Product safety in online marketplaces: The new market surveillance law
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Product safety in online marketplaces: The new market surveillance law

On June 20, 2019, the European Council and Parliament adopted the new Regulation (EU) 2019/1020 on market surveillance and conformity of products. The new regulations aim to provide stricter controls for products imported into the EU from a third country. The ever-growing e-commerce trade is one of the biggest challenges for the European single market, and the regulatory loopholes that applied until now gave online retailers enough leeway to circumvent unwelcome controls.

Expanded definition of "placing" on the market

In the new Market Surveillance Regulation, the concept of placing on the market is expanded. According to Article 6, the product is deemed to be placed on the market if the offer is directed to an end user in the Union online or via another form of distance selling. This means that placing on the market already starts by merely offering it in online commerce. This Article 6 on distance selling is an effective tool for market surveillance authorities, allowing them to quickly remove illegal and non-compliant online products from online platforms.

Fulfillment service provider as a new economic player

The introduction of the new economic operator "fulfillment service provider" is the further innovation of the Market Surveillance Regulation. According to the MÜ-VO, the "fulfillment service provider" is any natural or legal person who offers at least two of the following services within the scope of a business activity: Warehousing, packaging, addressing and shipping of products. The new regulation expands the scope of responsible market actors. As a result, the "fulfillment service provider" as a new link in the supply chain will also have corresponding obligations together with the economic operators such as manufacturer, importer, authorized representative. If another economic operator does not already fulfill the obligations of the regulation, this will be the responsibility of the fulfillment service provider.

More effective market surveillance

Cooperation between manufacturers and the authorities plays an important role in efficient market surveillance. In order for the market surveillance authority to have a contact person, there should be an economic operator located in the European Union for certain products. The economic operators (manufacturer, importer, authorized representative, fulfillment service provider) are obliged to cooperate with the market surveillance authorities.
Article 14 of the new regulation has specified the powers of market surveillance authorities. Particularly noteworthy is the new power in Art.14(4) letter k. If no other means are available to prevent harm, the market surveillance authority has authority for requesting the removal of content from an online interface. Otherwise, an explicit display of an end-user warning may also be required. If such a requirement is not met, the competent authority should request an information society service provider to restrict access to the online interface.

Significant new regulations for online retailing

Through the new regulation:
- the "fulfillment service provider" is defined as a new economic operator
- if no other economic operator fulfills these obligations of the regulation (e.g. declaration of performance or conformity, technical documentation of the manufacturer, etc.), then the responsibility lies with the fulfillment service provider
- the concept of placing on the market is extended: the online product offer is considered to be made available on the market if the offer is addressed to an end user in the Union online or via another form of distance selling
- economic operators (manufacturer, importer, authorized representative, fulfillment service provider) are obliged to cooperate with market surveillance authorities.
- the market surveillance authority has authority for the removal of content from an online interface or may further require the explicit display of an end-user warning

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Marco Mauler
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