EU Reviews General Product Safety Directive

On 23 June 2020 the EU Commission led by DG JUST (Unit JUST.E4 Product Safety and Rapid Alert System) launched a consultation, scheduled to run to 1 September, to review Directive 2001/95/EC, the Union’s general product safety directive.

Member State product recall information issued on the EU Rapid Alert System shows the scale of unsafe consumer products still reaching the market in spite of almost 20 years of enforcement of the ageing Directive. Notwithstanding the statistics that can be revealed by Rapid, these cannot account for the true number of dangerous products being made available, due to practical screening limitations.

The Roadmap just issued offers a synopsis of the challenges believed to be hampering performance of GPSD in the digital age:

• The age of the Directive alone means that it does not explicitly address the fact that new technologies, in particular Artificial Intelligence (AI), can impact product safety. Indeed a recent Report on the same issue revealed that clear provisions are needed in EU product safety legislation to explicitly address safety risks linked to products incorporating new technologies, such as connected products and AI. Connected devices call into question the definition of products (to what extent does a product include software, whether it is sold with the product or downloaded later on). They also bring new risks or change the way existing risks could materialise, challenge the notion of placing products on the market (e.g. products undergoing change as a result of software updates)
• The Directive’s provisions on market surveillance are not fully in line with complimentary market surveillance rules for harmonised products, as recently updated through Regulation (EU) 2019/1020. Indeed the Commission calls these rules ineffective, noting a lack of appropriate instruments and resources to enforce product safety rules, including tools to impose effective sanctions
• Growth in e-commerce – online selling has experienced unprecedented increase in market share. Associated challenges include the lack of effective instruments for online market surveillance, the emergence of new online business models and actors (such as platforms hosting third party sellers) and the lack of clarity regarding safety rules for these economic operators
• Ineffective product recall

The evaluation will be underpinned by 5 essential criteria:

• Relevance (whether the tools of the Directive correspond to current needs)
• Effectiveness (whether the original objectives have been achieved)
• Efficiency (the functioning of the Directive from a simplification and burden reduction perspective)
• Coherence (how the Directive works together with other legislation in the field of safety of consumer products)
• EU added value

Policy options open to the Commission to address current limitations include both a targeted and full revision of the Directive. Full revision would entail repealing the Directive in its entirety.

Conversion into a regulation is another possibility, one which would certainly ensure even application of its implementation. Substantively, the regulation would extend the definition of products to standalone software, include new provisions for actors across the online supply chain, establish mandatory requirements for product recalls and registration, give stronger enforcement powers to Member State authorities, and give arbitration powers to the Commission in case Member States have diverging product safety risk assessments.

The Commission might also consider what it terms the ‘integration of legal instruments’, the development of a new legal instrument including all elements described above but additionally combining the market surveillance provisions of the GPSD and Regulation on the market surveillance and compliance of products. In this way, a single set of rules would apply to harmonized and non-harmonized products.

Views gathered over the course of a number of public and targeted consultations will be summarized in a synopsis report published on the consultation webpage.

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