Within the EU, work equipment and consumer products do not generally have to be tested or licensed by the authorities before they can be placed on sale. Economic operators (Economic operators include manufacturers, authorised representatives, importers and distributors) are trusted not to place products on the market that do not comply with the regulations. However, this European approach to the free movement of goods can work in the long term only if a functioning market surveillance system is in place.
If individual economic operators fail to observe the regulations, not only does competition cease as a result to be fair, but the safety and health of workers and consumers is also endangered. Instead of checking each individual product before it is placed on the market, the market surveillance authorities must therefore deter economic operators from acting dishonestly by conducting appropriate random checks and applying suitable penalties.
In the same way that the regulations for the making available of products on the market are the same throughout Europe, market surveillance measures should ideally also have the same effect in all 28 Member States of the EU. Dishonest competitors would otherwise merely conduct their activities only in regions in which they encountered the lowest opposition. Consequently, market surveillance in the Single Market works only when it is co-ordinated throughout Europe. It would also be desirable for market surveillance to be stepped up at the EU's external borders such that more noncompliant products were detected as soon as they enter the EU.
Market surveillance requires European coordination
Market surveillance is however not harmonized throughout Europe to the same degree as the regulations for placing products on the market. Regulation (EC) No 765/2008 requires the Member States to set up market surveillance programmes and to equip their authorities with the resources necessary for them to carry out their duties properly. In accordance with the principle of subsidiarity however, it is left largely to the individual Member States to set priorities and set measures for monitoring their own markets.
If the reality on the ground deviates too strongly from the requirement described above upon the market surveillance authorities to conduct effective checks, a risk exists of the economic operators losing confidence in the system and the Member States in each other. For these reasons, the market surveillance authorities have formed groups for certain product areas (such as machinery, PPE, low-voltage equipment, pressure equipment, ATEX) in which they co-operate across national borders.
These "AdCo" (Administrative Co-operation) groups develop joint strategies and positions, and share the wide range of tasks to be completed between them in order to overcome the constraints of their personnel resources. This includes agreeing on what product areas are to be monitored more closely, agreeing on measures for responding to certain product faults, and sharing the task of creating model risk assessments. In addition, the AdCo groups formulate joint positions on how the European body of regulations governing market surveillance should be developed further.
The work of the AdCo groups is not limited to agreeing market surveillance measures in the narrow sense. A task force convened by the AdCo group for machinery is also addressing how the market surveillance authorities could exert greater influence upon the content of standards in order to ensure that the authorities' observations are incorporated into standards as swiftly as possible.
Market surveillance regulation now on hold
At the beginning of 2013, the European Commission presented a proposal for a regulation governing the market surveillance of products (pdf) with the aim of making surveillance more effective. The regulation was originally to be adopted by the end of this year, together with a further regulation governing the safety of consumer products. As yet however, the Council has not been able to agree on certain details of this package.
This is regrettable, since the Regulation on market surveillance would not only lead to the legal principles, which are highly fragmented in the various sectors at present, being more closely harmonized; it would also provide the Commission with greater financial resources for more effective Europe-wide co-ordination. The Member States would be obliged to conduct harmonized measures and to assign resources to them. Co-operation in the AdCo groups, which to date has been voluntary, would also become mandatory.