Selling online

Definition

In EU legislation, the term ‘online selling’ refers to products being sold in distance sales, such as through a website of a trader (e-shop), via an online marketplace or app. Online marketplaces are considered as intermediaries under the current legislation (when the same business also acts as a distributor, manufacturer, importer, or fulfilment service provider for certain products, in relation to those products, they are considered as economic operators). Moreover, business models are getting more and more complex and traditional e-shops are now also offering marketplace solutions often via the same interface. Therefore, the focus shall be always on the sale of a concrete product and the offered services linked to this product, rather than on businesses as a whole.

The actors in the distribution chain

In general, there are up to three commercial actors involved in online trade when products are manufactured outside the EU:

• A manufacturer (outside the EU), who produces the product (or has it produced under his brand name). Manufacturers may sell their products directly to the EU market or they may sell to a trader outside the EU.
• A trader (outside the EU), who buys products from a manufacturer and sells them to the EU market.
• A responsible person in the EU (see section below headed, ‘Obligation to appoint a responsible person within the EU’

The manufacturer’s obligations

The safety requirements for products sold online are exactly the same as those for products offered for sale via any other sales channel. The manufacturers have the obligation to:

• Only produce and supply safe products and document it accordingly. For some product categories – such as toys, electrical products and personal protective equipment – this will require compiling technical documentation (including an EU declaration of conformity) which evidence that the conformity assessment has been carried out. (See factsheets on conformity assessment, technical documentation and EU declaration of conformity)
• Ensure correct product labelling (such as traceability information and, where appropriate, CE marking)
• Monitor the safety of their products, including through product testing, investigating consumer complaints, etc.
• Notify relevant national market surveillance authorities about the corrective actions they intends to take, if they suspect having placed an unsafe product on the EU market. For such exchanges, the manufacturer can use the Product Safety Business Alert Gateway, which is a tool enabling economic operators to directly inform relevant national authorities about dangerous products they are responsible for.
• Appoint a responsible person in the EU. This requirement applies to certain product groups listed in Art. 4(5) of the Regulation on Market Surveillance and Compliance of Products. These include for instance toys and electrical products.

Obligation to appoint a responsible person within the EU

(Applicable for product groups listed in Art. 4(5) of the Regulation on Market Surveillance and Compliance of Products)

A business that wishes to sell its products to the EU market must have an economic operator in the EU that can represent it (a “responsible person”). It is illegal for businesses to sell directly from a web shop outside the EU to consumers in the EU, without having such a responsible person.

The types of business that could take on the role of the responsible person in the EU for businesses situated outside the EU shall be one of the following:

• an importer, where the manufacturer is not established in the Union;
• an authorised representative who has a written mandate from the manufacturer designating the authorised representative to perform certain tasks on the manufacturer’s behalf;
• a fulfilment service provider established in the Union with respect to the products it handles, where no other economic operator as mentioned in the two above points is established in the Union.

This responsible person must have a working office in an EU Member State. It is not sufficient to have a mailbox. The responsible person must be a legal person, i.e. a business.

The responsible person shall perform the following tasks:

• Verify that the declaration of conformity and the technical file have been drawn up.
• Store the declaration of conformity for at least 10 years.
• During these 10 years, provide the declaration of conformity and the technical file to an EU market surveillance authority in less than 10 days upon request.
• Contact the market surveillance authorities, if they have reason to believe that the product is unsafe.
• Cooperate with the market surveillance authorities or take action themselves to remove unsafe products or mitigate risks posed by the unsafe products.

The responsible person must be identified so the consumer can contact him. Therefore, the name, trade name or trade mark of the responsible person as well as the contact details (including the postal address) shall be indicated on the product, on the packaging, on the parcel or at an accompanying document.

Authorised representatives

If the responsible person is an authorised representative, then the legislation establishes the following requirements in addition to the above:

• The authorisation must be given in a written mandate.
• The authorised representative shall provide a copy of the mandate to the market surveillance authorities upon request.
• The authorised representative shall have appropriate means to be able to fulfil his tasks.
• The authorised representative shall be mandated to perform the tasks that are required from a responsible person.

Selling online – other key responsibilities

Important manufacturers’ responsibilities are described above. However, anyone else selling online can help ensure product safety by undertaking a number of simple tests of the product and the technical documentation:

• Check that the technical documentation exists and is complete. In practice, the easiest way to do this check may be to visit the manufacturer and go through the technical documentation on the spot.
• Check that you are selling the same version of the product that is mentioned in all documents. The brand name, model name and type number must be exactly the same on the product as in the papers. You must always be able to connect the documentation and the product to each other.
• Acquire the EU declaration of conformity and check if the product has to be CE-marked. Check in particular that it is dated and signed. If it is correct, then send it to your EU representative. He must store it for 10 years after the last item of the product has been sold.
• Check the marking of the product. To do so, you need to see the product. Again, the easiest may be to visit the manufacturer. Alternatively, you can ask the manufacturer to send an item of the product or to provide you with a photograph of the marking plate.

Further details can be found in the Product safety checklist factsheet.

Consumer rights

EU consumers, targeted by the online offers enjoy the same consumer rights as any other consumer in the EU. This means that EU consumer laws provide consumers with the following key rights:

• The right to truthful advertising.
• The right to have faulty goods repaired or replaced.
• The right to contracts without unfair clauses.
• The right to return most goods purchased online within 14 days.
• The right to access goods and services on the same terms as local customers.
• The right to free assistance from European Consumer Centres for problems with a trader based within the EU and wider European Economic area.

More details can be found in the factsheet on consumer protection.

Further guidance

• “Guidelines for economic operators and market surveillance authorities on the practical implementation of Article 4 of Regulation (EU) 2019/1020 on market surveillance and compliance of products”
• The “Blue Guide” on the implementation of EU product rules 2020
• The ‘Helpful product safety checklist for anyone selling into the EU’. 

Related topics

Topics that apply to all product categories:

• EU market surveillance
• Product safety checklist
• Recall procedures
• Risk management
• Safety Gate / RAPEX
• Testing

Further topics only applicable to certain categories of products:

• CE marking
• Conformity assessment
• Declaration of conformity
• Technical file
• Using a third party

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