Market surveillance: the European concept and national enforcement

Stefan Pemp worked for many years as a head of department and head of inspectorate at municipal labour inspectorates, and from 2001 to May 2024 as the head of market surveillance of technical products at the Ministry for Social Affairs, Health, Labour and Equal Opportunities of Lower Saxony. Based on his experience with European market surveillance, he offers suggestions from a “worm’s-eye view” on how it could be developed further.

The European Union is important to its Member States, as it lends them a voice in the world. However, it is crucial not only that the EU should exist, but that the economic, political and legal framework conditions that it creates are actually practicable for the Member States.

The purpose of market surveillance

The mission and purpose of European market surveillance is to facilitate the free movement of goods throughout Europe in a fair market. Performance of market surveillance in practice is delegated to the authorities of the individual Member States (refer to the EU Market Surveillance Regulation 2019/1020). Originally, the legal framework for this delegation was set out in EU directives, which were to be transposed into the national law of each Member State. EU regulations, which apply directly in all Member States, are now increasingly being adopted in place of directives. Enforcement of the regulations, however, still requires supporting national legislation.

The change from directives to regulations is linked to the desire for greater homogeneity and clarity. The idea of a central European market surveillance authority is also raised on occasions in this context. The advantages would include better distribution of resources (particularly in high-tech areas such as artificial intelligence, where experts are difficult to recruit), the avoidance of duplication of effort, and improved coordination at national and European level.

The European reality

In practice, certainly in Germany but probably also in other EU Member States, European law collides with an evolved culture of national administrative law that may vary greatly from one Member State to the next (von Bogdandy et al. (eds.), Ius Publicum Europaeum vol. V, 2013). Phrasing used in EU regulations, such as “market surveillance authorities […] shall without delay require the relevant economic operator […]”, may have no direct equivalent in German administrative law, and give rise to uncertainties for the market surveillance authorities. Does “require” imply mere communication, or does it constitute an administrative act?

In my view, the problem here is that however good a translation may be, it does not correspond perfectly to an application in the national legal systems. In the past, this could generally be resolved by taking account of national circumstances during the transposition of EU directives into national law.

Where deficits concerned purely formal rather than substantial obligations (e.g. merely a failure to affix the CE mark), they were generally regarded, in the German administrative tradition, as being trivial. This, too, reveals a problem caused by differences between countries in their respective understanding of the law, as the national administrations may vary in how strictly they act within their margin of discretion.

If the view is correct that traditions of administrative law in Europe are highly heterogeneous, a European (i.e. centralized) market surveillance authority brings with it not only opportunities for harmonization and effectiveness, but also a high risk of not being accepted, since the national players are informed by the practices of their respective administrations. Large companies will probably be able to overcome problems of legal comprehension with the aid of relevant personnel. Smaller companies, however, are more likely simply to give up in such cases. Both the enacting of legislation by the EU and the existence of a central EU authority could be perceived as remote and aloof, and thus also be a target for demagogic criticism.

Goal and process

Against this backdrop, I consider it crucial to make the case for three things:

1. Creating simple rules is preferable to explaining complicated ones.
2. Ambitious goals should be set, and not abandoned in the face of immediate obstacles.
3. During selection of the process and timing for implementation of the goals, consideration must be given to the obstacles as applicable.

From my practical experience, gained over 20 years in shaping and implementing market surveillance policy, I consider points 2 and 3 particularly important. A task will not be addressed adequately if one allows oneself to be hindered in achieving one’s goals. Conversely, attempting to achieve everything at once results in the topic becoming toxic.

Market surveillance requires more than just a common language. In practice, even mere communication with authorities in different Member States presents difficulties, owing to limited language skills. Above all, however, a common understanding is needed of what we want – and this is where things become very difficult. This common understanding must be developed on the part of authorities and economic operators if it is to meet with acceptance. I consider this process essential, but it will be neither short, nor smooth.

To enable this process to be followed successfully, it is desirable for the EU to continue to set itself ambitious goals, both generally, and specifically in market surveillance, to make the necessary resources available, and to allow itself the necessary time.

Stefan Pemp