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Health and Consumer Protection

Library - Surveys

WARNING

This study was produced by a consultant of the Centre de Droit de la Consommation, Louvain-la-Neuve, Belgium for the Health & Consumer Protection DG and represents the consultant's views on "The Practical Application of Council Directive 92/59/EEC on General Product Safety".
These views have not been adopted or in any way approved by the Commission and should not be regarded as a statement of the Commission's or the Health & Consumer Protection DG's views.
The European Commission does not guarantee the accuracy of the data included in this study, nor does it accept responsibility for any use made thereof.

The Practical Application of Council Directive 92/59/EEC on General Product Safety - February 2000 - Centre de Droit de la Consommation, Louvain-la-Neuve (Belgique)

Introduction

1.1. Objectives of the study

The study covers a detailed and critical analysis of the transposition and more specifically of the practical implementation of Directive 92/59/EEC concerning general product safety in the 15 Member States of the European Union. Although that was not envisaged in the contract connecting the Commission to the "Centre de droit de la Consommation" (CDC), the centre was asked to extend, as far as possible, the scope of the study to EFTA countries.

Contrary to the directive, which covers all products for human consumption, the targeted study applies only to non foodstuffs.

This study aims to:

- obtain an overall view of the way the directive is applied and implemented in each Member State;

- identify main problems and gaps in the implementation of the directive;

- make recommendations to improve the directive itself or to suggest any other action necessary to an effective implementation of the Community text.

1.2. Summary of the methodology

The methodology called for several means of investigation:

A. Study of the documentation

The first sources of investigation were legislative texts as well as works and written articles of doctrines on the directive in each Member State. The rare case law decisions and the existing administrative decisions on the matter were also compiled and analysed.

Various studies carried out on the situation in Member States before the adoption or the transposition of the directive also served as a base to this research.

B. Pragmatic approach

The study is anchored in the daily practice of the legal instrument of transposition of the directive.

The compilation of opinions by interested parties (administrations, consumer organisations and professional federations) formed the main source of information on the identification of problems or gaps in the system set up by the directive.

Interested parties were interviewed through a questionnaire common to all countries (one for each type of actor). This questionnaire received the approval of the relevant departments of the DG XXIV. It was annexed to the intermediate report submitted to the European Commission in March 1999 within the framework of this study.

C. Group discussion

The study gathered a coordination group bringing together four experts. Two meetings were organised amongst the experts who maintained permanent contacts throughout the study. The first meeting of the Coordination Group, included the experts collaborating in the study and the team of the CDC, and was held in Louvain-la-Neuve on 10 November 1998.

The second meeting of the coordination group took place on 18 June 1999 to discuss the conclusions and recommendations to be indicated in the final report.

The coordination group for the study is composed of the four following experts: Mrs Fr. Maniet, Messrs. H. Micklitz, G. Howells and A. Pinto Monteiro.

1.3. Presentation of the team

The responsibility for the evaluation of the application of the directive in the Member States was divided between three research workers of the CDC and various experts instructed, on the one hand, to carry out visits in the field, and on the other, to write national reports for each country.

Coordination : Françoise Maniet (CDC)

Consumer Law Centre :

- Charles-Emmanuel Côté, CDC: Austria, Denmark, Finland, Sweden, the Netherlands

- Francesca Cottone, CDC: Italy, Greece

- Françoise Maniet, CDC: Belgium, France, Luxembourg, comparative analysis, conclusions and recommendations

Experts:

- Prof G. Howells, University of Sheffield, the U.K.: Ireland and United Kingdom

- Prof H. Micklitz and Th. Roethe, Bamberg University, Germany: Germany

- Prof Pinto Monteiro with the collaboration of F Cassiano back santos, P. Maia, University of Coimbra : Spain and Portugal

1.4. Content of the study

In addition to this introduction, this study comprises four separate segments.

I. Presentation of the fifteen national reports (and EFTA countries)

II. Comparative summary and tables

III. Recommendations for improvements to the directive

IV. Operational summary of the study (+ summary sheets))

A. Presentation of the fifteen national reports (and EFTA countries)

The national reports were written on the basis of the common structure decided at the first coordination meeting.

