REVISION OF THE GENERAL PRODUCT SAFETY DIRECTIVE: KEY ISSUES FROM A CONSUMER PERSPECTIVE - PDF

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REVISION OF THE GENERAL PRODUCT SAFETY DIRECTIVE: KEY ISSUES FROM A CONSUMER PERSPECTIVE Contact: Tania Vandenberghe (ANEC) Sylvia Maurer (BEUC) Ref.: ANEC-GA-2010-G-001final BEUC
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REVISION OF THE GENERAL PRODUCT SAFETY DIRECTIVE: KEY ISSUES FROM A CONSUMER PERSPECTIVE Contact: Tania Vandenberghe (ANEC) Sylvia Maurer (BEUC) Ref.: ANEC-GA-2010-G-001final BEUC X/031/ /05/2010 Av. de Tervueren 32, box 27 B-1040 Brussels, Belgium internet: 80, Rue d Arlon, 1040 Bruxelles Want to know more? Visit Summary ANEC and BEUC welcome the revision of the General Product Safety Directive (GPSD), not only as an opportunity to review its safety requirements for consumer products, but also to introduce more effective and quicker actions in the case of risk to consumers health and safety. This document outlines the major issues we believe should be taken into account in the revised GPSD. In particular, we urge the Commission to: 1. Establish a more effective regulatory framework, allowing quick market interventions and reliable long-term solutions, without delegating political decisions to the standardisation bodies The GPSD should allow for the establishment of product-specific rules without limitations, either in terms of content or the period of applicability. The legislator should also be able to use an alternative to standardisation. 2. Provide for an opportunity to apply higher conformity assessment modules than industry self declaration We call for introduction of a provision that allows conformity assessment procedures involving third parties to be established for products which may pose significant risks to consumer health and safety. 3. Ensure that a comprehensive European legal framework for the safety of consumer products and services is in place. To this end there is a need for strengthening the GPSD and taking actions at the European level to ensure the safety of consumer services is legally addressed. 4. Ensure a more effective market surveillance system through: - the strengthening of the European framework for market surveillance - improved product traceability - wider access to information about dangerous products - the establishment of an EU-funded accident statistical system - the creation of a European complaints handling and reporting point - the creation of collective redress mechanisms 5. Ensure the safety of child-appealing products through the GPSD by: - including a legal definition for child-appealing products - introducing specific safety requirements for child-appealing products - maintaining the prohibition of dangerous food-imitating products 6. Make specific reference to people with disabilities under categories of consumers at risk 2 Introduction The General Product Safety Directive 1 (GPSD) has proved to be a landmark of European consumer protection policy in many ways. It is intended to ensure a high level of product safety for those consumer products not covered by specific sector legislation (as are toys and household electrical appliances for example). The European Commission s Report to the European Parliament and Council of January , on the implementation of the GPSD, identified elements that could improve the GPSD. In addition, the New Legislative Framework, adopted in 2008, put forward new provisions regarding the marketing of products with which the GPSD, like other product safety legislation, ought to be aligned. The European Commission therefore announced a revision of the GPSD by In support of this revision, a formal public consultation - to which ANEC and BEUC will contribute - will be launched later in With this first paper, our organisations intend to provide food for thought to the Commission at an early stage in the revision process. 1 Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety 2 COM(2008) 905 final: Report from the Commission to the European Parliament and to the Council on the implementation of Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety 3 1. Establish a more effective regulatory framework, allowing quick market interventions and reliable long-term solutions, without delegating political decisions to the standardisation bodies The major shortcoming of the current GPSD is that it almost entirely relies on the European Standardisation Organisations (ESOs) to provide detailed safety requirements for specific products. Moreover, although it allows regulators to adopt product specific requirements in the form of implementing measures in emergency situations, the adoption process remains extremely slow and the validity of the measures is always time limited. This situation is unacceptable for the following reasons: a) The GPSD requires that a standard be drawn up as follows: - the Commission adopts through Comitology a Decision which specifies the safety requirements that the future European standard should reflect; - based on this Decision, the Commission issues a mandate to the European Standards Organisations to develop a standard that satisfies the specific safety requirements; - once the standard is adopted and made publicly available, the Commission publishes its reference in the Official Journal (OJEU) unless the standard is deemed not to comply with the general safety requirements. Our main concern with regard to this procedure is that the initial Commission Decision, determining the safety requirements which the standard must meet, is not legally-binding. As the ESOs are not obliged to accept a Commission mandate and the use of standards is always voluntary, there is no guarantee that the standard will be developed and even if it is, there is no certainty it will reflect what the mandate requires. However, it is true that if a standard is developed but does not meet the safety requirements of the Decision, the Commission, through Comitology, can decide not to publish (or to withdraw) its reference in the OJEU. This means that, in any of the situations described above (i.e. in the absence of a standard or until its reference is cited in the OJEU), products that do not meet the safety requirements of the Decision can legally circulate or enter the market thereby putting consumers health and safety at risk. This status quo can last for many years (up to 5 years and more) before a satisfactory safety measure becomes operational. b) Temporary emergency measures, based on Article 13 of the GPSD, may be adopted by the Commission, but this instrument has not been used to any great extent. The temporary nature of Article 13 emergency measures can cause confusion and uncertainty among economic operators and consumers because they may not be prolonged at the end of their validity period, even when no solution to the risk has been found. 