GEN – 1038.00. This Regulation applies to all products subject to EU harmonised Regulations, e.g. Ecodesign implementing Regulations and provides for an enforcement of market surveillance activities, including the set-up of the UPCN. Within the Regulation, Article 9 opens the possibility for Market Surveillance Authorities (MSAs) and organisations representing economic operators (for example Eurovent) to agree to carry out joint activities in view of promoting compliance, identifying non-compliance and raising awareness about EU harmonised legislation.

Main articles of interest to Eurovent

Article 4

Tasks of economic operators = manufacturers, the authorised representative, the importer, the distributor, etc.

Prescribes that for any product placed on the EU market there must be a responsible economic operator established in EU to assume specific tasks (including verifying that the technical documentation and the Declaration of Conformity (DoC) are created and remain at the disposal of market surveillance authorities (MSAs), upon reason request, informing the MSA if there is a suspicion of a product presenting a risk, and cooperating with the MSA to ensure corrective actions are taken to remedy a case of non-compliance, or if not possible, to mitigate the risks that the product presents).

Article 9

Joint activities to promote compliance

Allows MSAs and organisations representing economic operators to set up an agreement to carry out joint activities in view of promoting compliance or identifying non-compliance, raising awareness and providing guidance on EU harmonised legislation, if this agreement is subject to various conditions: not affecting the parties’ impartiality, objectivity, independence or leading to unfair competition.

Articles 11-16

Powers & duties of MSA

The Regulation harmonises minimum powers that can be exercised by MSAs themselves or via recourse to other public authorities or when applying to competent courts to approve the exercise of a specific power; examples:  the power to seal any premises or seize information, make test purchases, request providers to remove or disable content (online sales), suspend or restrict access to a website or put a domain on hold, impose penalties etc. Moreover, the MSAs should carry out their activities and exercise their powers independently, impartially and without bias. In the case of a non-compliance being identified, the MSA may be authorised to reclaim the total costs spent on their activities (testing, storage, taking corrective actions, etc.) from the economic operator in question.

Article 29-33

Union product compliance network – UPCN, as a platform for structured coordination and cooperation between MSAs

Consists of EC representatives, single liaison offices (designated by Member States to coordinate enforcement on their territory), national MSAs and where appropriate, business representatives & consumer organisations.  The work of the Network is supported by a secretariat under EC responsibility. Tasks: defining priorities for joint market surveillance actions, coordinating enforcement of EU harmonised legislation, coordinating common actions such as cross-border market surveillance activities, developing best practices for MS methods etc. The regulation also specifies that Administrative Cooperation meetings (ADCOs) will be set up to ensure a uniform application of EU harmonisation legislation (only national MSAs & the Commission can access the ADCO meetings, but industry representatives can be invited to attend meetings as observers or to provide written input depending on the subject matter).

The UPCN must be set up by 1 January 2021.

Article 19

Products presenting a serious risk

Obligation of MSAs to withdraw or recall products presenting a serious risk, or prohibit their placing on the market, where there is no other effective ways of eliminating the serious risk; the decision of whether a product presents a serious risk or not should be taken on the basis of a risk assessment (to consider the nature of the hazard and the likelihood of occurrence).

Article 21

Union testing facilities

The EC may designate them for specific product categories; on top of the actual testing, these would oversee new methods of analysis, resolve disputes and give the EC technical & scientific advice.

Article 22

Cross-border mutual assistance

MSAs could use a mutual assistance mechanism to send requests for information or requests for enforcement measures to their counterparts in another Member States. MSAs may use the evidence acquired by MSAs in other MS in their investigations, without further formal requirements. The requesting authority should first itself attempt to obtain information or resolve the case; refusals of requests are only allowed in exceptional cases.

Article 34

Information & communication system

It will be created to collect, process and store information on issues related to EU harmonisation legislation to improve data sharing between Member States and provide an overview of MSA activities & results.

Article 25 & 26

Controls at EU external borders

Customs perform controls of products before release for free circulation, based on a risk analysis. MSAs must inform customs authorities about product types or economic operators where a higher risk of non-compliance has been identified; equally, they must request the suspension of a product for free circulation by the customs authorities, if the former have reasons to believe a product is non-compliant or presents a serious risk.

The Regulation is welcomed and should provide for a level playing field, with an effective market surveillance.

The implementation of market surveillance in Europe

It may prove useful to check every now and again the Commission website on market surveillance. Here one finds the list with the contact details of the national market surveillance authorities.

The past and present national market surveillance programmes are listed as well (not all countries are up to date). An analysis made earlier this year is that there would be limited interest in the market surveillance of most of the products covered by Eurovent. The most recent assessment for ecodesign related to the period 2010-2013. Often Member States refer to their participation in activities funded by the European Commission, for example EEPliant.

Recommended Actions

Manufacturers are recommended to structure the information they need to have at hand in case there is a request for this by MSAs. The required documents are specified in the Regulations that apply to the products. It is suggested that with the Product Group the required documentation is listed to make this task easier for manufacturers.

Related documents and links

All related documents and articles can be found in the respective sections in the right sidebar.

• Regulation 2019/1020: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.169.01.0001.01.ENG&toc=OJ:L:2019:169:TOC.
• EC market surveillance webpage: http://ec.europa.eu/growth/single-market/goods/building-blocks/market-surveillance/organisation_en
• Regulation 2008/765: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32008R0765&amplocale=en
• Decision 2008/768 on conformity assessment modules: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32008D0768
• GEN – 1029.00 – EEpliant 2017-2019 and new activities launched on 19 June 2019
• GEN – 789.00 – EEpliant results 2014-2017 for space heaters and heat pumps