Each national report is submitted in French or in English and contains four parts:

- a presentation and a detailed analysis of the transposition text (part I);

- a presentation of the institutional framework set up for the application of the transposition text (part II);

- an evaluation of the implementation of the transposition law through a summary of the remarks made by actors concerned, (i.e professionals, administrations and consumer organisations) for each point stated in part I (part III). Part III also includes a description of the way in which competent authorities perceive the procedures of Articles 7, 8 and 9 of the directive;

- a conclusion (summary) pointing to problems, gaps or advantages?? of the implementation of the system as a whole and submitting recommendations with respect to the national law and to the directive (Part IV).

Part I General analysis of the transposition law

This involves:

(i) the identification, for each provision of the directive, of the relevant provision of the transposition act and whether terms used by the national legislation correspond to those used by theCommunity legislation;

(ii) the evaluation of the conformity of the provision relative to the Community text and, if necessary, the reporting of differences which exist between these two texts. In the event of non-conformity of the terminology, the examination of the compatibility of the terminology with results required by the Community text. At this level, this also involves pinpointing the provisions of the transposition texts giving consumers more or less protection than the directive.

Part II. Presentation of the institutional framework

Regarding the institutional framework, national authorities responsible for the implementation of the legislation were described in the study, when this was possible and only when they were designated by the transposition laws. A complete description of the institutional structure responsible for the safety of all products for human consumption and of the supervisory powers of Member States exceeds the framework of this study.

The permanent resources of these authorities were also identified as far as possible (personnel, equipment, budget), and technical expertise available to these authorities was also evaluated (public/private laboratories, testing bodies, committees of experts, etc.)

The study also considers the systems which were developed to ensure the coordination of decisions adopted by competent authorities as well as relations between these authorities and other Member States, the European Commission, businesses and consumer organisations.

The nature and statute of the Committees on Consumer Safety, created in various countries, are also studied.

Finally, as far as possible, information was provided regarding the role of consumer organisations in the field of product safety.

Part III. Practical application of the transposition law

Once legislative texts on the relevant issues have been analysed and competent national authorities identified, we need to look first of all at the way in which legislation is implemented in each Member State.

Are the objectives of the directive really achieved and do Member States possess the same instruments to set up a genuine policy of consumer goods safety. We need to refer to the overall context of the text transposing the directive: its relation to other legislation, the institutional structure set up to ensure compliance to the law, the financial and personnel resources assigned to its administration, its daily application past and present by all actors concerned, including the courts.

This analysis aims therefore to check how the various national provisions are implemented in practice and, if necessary, to indicate the cases in which implementation is not in conformity with the directive.

If this is the case, we need to check the impact of the difference between the text of the directive and that of the transposition act or the difference between the text of the transposition act and its practical implementation. In particular, we will try to establish if the difference is purely legal or if it is likely to have an impact in practice.

Except for the two studied countries of EFTA (Norway and Iceland), this part of the study was carried out mainly on the basis of direct contacts and discussions with the various actors concerned with the directive in each Member State:

- national administrations in charge of the implementation of the directive at central level;

- professionals targeted through one or two professional federations;

- a consumer organisation at national level.

Case law decisions as well as injunctions or administrative decisions taken on the basis of the transposition text were also reviewed.

The procedures provided for in Articles 7, 8 and 9 of the directive, i.e the so called safeguard clause procedure, the Rapex system and the powers granted to the Commission, are generally not included in the national transposition texts since they are more concerned with the links between Member States and the Commission itself. The problems encountered by Member States in the daily management of these procedures were tackled, though not exclusively, in relation to the following points:

- effectiveness and speed of the system;

- problem of the confidentiality of information, in particular with respect to consumer organisations or third countries;

- interpretation of a "serious and immediate danger";

- monitoring of the notifications;

- risks of duplications or of badly qualified notifications.