4 In addition, (multiple) prolongations in the past (lighters, phthalates) have led to an expenditure of resource that could have been avoided if emergency measures with permanent validity had been adopted. c) Political issues should be dealt with at the political level and not delegated to the standardisation bodies. We believe it essential that political decisions which have a direct impact on the protection or welfare of consumers are taken at Community level. An example is the establishment of content limit values for hazardous chemicals in consumer products. The role of standardisation should be limited to providing the technical means through which compliance with the political decision is achieved or evaluated. The General Guidelines, which constitute the common understanding between the EU/EFTA and the ESOs confirm that European standards provide technical solutions for presumption of conformity with legal requirements 3 and moreover recognise the distinct responsibilities and competencies 4 of the EU/EFTA and ESOs in the standardisation process. Given the shortcomings of some European standards, we also believe the Commission should consider introducing an option to standards as a means of supporting the GPSD. For instance, ANEC found that seven of nine European standards, proposed by DG SANCO in 2005 to be cited in the OJEU in support of the GPSD, did not offer sufficient levels of safety. In 2009, ANEC rejected most of the standards proposed by DG SANCO to be cited in the OJEU. Both examples arose from the unbalanced influence of industry in the development of standards to support legislation or the wider public interest. d) A further shortcoming is the lack of a safeguard procedure which would allow Member States to express a formal objection to a standard (such as Article 14 of the Toy Safety Directive 2009/48/EC). The use of a safeguard procedure should be possible even before a standard is cited in the OJEU. ANEC and BEUC propose that the legislative framework for the setting of ecodesign requirements for energy-related products (ERP) (2009/125/EC) be used as a model in the field of product safety. This directive foresees the adoption of implementing measures for specific product categories using a regulatory committee procedure complemented by a consultation forum involving all stakeholders. The implementing measures are based on research projects funded by the Commission. The Commission also makes funding available to ensure the effective involvement of consumers and environmental NGOs in the implementation process. As in the ERP ecodesign process, we believe the GPSD should allow for the establishment of product specific rules without limitation, either in terms of content or period of applicability. It could then be decided case-by-case which 3 General Guidelines for the Cooperation between CEN, CENELEC and ETSI and the European Commission and European Free Trade Association (28 March 2003): see section 3 4 Ibid: see section 4 5 level of detail should be defined in the implementing measure and which aspects left to the standards bodies. Such a mechanism would make the procedure to specify product specific rules as the basis for mandates superfluous. The adopted requirements would have a legal status per se and so form a framework for the adoption of mandates. The implementing measures could be adopted for a definite or indefinite time. Emergency measures would not be needed because of the legal status of the implementing measure, except for products covered by vertical product safety regulations (e.g. the Toy Safety Directive) which do not provide for the use of emergency measures. An alternative would be to allow the use of emergency measures in all directives. We propose the requirements for formal objection to a harmonised standard, detailed in the New Legislative Framework 5, are incorporated into the revision of the GPSD. European standards should be established by the ESOs under mandates set by the Commission but assisted by the regulatory committees. Regarding the interests represented in the standards development process, the participation of societal interests can be hampered by many factors such as lack of resources, insufficient expertise and ineffective coordination. These factors were detailed in the Access to Standardisation study of March for DG ENTR. Hence it is vital for public financial support to be continued in order to enable the participation of societal stakeholders directly at European level. ANEC welcomes the recommendation of the EXPRESS panel 7 for public funding to be continued to ANEC (ECOS, ETUI-REHS and NORMAPME) in the years to 2020 and beyond. The revised GPSD could not be successful without the effective participation of consumers in the standardisation process. 2. Provide for an opportunity to apply higher conformity assessment modules than industry self declaration A common framework for the marketing of products was approved jointly by the European Parliament and Council in 2008 (Decision 768/2008/EC). It describes the modules for the conformity assessment procedures that are to be used in Community legislation. Essentially, the European modular system provides for a menu of modules, enabling the legislator to choose a procedure from the least to the most stringent, in proportion to the level of risk involved and the level of safety required. 5 Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC, Annex I - Article R9 6 dy_eim_en.pdf 7 Report of the Expert Panel for the Review of the European Standardization System: Standardization for a competitive and innovative Europe: a vision for 2020, February The following criteria apply (Article 4): (a) whether the module concerned is appropriate to the type of product; (b) the nature of the risks entailed by the product and the extent to which conformity assessment corresponds to the type and degree of risk; (c) where third-party involvement is mandatory, the need for the manufacturer to have a choice between quality assurance and product certification modules set out in Annex II; (d) the need to avoid imposing modules which would be too burdensome in relation to the risks covered by the legislation concerned. Unlike the more recent Decision, the GPSD does not provide a possibility to choose an appropriate conformity assessment level depending on the risks a product may pose. This is a major shortcoming bearing in mind that the GPSD applies to all consumer products not covered by specific directives, even those that could pose significant risks. If the Supplier s Declaration of Conformity (module A) is considered the default level, higher levels seem to be warranted in certain cases. ANEC and BEUC call for the introduction of a provision which allows the use of conformity assessment procedures involving third parties for certain products. The selection of a module higher than A should be linked to criteria should be established using a committee procedure. 