The European Commission’s 150-page "'Blue Guide' on the Implementation of EU products rules" (the Blue Guide) is critical to a proper understanding and interpretation of the vast majority of product laws under the EU new legislative framework.
Last issued in 2016, the guidance is, however, becoming out of date. This is particularly so in relation to its treatment of the digital economy, software and e-commerce. However, updates to it are in progress. These updates also relate to aspects of the circular economy such as the remanufacturing and treatment of used goods, certain legal implications of Brexit, and coherence with the EU’s ongoing enhancement of its market surveillance and enforcement regime, as well as including a handful of clarificatory changes, for example, around the position of “end-users” and “own use” of products.
Revisions to the Blue Guide are nearing completion, with the majority of edits made and the Commission due to publish the new guide in mid-2021.
Based on the latest draft text, this article briefly summarises the key changes as we see them.
What is not changing?
Readers who are closely familiar with the Blue Guide and its many nuances will be relieved to know that the new Blue Guide will not be a complete re-write. Subject to the points noted below, its core structure and key concepts will remain largely unchanged.
In particular, the detailed definitions of the key trigger points of “making available”, “placing on the market” and “putting into service” are not materially changed nor, in broad terms, are the key descriptions of “manufacturer”, “authorised representative”, importer” and “distributor”.
Online sales and “placing on the market”
A number of the draft amendments aim to bring the guidance up to date in respect of the increased prevalence of e-commerce, including rules around products sold online.
In particular, the draft expands on the test for whether a product offered for sale online is considered to be “placed on the market” in the EU. While it states that an offer for sale is considered to be targeted at end-users in the EU if the relevant economic operator directs its activities to a Member State, it also states that the mere fact that the economic operator’s website is accessible in the Member State in which the end-user is established is insufficient. The draft also clarifies that the physical fulfilment of an order for a product sold to end-users in the EU by an online seller based outside the EU, including by a fulfilment service provider, gives irrefutable confirmation that the product is placed on the EU market regardless of whether the seller is based in or outside the EU.
The draft also states that the timing of “placing on the market” may differ for each individual product sold via an online offer. For example, when an offer concerns a product that has not yet been manufactured, the placing on the market will only take place after the manufacturing stage has been completed. However, for a products already manufactured, the placing on the market occurs at the moment it is offered for distribution, consumption or use on the EU market. The legal consequence is that, when the offer does not concern a product that has already been manufactured, the obligation on the relevant economic operator to cooperate with the market surveillance authorities will not apply until after the manufacture has been completed.
Fulfilment service providers (FSPs)
The draft provides updated guidance on FSPs following their inclusion in the Market Surveillance Regulation 2019/1020 as an additional category of economic operator. This is contrasted with the current Blue Guide, which states that FSPs should be considered as “distributors” and must meet the corresponding requirements.
FSPs are defined in the Market Surveillance Regulation as any natural or legal person offering, in the course of a commercial activity, at least two of the following services: warehousing, packaging, addressing and dispatching, without having ownership of the products involved, excluding postal services, parcel delivery services and any other postal services or freight transport services. The draft revisions to the Blue Guide reiterate this, and state that FSPs are to be considered economic operators who must cooperate with enforcement authorities to address issues of non-compliance with the products they handle, and against whom enforcement action can be brought.
Responsible economic operators (REOs)
The Market Surveillance Regulation also specifies that, for certain product categories, there must be an economic operator in the EU able to carry out a number of tasks, including cooperation with the market surveillance authorities. The draft Blue Guide includes a new section on REOs, which lists the possible candidates (including an FSP established in the EU where there is no eligible EU-based manufacturer, importer or authorised representative).
The draft notes that a number of the REO’s tasks will already be fully or partially covered by their obligations under EU harmonisation legislation, depending on the type of economic operator they are; for example, a number of the obligations overlap significantly with the commonly applied manufacturer and importer obligations. Importantly, however, the draft goes on to say that when the REO is an authorised representative or an FSP, they will not have to take corrective action or mitigate risk themselves, but will need to ensure that the necessary action is undertaken, e.g., by requesting the manufacturer to follow up and verify whether it has done so.
Another point the draft makes is that all REOs must indicate their name and contact details on the product or its packaging. It states that where multiple names and details of economic operators are indicated on the product, it should be made expressly clear which of them is the REO.