Part IV. Conclusion and recommendations

Finally, each national report ends in a synthesis of the principal points raised at the time of the analysis of the situation in each country, both at the level of the formal transposition and at the levels of the institutional framework and of the practical implementation of the transposition law.

Recommendations are finally made, with a view to a possible improvement to the national law or to its implementation, together with, as suggested by persons met, recommendations for improvements to the directive itself (or its practical application).

B. Comparative summary and tables

After having carried out the analysis of the transposition texts for each of the fifteen Member States concerned, the description of the institutional frameworks and evaluation of the practical application of the transposition laws in each Member State, we finally wrote a comparative analysis of these three aspects.

It includes a recapitulative synthesis, according to the structure used for all national reports, of the differences noted in Member States between the provisions of the directive and the transposition acts, as well as an analysis of the main difficulties of implementation identified at the time of the application of the directive in the Member States.

It is followed by summary tables of the three principal parts of the national reports: formal transposition of the directive, institutional framework, practical application.

C. Recommendations for improving the directive

Following criticisms made with regard to the directive or with regard to gaps in the application of the transposition laws, recommendations were written, leading to possible amendments to the directive or to the national laws or to suggestions for complementary measures to be taken at Community or national levels.

D. Operational summary and summary files

A summary of the comparative synthetis is presented (in French and in English), accompanied by summary files, allowing the reader who is in a hurry to get acquainted with the broad outline of the study. We must stress the necessarily reductive nature of such a summary, which cannot take into consideration the present nuances in national reports.

1.5. Fieldvisits

The table below contains the list of administrations and organisations visited  by the CDC research workers in the fifteen Member States,  and the experts collaborating in the study. 

Visited countries

Administration

Consumer's organisations

Professional organisations

Germany

(November 98, January and February 99)

-  Gewerbeaufsichtsamt,
Hannover, Lower-Saxony,
17.11. 98

-  Gerbeaufsichtsamt Coburg, Bavaria, 3.2. 99

-  Ministerium für Arbeit und Soziales (Ministry for Labour and Social Affairs of Lower Saxony, Hannover), 20.11. 98

- Bundesamt für
Arbeitssicherheit und Arbeitsmedizin (BAuA), Dortmund, 25.11. 98

-  Bundesministerium für Wirtschaft (Federal Ministry for Trade and Industry), 27.11. 98  

Arbeitsgemeinschaft für Verbraucherschutz (AGV, Bonn), Verbraucherschutz (IFAV, Köln) 29.1. 99

Nationwide department store,  (Karstadt, Neckermann), 26.1. 99

Austria (from 9 to 11 December 1998)

Büro für Konsumentenfragen, Ministry for Women and of Consumer Issues

Verbraucherrat, Österreichisches Normungsinstitut  

Verein für Konsumenteninformation

Wirtschaftskammer Österreich, Sektion Industrie

Belgium

(April 99)

Administration of Quality and safety, Min. for Economic Affairs, on 2 April 1999

Administration of Health Protection, Min. for Public Health (contact by mail)

Test Achats, on 27 April 1999

 

 

Fedis, on 26 April 1999

FEB, on 11 May 1999

Fedichem, on 11 May 1999

Denmark

(28-29 January 99)

Forbrugerstyrelsen (National Consumer Agency of Denmark), 28.1.99


Forbrugerrådet (Danish Consumer Council), 29.1.99

Dansk Handel og Service (Danish Commerce & Service), 29.1.99

Spain

(April 99)

Instituto Nacional of Consumo, 19.4.1999

OCU, June 1999

Union of Galicia Consumidores

Asociacion de Consumidores Gallegos

Instituto Galego of Consumo

Confederation of Empresarios of Galicia

Finland

(9-11 December 98)

Ministry for Trade and Industry, 10.12.98

Product Safety
National Consumer Protection Office 10.12.98

The Finnish Consumers 'Association, 9.12.98

Federation of Finnish Commerce and Trade, 11.12.98

France

(January - February 99)

DGCCRF, 5.1.99

Commission for Consumer Safety, 16.1.99

UFC - Que Choisir, 16.1.99

National Institute for Consumer Affairs (telephone conversation and written correspondence)

