Not everyone is aware that the Federal Ministry of Economics and Climate Protection (BMWK) coordinates cross-sectoral market surveillance as a statutory task within the Federal Government. It represents Germany in matters of market surveillance at European level in legislative measures and in the enforcement aspects laid down in European legislation. Following coordination between the federal ministries and the federal states, the German Market Surveillance Forum (DMÜF) was set up at the BMWK to advise and support the federal government on market surveillance issues since 2018. For this purpose, the BMWK organises the annual German Market Surveillance Conference. The conference is a joint event of the Federal Ministry of Economics and Climate Protection (BMWK), the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway and the Federal Institute for Materials Research and Testing (BAM).
The aim of the conference is to provide an information and discussion forum for organisations involved in market surveillance issues and interested parties from all sectors. Topics from all areas of market surveillance will be addressed by means of keynote speeches and discussions.
This year the conference was held on September 20 and 21, and focused on the following topics:
- AI market surveillance
- Digitalisation in market surveillance
- New safety requirements for product compliance of radio products
- Current topics from the legal areas
On the topic of "Market surveillance of AI", there are numerous challenges to be tackled. On the one hand, it is about the testing and certification of AI systems (have AI evaluated by AI?) and on the other hand, it is necessary to take a closer look at the opportunities as well as risks from the regulatory and liability law perspective.
On the one hand, reference should be made to the new EU Product Liability Directive and the forthcoming EU AI Liability Directive. On the other hand, the market surveillance authorities do not yet see themselves in a position to check such AI systems for conformity. The challenge here is to both build the expertise and develop possible pathways for market surveillance.
In the context of digitalisation, the presentation on the topic of the "Digital Product Passport" was interesting. The "DPP" is being introduced, for example, by the new EU Battery Regulation and will certainly come into play in other recent legal acts.
In the area of radio equipment, which has become an integral part of our daily lives (e.g. smart home, wireless industrial controls, wireless sensors in the automotive sector or medical devices with built-in WiFi/Bluetooth radio modules), there are new delegated acts on the subject of cybersecurity. Actually, the Delegated Regulation (EU) 2022/30 is mandatory from August 1, 2024:
Note: The EU Commission adopted a draft to extend the deadline to August 01, 2025 on July 20, 2023. So far, however, there has been no publication in the Official Journal of the EU. See also our news of July 24, 2023.
This Delegated Regulation 2022/30 defines in Art. 1 for which type of radio equipment the essential requirements according to Art. 3(3)(d), (e) and (f) will apply. For this purpose, CEN/CENELEC will develop the corresponding standards based on a mandate, which will be named as follows:
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In addition, there will be an amendment of the EU RED Guide to Art. 3 para. 4 with regard to Directive (EU) 2022/2380 (see also the article "New legal standards for radio equipment with USB-C charging interface" ).
In our role as Authorized Representative, the presentation "Responsible Economic Operator according to Article 4 of the Market Surveillance Regulation" attracted a lot of attention. Mr. Torben Hoetter (Bundesratsbeauftragter für das EUPCN, Ministerium für Umwelt, Klima und Energiewirtschaft Baden-Württemberg UM BW) highlighted the importance of Article 4 of the Market Surveillance Regulation 2019/1020 and in particular the tasks and responsibilities of the respective economic operators.
However, initial results of market surveillance measures suggest that some platform operators, online traders, Authorized Representatives, and manufacturers do not fulfill their duties independently and sufficiently. He underlined that there must be a "level playing field" for EU as well as non-EU manufacturers, otherwise there is a distortion of competition. Especially in the case of Authorized Representatives, there is probably a 2- or even 3-class society:
- specified Authorized Representatives do not exist,
- If they do exist, they do not respond to official enquiries,
- they deny in individual cases that they are responsible/responsible for the specific product, or
- no Authorized Representative is named, although the manufacturer is not located in the EU and there is no physical importer or stationary dealer.
A small statistic from Mr. Hoetter on the cases outlined above is reasonably alarming:
- Action 1 (miscellaneous legislation) showed such non-compliance events in 19 out of 21 cases and in the
- Action 2 (climbing equipment) showed non-compliance events in 20 out of 21 cases.
Its conclusions included that the objective of Art. 4 is being deliberately undermined, consumers are being harmed, there is a distortion of competition to the detriment of EU manufacturers and obviously the measures are obviously hardly effective. At this point it should be pointed out that this is possibly one of the reasons for allocating product liability to the Authorized Representative in the future new EU product liability directive if precisely such cases occur (manufacturer is not located in the EU, there is no physical dealer).
Consumers can influence this through responsible and informed consumer behaviour (cheap goods = non-product compliance).
Market surveillance authorities should also be more consistent, faster and more efficient in applying their enforcement powers. Furthermore, Authorized Representatives should be responsible for all products of a manufacturer (single point of contact). In addition, an obligation to register the Authorized Representative could also be a safeguard. And ultimately, more severe penalties for actors who don't play by the rules might also help.
Overall, it was again a highly informative and communicative event, as it is rare to have the opportunity to exchange ideas with all participants at this level.
The presentations will certainly be put online on the DMÜF website at some point.
Do you have any questions about the contents of this market surveillance conference or other topics? We will be happy to advise you!
Author
Dipl.-Ing. (FH) Michael Loerzer
Regulatory Affairs Specialist, certified Product Compliance Officer (PCO)
