New product safety law from mid-2021 Powers of market surveillance authorities also for online platforms

From July 16, 2021, a reform of product safety law will come into force and the powers of the authorities will be significantly expanded, including the power to purchase products under a false identity, carry out reverse engineering and restrict access to online platforms and require the inclusion of warnings. Orders to withdraw and recall products are also possible.

New product safety law

From July 16, 2021, the new EU Regulation 2019/1020 "on market surveillance and compliance of products ..." (EU Market Surveillance Regulation; EU FMD Regulation) will apply and be directly applicable.

In order to adapt national law in Germany to the EU Market Surveillance Regulation and for the purpose of its implementation, the German government is planning a new national Market Surveillance Act (MÜG), which is already in draft form. The MÜG is to apply to all market surveillance regulations, including those that are not standardized across the EU.

The existing Product Safety Act (ProdSG) is not to be repealed. However, the parallel application of the MÜG and ProdSG could result in overlaps, which is why it is planned to reform the ProdSG as well. For example, the sections on market surveillance and information and reporting obligations will be transferred to the MÜG.

At the same time, the ProdSG is also to be revised from other perspectives. In particular, the regulations for plant operators are to be removed from the ProdSG and another new law is to be created for this purpose, namely a new "Act on Installations Requiring Monitoring" (ÜAnlG). The Ordinance on Industrial Safety and Health (BetrSichV) will be adapted to the new ÜAnlG.

The background to the new ÜAnlG is that these regulations are not prescribed by European law and are aimed at a different addressee than the ProdSG. The previous location in the ProdSG was therefore not optimal. While the provisions of the ProdSG (and those of the forthcoming MÜG) are addressed to the manufacturer and importer, the provisions now transferred to the new ÜAnlG refer to system operators, e.g. operators of elevator systems, filling stations and storage and filling systems for flammable liquids.

New powers of the market surveillance authorities

The powers of the authorities have also been significantly extended. It is now possible to prohibit the placing on the market of entire product types. In addition, the market surveillance authorities may purchase products under a false identity and evaluate them via reverse engineering. The market surveillance authorities can also order withdrawals or recalls.

Also new are the other powers of the market surveillance authorities for the online sector, which arise directly from Art. 14 of the EU FMD Regulation. It is now permitted to instruct online platforms to remove certain content about products on the platforms or to display explicit warnings for end users. If the online platform does not comply with such an instruction, the market surveillance authorities may instruct third parties to restrict access to the online platform.

This affects all online platforms or - in the terminology of the EU EIO - all "online interfaces". An online interface is defined very broadly, namely as "software, including a website, parts of a website or an application, operated by or on behalf of an economic operator for the purpose of making the economic operator's products available to end users".

Violations can result in fines and criminal offenses.

Date: 14. Oct 2020