 

French Toy Federation, 16.1.99

GIFAM, 4.2.99 (telephone conversation)

 

Greece

(April 99)

Directorate of technical control, General Directorate for Consumers, Ministry of Development

 

EKPIZO

Federation of the Greek Industries

Ireland

(15 February 99)

Office of the Director of Consumer Affairs

Consumer Protection Branch of the Department of Entreprise, Trade and Employment, le 15.2.99

Council member
of the Consumer Association of Ireland, 15.2.99

Irish Business and Employers Council (IBEC)
(contact by mail and telephone because return-see cancelled at the last moment)

Italy

(18-19 November 98)

Ministry for Industry, Direzione general per it armonizzazione e the tutela del mercato, the 19.11.98

Ministry of Health, Dipartimento della prevenzione, 16.11.98

Adiconsum, 18.11.98

"Confindustria", the 19.2.99 (telephone interview)

Luxembourg

(30 April 99)

Service Prix, Competition and Consumers, Ministry for the Economy, 30.4.99

Ministry for Economic Affairs, 30.4.99

The Luxembourg Consumers Union (telephone contact and by mail only)

The Chamber of Commerce

The Netherlands

(6 May 99)

General Inspectorate, Inspectie W&V

Consumentenbond

Vereniging VNO-NCW (telephone contact)

Portugal

(April 99)

Instituto do Consumidor

The Safety provisions Commission

General Inspection for Economic Activities  

DECO

Confederation of Trade and services

The United Kingdom

(13-19 and 20 January 99)

DTI, Consumer Safety Unit

LACOTS, 20.1.99

Consumers Association, 19.1.99

 CIEG, 19.1.99

CBI General product safety working group, 13.1.99

Sweden

(3-5 March 99)

Konsumentverket, KO

Consumer Policy Department, Ministry of Finance

 

Commercial Affairs, Swedish Trade Federation

Non visited countries

Administration

Consumer organisations

Professional organisations

Iceland

Contact by mail , Market Surveillance Department,

/

/

Norway

Contact by mail, Ministry for Children and Family Affairs

/

/

1.6. Summary of the transposition laws

The attached table refers to useful legislative references.

Member State

Transposition law

Germany

Gesetz zur Regelung der Sicherheitsanforderungen an Produkte und zum Schutz der E-Kennzeichnnug vom 22 April 1997

Austria

Federal Act on Protection against dangerous products, 1994 of 18 January 1995

Belgium

Law of 9 February 1994 on consumer safety

Denmark

Danish Product safety Act, n°364 of 18 May 1994

Spain

LGDCU 26/1984

+ Real Decreto 44/1996 de 19 de enero, por el que se adoptan medidas para garantizar la seguridad general de los productos puestos a disposicion del consumidor

Finland

Product Safety Act of 1986 (914/1986) last amended in 1993 (539/1993)

France

Law n°83-660 of 21 July 1983 on consumer safety (Article L 221-1 and following .Consumer Code)

Greece

Law N° 2251 of 16 November 1994 on consumer protection , Article 7 +Decision 15/2/1995

Ireland

General product Safety Regulations of 25 April 1997

Iceland

Product safety and Official Market control n°134/1995

Italy

Decreto Legislativo n°115 in data 17 marzo 1995

Luxembourg

Law of 27 August 1997 on general product safety

Norway

Product Control Act 11 June 1976

The Netherlands

Law on the quality control of the 1935 products, last amended by the law of 21 April 1988

+ Decree of 28 September 1993 on regulation of general product safety

Portugal

General law 1981 + 24/96

Decreto-lei 311/95 of 20 of Novembro 1995

United Kingdom

Consumer Protection Act 1987

+ Statutory Instruments 1994 n°2328 Consumer protection, The General Product Safety Regulations 1994 of 5th September 1994

Sweden

Product safety Act of 22 December 1988, Amended 1/7/1999

Part I - Presentation of national reports

Part II - Comparative analysis and tables 

          Tables

Part III - Recommendations (53 KB)

Part IV - Operational summary of the study (29 KB)

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