New era in product safety law – EU Market Surveillance Regulation adopted

After several attempts and many years of negotiations, the EU Market Surveillance Regulation was published on 25 June 2019 (Regulation (EU) 2019/1020, OJ EU L 169, 1 ff.). This is probably one of the most fundamental legal developments in the non-food sector in the last 20 years. It largely replaces Regulation (EC) No 765/2008 and forms the new framework for market surveillance with regard to 70 (!) EU directives and regulations. It also entails fundamental substantive changes to the law. The Market Surveillance Regulation will apply from 16 July 2021, but is likely to cast its shadow in the short and medium term. The main changes and innovations in keywords:

  • Significant expansion of market surveillance powers, e.g.: access to (i) software embedded in products and (ii) details of the supply chain, (iii) distribution channel and quantities of products on the market; unannounced inspections; reverse engineering; access rights; false identity testing; removal of online content of non-compliant products.
  • Significant expansion of customs competences, information facilities and the scope of checks during customs procedures.
  • Further develop and intensification of the exchange of information through RAPEX and ICSMS, including establishment of a new interface with customs.
  • Shipping platforms will in future be subject to comprehensive obligations as market players (“fulfilment service providers”).
  • Products subject to 18 EU regulations and directives may only be placed on the market if a market player (manufacturer, importer, authorised representative or fulfilment service provider) is based in the EU.
  • In the case of products sold online, will be deemed to be placed on the market with an offer on the Internet targeting users in the EU.

The Market Surveillance Regulation will lead to fundamental systemic and substantive changes in (German) product law and market surveillance and will significantly aggravate the risks of detecting product law violations and the legal consequences. Civil liability risks are also increasing for all market players.