risk to consumers and businesses.
Thereby, TIC companies alleviate work for market surveillance authorities who have limited resources and allow them to focus their resources on complex potential risks and on the products that were never subject to conformity assessment.
In addition, while easing the financial burden on public resources, they can also help small, medium, and large enterprises to adapt to ever-changing regulatory requirements and provide assurance that their products are compliant in a cost-effective manner.
Assessing the effectiveness of the EU Market Surveillance Regulation is particularly relevant in a general context of implementation by the Commission of its New Consumer Agenda.
Following a similar spirit, the European Commission has recently presented its proposal for a revision of the General Product Safety Directive that also pursue the objectives of strengthening consumer’s protection and responding to new environmental and digital challenges.
The revision aims to establish the essential rules on the safety of consumer products made available on the market. It also seeks to cover a larger range of products and to set a unique regime of market surveillance for harmonized and non-harmonized products.
However, the proposal does not foresee independent third-party testing to improve product safety in the EU. Therefore, while the European Commission expects that the European market will become safer with more stringent rules on market entry, and strengthened internal market surveillance, challenges remain ahead.
For more information on the role of the TIC sector in building a secure and compliant European internal market, you can read our “Value of TIC report” or contact Martin Michelot, Policy and International Affairs Manager, mmichelot@tic-council.org.
Mann Nguyen