HF-Law series: The new EU Market Surveillance Regulation and its implementation

Part 2: Customs control law

One of the most significant changes introduced by the Market Surveillance Regulation (EU) 2019/1020 (“MSR“) concerns import controls by customs authorities.

The EU Commission (rightly) sees import controls as an important instrument for reducing non-compliant products from third countries and thus also for reducing security risks. Against this background, customs law is tightened in the MSR. The amendment affects all imported non-food products unless more specific provisions exist (cf. Art. 2 MSR). To this point, the product safety-related customs control law was regulated in Articles 27 – 29 of the Regulation (EC) No 765/2008, which are being replaced by Articles 25 – 28 of the MSR.

Until now, customs authorities could only suspend the release of a product for free circulation on the Union market if

there were indications that the product presented a serious risk, or
the product was not accompanied by the required documentation or was not marked accordingly, or
the CE marking was falsely or misleadingly affixed to the product.

These limited inspection powers are considerably extended by the MSR. In addition to the essentially retained reasons for suspension, reasonable doubts as to the authenticity, accuracy or completeness of the required documentation are sufficient for suspension. This means that, unlike in the past, not only the complete absence, but also errors in content – this is usually the crux of the matter – can be objected to. The same applies to violations of the new marking obligation according to Art. 4 (4) MSR (contact information of an EU-based “contact person” for the market surveillance authorities).

The most far-reaching extension, however, is the inclusion of a catch-all provision. According to this, release for free circulation may also be suspended if there is cause to believe that the product does not comply with the Union law applicable to it. The customs authorities are thus in a position to take action against practically every conceivable compliance violation in the harmonised product area. In this respect, practice will have to show how much specific competence and resources are available or will be created at the customs authorities.

The procedure following the suspension remains largely the same. The suspension must be reported immediately to the market surveillance authority in whose area of responsibility the customs authority is located. The market surveillance authority continues to be responsible for the final decision on how to proceed in the matter and with the product. However, unlike in the past, not three, but four working days of “consideration time” are granted to order the uphold of the suspension towards the customs authority.

The import regulations are supplemented by increased information exchange obligations with the market surveillance authorities, as well as between the authorities of the member states and with the EU Commission within the framework of a newly created information and communication system. Assuming that the system is being used extensively in practice, this can lead to considerably more far-reaching consequences, such as market surveillance measures with regard to products that have already been distributed.

The changes in customs control law are quite considerable and it is to be expected that significantly more products will “get stuck at customs” in the future. The risk that market surveillance authorities will take measures with regard to products that have already been placed on the market as a result of a customs complaint (and the passing on of information via the information and communication system) should certainly not be underestimated.