Series on the EU-MSR

Part 1: Introduction

Almost two years after the adoption of the Market Surveillance Regulation (EU) 2019/1020 (“MSR“), the national implementation is now imminent. This is one of the most significant changes in product and market surveillance law in the last ten years. The MSR will apply in its entirety from 16 July 2021.

By strengthening and reorganising market surveillance, improving the exchange of information and working more closely with economic operators, the aim is to achieve more consistent implementation and enforcement of EU product regulations. Ultimately, a higher level of protection is to be achieved also de facto in many areas (e.g. health-, consumers-, workplace- and environmental protection) and indirectly the free movement of products and fair competition are to be promoted. The EU Commission is pursuing the goal of reducing the high number of deviations from product law that were found in various types of products, whereby the figures cited in this respect are often based on “mere” formal deviations. The MSR places a special focus on online trade and (for the first time) also makes so-called fulfilment service providers the addressees of product law regulations. This is intended to adapt European product law to modern sales processes and digital supply chains.

The MSR applies to products that are subject to the 70 acts of EU harmonisation legislation listed in Annex I of the MSR, provided that no more specific regulations (having priority) are contained herein. It also applies to all products imported into the EU that are not subject to specific legislation, i.e. also to the non-harmonised non-food sector. Thus, the MSR covers a significant part of non-food products. The MSR removes the provisions on market surveillance from the Regulation (EC) No 765/2008 and now regulates them independently.

In Germany, the MSR is implemented in two fundamental legal acts: Through a newly created Market Surveillance Act (“Gesetz zur Neuordnung der Marktüberwachung“, “MÜG“) and through a comprehensive adaptation of the Product Safety Law (“Gesetz zur Anpassung des Produktsicherheitsgesetzes und zur Neuordnung des Rechts der überwachungsbedürftigen Anlagen“, “ProdSG n.F. “). The Federal Council approved the legislative resolution on the MÜG in its session of 28 May 2021. This concludes the parliamentary legislative procedure. The ProdSG n.F. was passed by the Federal Parliament on 20 May 2021. The approval of the Federal Council is still pending.

The MSR undoubtedly constitutes a fundamental break in product law and will change market surveillance practice. For the economic operators involved, the risk of product violations being discovered will increase significantly. This provides an opportunity to take a closer look at the main topics of the MSR, the MÜG and the ProdSG n.F. as well as the effects on practice in an ongoing series.