EU market surveillance

Definition

Market surveillance is defined as the activities carried out and measures taken by market surveillance authorities to ensure that products comply with the requirements set out in the applicable EU legislation.

A market surveillance authority is an authority designated by a Member State as responsible for carrying out market surveillance in the territory of that Member State.

Legal base

The legal base for market surveillance on products falling under the harmonised product safety legislation is Regulation (EU) 2019/1020, in particular the articles 14 – 17. The most relevant points for a manufacturer or other economic operators are:

• All EU Member States must designate market surveillance authorities with powers to undertake market surveillance investigations and enforcement.
• Market surveillance authorities must have powers amongst other matters to:
  • obtain any kind of relevant technical documents;
  • obtain product samples for inspection and investigation;
  • obtain information on the supply chain, deliveries and similar product models;
  • impose penalties;
  • order economic operators to take corrective action or to take action themselves
  • corrective actions include:
    • bringing the product into compliance;
    •  preventing the product from being made available on the market;
    • withdrawing or recalling the product;
    • destroying the product;
    • warning the end users, e.g. through publication of warnings in public media.
• Market surveillance authorities can reclaim costs for their investigations from the economic operators if the product turns out to be non-compliant.
• Market surveillance authorities shall respect confidentiality as well as professional and commercial secrets.

Market surveillance in practice

Steps in a market surveillance investigation

Market surveillance investigations concerning specific products go through the following steps:

1. Screening of the market with the purpose of identifying products that will most likely be non-compliant. In addition, market surveillance activities may be in response to a consumer complaint or other information received.
2.  Contacting the economic operator to request and examine the EU declaration of conformity (if it is required for the product) as well as further technical documentation.
3. If the investigation of the documents gives reason to suspect the product of being non-compliant or unsafe, then the market surveillance authority will sample the product for further investigation. This stage normally includes a preliminary investigation of the product by the market surveillance authority to identify those tests and parameters that the laboratory should focus their investigations at.
4. The product is sent to a laboratory for testing. Testing will be carried out according to a harmonised standard. The test laboratory will issue a detailed test report.
5. Next, the market surveillance authority will evaluate the test results to determine whether the product complies with the legislation. This will include a risk assessment of the non-compliances that have been identified to establish the risk level. This is described in the factsheet on risk management.
6. When the evaluation has been done, the market surveillance authority will contact the economic operator to discuss the results.
   If the economic operator agrees with the findings of the market surveillance authority, the economic operator can take action themselves to mitigate the risks (voluntary measures). This could include measures such as bringing the product in conformity, withdrawal or recall of the product, repairing the product, etc.
7. The market surveillance authority can also determine appropriate measures that the economic operator is obliged to take (mandatory measures).
8. Subsequently, the market surveillance authority will engage in various activities to follow up. These include submission of a notification to the EU Safety Gate system, uploading information about the case to ICSMS (the Information and Communication System for the pan-European Market Surveillance), and verifying with the economic operator to check that measures are implemented and indeed do remove the risk from the market.

Customs authorities’ role in market surveillance

Customs have a very important position in market surveillance as they can intervene in the supply chain and prevent an unsafe product from entering the market. Consequently, Regulation (EU) 2019/1020 establishes a framework for cooperation between the market surveillance authorities and the customs authorities in the EU Member States.

This means that customs have the legal powers to suspend the release of goods for up to 4 days if they suspect that the products do not comply with EU legislation or present risks to the consumers. This 4-day period will allow customs to contact the market surveillance authority that will have time for undertaking a focussed examination of the products to determine whether it can be released or it should be prohibited to import the product and place it on the EU market.

If the market surveillance authority does not react within 4 days, then customs will release the goods.

Other activities

Besides the everyday work of testing campaigns and investigations on their national markets, market surveillance authorities undertake several different activities in a wider European context:

• Coordinated market surveillance projects at European level targeted at specific product categories based on the information the authorities have about market risks. Such projects may include an international dimension like cooperation with non-EU countries.
• Cooperating with customs authorities to prevent unsafe or otherwise non-compliant goods from entering the European market.
• Exchange of information between European Union market surveillance authorities based of notifications in the EU Safety Gate system.

Obligations and rights of economic operators

According to EU legislation, economic operators have certain obligations and rights when it comes to product safety.

Obligations under Regulation (EU) 2019/1020:

• If an economic operator finds out that a product placed on the market is not in conformity with the legal requirements, they must take immediate corrective measures. Further information is available in the factsheet on recall procedures.
• If the product presents a risk, then they shall immediately inform the market surveillance authorities in all the Member States where the product has been sold.
• The economic operator shall cooperate with the market surveillance authorities and provide them with all the information and documentation necessary to demonstrate the conformity of the product.
• The economic operator shall cooperate with the market surveillance authorities on any action taken to eliminate the risks posed by the product.

The economic operator has the following procedural rights according to

• the right to know the exact grounds for a measure imposed by a market surveillance authority.
• the right to be informed about how he can complain about the measure or decision.
• the right to be heard within a period of not less than 10 working days before the measure or decision takes effect, unless this would seriously compromise the health or safety of consumers or other public interests.

Further guidance

More information is available at:

• Safety Gate – the rapid alert system for dangerous non-food products
• Information about the ICSMS system is available here.
• The ‘Blue Guide‘ on the implementation of EU product rules 2020
• The European Commission’s website on legislation and enforcement, in particular the CASP activities.

Related topics

• CE marking
• Conformity assessment
• Declaration of conformity
• EU consumer protection
• Product safety checklist
• Recall procedures
• Risk management
• Safety Gate / RAPEX
• Selling online
• Technical file
• Testing
• Using a third party

You may also visit the SPEAC ACADEMY to learn more about the EU Safety requirements.