3. Need for a comprehensive framework for consumer safety, both for products and services: strengthening the GPSD while developing a horizontal legal framework for the safety of consumer services Today, there is a loophole in European legislation as the safety of consumer services is not covered by any European legislative acts. Only products used in the context of service provision are covered by the GPSD, provided that they are directly operated by consumers. The lack of an overarching legal framework for service safety and quality is of fundamental concern to consumers and consumer organisations. Although the European Directive on services in the Internal Market 8 recently entered into force, it aims only at improving the access to services across Member States, through the removal of administrative and legal barriers to trade for business. It does not address the safety aspects of services and provides only voluntary measures to ensure quality of services (through the promotion of standards). Moreover, it does not cover some of the most relevant consumer services, including healthcare and financial services. Regarding the GPSD, it is true that Article 2 states that the Directive also applies to products used or likely to be used by consumers in the context of providing a service. However, this provision is vague and questions remain on 8 Directive 2006/123/EC 7 whether it really covers any product that consumers use, or come into contact with, in the context of the provision of a service. The Legal Service of the European Commission itself interprets this article so that products that are used in the context of a service are covered by the GPSD only if they are operated by the consumers. In other words, a product involved in the provision of a service, but operated by the service provider, is not covered by European safety legislation. In order to cope with this legal loophole at EU level, most Member States interpret the GPSD as covering all products used in the context of a service regardless of who operates them and consider that their national implementing measures, incorporating the GPSD provisions into national law 9, cover all products regardless of the context in which they are used. Fairground equipment, responsible for a high number of serious accidents, is a good example of a product for which the safety aspects are not covered by any European Directive or legislation. Turning to the GPSD, it does not cover the safety aspects of the installation, operation and maintenance of such equipment or the competences of the personnel, for instance. The same can be said in the case of waterslides. All these concerns raise questions and highlight the need to address the legal gaps which exist in respect of the safety of services. ANEC and BEUC ask for a comprehensive European legal framework for the safety of consumer products and services. We therefore welcome the recent Commission announcement to propose the various legal options that could be used to address the safety of services. We will follow developments in this area and communicate a detailed position on the safety of services to the Commission in due time. 4. A more effective market surveillance system 4.1. Through strengthening the European framework for market surveillance Even the most stringent legislation and standards become worthless if they are not applied or enforced. Within the Internal Market, market enforcement authorities have the responsibility to protect consumers health and safety. Unfortunately, most market surveillance activities are undertaken by Member States exclusively and individually at the national level. This leads to inconsistencies and, above all, sees insufficient resources available to police the many products on the market. As a result, the consumer expectation for safe products is not always met. 9 For instance the French Consumer Code goes beyond the GPSD as it covers the safety of products and services (see Art L to L ). 8 In December 2009, a European Commission-led market survey relating to the safety of decorative Christmas lights 10 showed 30% of lights present a direct risk of fire and electric shock. These recent findings provide further evidence that market surveillance activities in the EU need to be improved and better resourced. They also show market surveillance activities are more effective when undertaken jointly by several Member States. Although Regulation 765/ became the first European instrument to set certain requirements for market surveillance by the Member States, we note with the utmost concern that a study 12 conducted for the IMCO Committee of the Parliament, published in October 2009, concluded most Member States will not commit more resources to market surveillance, either because they think their national systems already meet the requirements of the Regulation or because they do not have the financial resources available. European legislation is effective only if its enforcement is ensured. Sadly, the legislators tend not to consider market surveillance when discussing new laws. As ANEC stressed in a position paper, 13 issued with Orgalime (the European Engineering Industries Association) in April 2009, there is an urgent need for establishing a European framework for market surveillance in order to ensure the availability of sufficient resources and a coherent approach to market surveillance activities across all 27 Member States. This call has found support from actors across the economic spectrum such as all those present at the Swedish Presidency Conference on Safe Products of 11 September and we believe there is a strong expectation from the market for an initiative to be undertaken in the lifetime of the new Commission. The revision of the GPSD gives an opportunity to introduce more demanding requirements on market surveillance activities of Member States (such as the need to check a minimum number of products of a certain kind agreed at the European level). However, this would only be useful if the lack of resources of market surveillance authorities is addressed. Hence, a pan-european debate on increasing the financing of market surveillance activities (e.g. through a tax on products) should
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