Withdrawal and recall of dangerous products in the European Community and the Member States

European Commission Directorate-General For The Environment Directorate-General For The Information Society And Media

Description

Environmental degradation
Consumers' health
Environmental research

Sujets

• Consumer protection
• Dangerous goods
• Safety standards

Informations

• Publié par: EUROPEAN-COMMISSION-DIRECTORATE-GENERAL-FOR-THE-ENVIRONMENT-DIRECTORATE-GENERAL
• Nombre de lectures: 49
• Langue: English
• Poids de l'ouvrage: 4 Mo

Extrait

FUR, -io.^ûi
Commission of the European Communities
environment and
quality of life
Withdrawal and recall of dangerous products
in the European Community
and the Member States #*fc 3o*o a s
Commission of the European Communities
environment and
quality of life
Withdrawal and recall of dangerous products
in the European Community
and the Member States
A general comparative report prepared for BEUC
by
J. Stuyck
Senior Lecturer at the Faculty of Law,
University of Leuven
and
Member of the Brussels Bar
Contract No V/82/232
Contractor: BEUC
Bureau Européen des Unions de Consommateurs
29, rue Royale
B-1000 Brussels
PARL EUROP. Biblioth.
Directorate-General
Environment, Consumer Protection and Nuclear Sftfétyifei ' '
1986 Published by the
COMMISSION OF THE EUROPEAN COMMUNITIES
Directorate-General
Information Market and Innovation
Bâtiment Jean Monnet
LUXEMBOURG
LEGAL NOTICE
Neither the Commission of the European Communities nor any person acting on
behalf of then is responsible for the use which might be made of the
following information
Cataloguing data can be found at the end of this publication
Luxembourg, Office for Official Publications of the European Communities, 1986
ISBN 92-825-6241-7 Catalogue number: CD-NO-86-002-EN-C
© ECSC-EEC-EAEC, Brussels · Luxembourg, 1986
Printed in Luxembourg ABSTRACT
It is estimated that each year between 15.000 and 30.000 deaths are due to
product related accidents in the European Community. The number of injured
people is about four to five million. An important part of these accidents are
caused by dangerous products : unsafe electric appliances, contaminated food,
unreliable cars, drugs showing unexpected side-effects
The aim of this report is to look at the legal instruments available to the
EEC, its Member States and the international Community to prevent these acci­
dents. Special attention is paid to the techniques for withdrawal of dangerous
products from the market and their recall by manufacturers.
The acknowledged instruments of rapid and appropriate action to be taken in
case of product hazards or the likelihood of product hazards (in particular for
the life and health of consumers) include information to the public, orders by
the public authorities addressed to manufacturers to withdraw a product or a
product batch from the market and (mandatory) recall of products from consumers
in view of their repair or destruction.
These instruments are hardly developed in most of the Member States. At best
they exist in some countries for certain types of product (such as drugs and
electric appliances). The powers under the UK Consumer Safety Act 1978 however
do include orders from the Secretary of State to withdraw products from the
market. In this country voluntary collaboration of trade and industry with the
public authorities seems to play an important role. A comprehensive statutory
system of prevention including product recall, should be introduced in France
by virtue of the Consumer Safety Act of 1983. In the Federal Republic a case
law has developed liability rule and induced manufacturers to supervise to a
certain extent their products which are already on the market and to recall
them in certain cases.
At Community level a first step has been taken by the Council decision of 2
March 1984 introducing a Community system for the rapid exchange of information
on dangers arising from the use of consumer products. By virtue of this deci­
sion any Member State which decides to take urgent steps to prevent, restrict
or attach particular conditions to the marketing of a product, shall imme-
— ill — diately inform the Commission, which will then transmit this information to the
other Member States. However the Council decision does not empower the Commis­
sion to take appropriate measures in response to the information received, such
as rapid information addressed to the public as the EEC consumer programme sti­
pulates. New initiatives at EEC level are expected in the field of the colla­
tion of information on product accidents.
Both the Community system on rapid exchange of information and the other pro­
posed systems at EEC level are based on co-operation between Member States and
the EEC Commission. A duty for manufacturers and traders to inform the Commis­
sion (or any other authority) of any (serious) product hazard they are aware
of (such as imposed by section 15b of the US Product Safety Act) is not being
considered.
Experience with preventive measures in the EEC Member States shows that often
products withdrawn from the market of one Member State·are still available in
other Member States. Likewise imports into Europe of unsafe products from
third countries (including industrialized countries like the US) is a well
recognized problem. Much less attention however, is paid to the export of
dangerous products prohibited in the EEC to developing countries with lower
safety standards and/or a lower degree of pro- duct surveillance. Initiatives
to cope with the problems of international trade in dangerous products have
been taken at EEC level (resolutions taken by the European Parliament) and at
international level (WHO Code of Ethics for international trade of food 1979,
OECD recommendation 1981, UN General Assembly Resolution, Recommendation of
the Parliamentary Assembly of the Council of Europe on the sale of European
pharmaceutical products in the countries in the Third World). None of these
instruments has a binding force. However their legal significance must no be
underestimated because they may contribute to the necessary political climate
for creating legally enforceable protection. Moreover public and private bodies
have set up systems on the international exchange of information concerning
hazardous products : WHO, ILO, FAO, GATT, OECD and the European and Interna­
tional Consumer Organizations (BEUC and IOCU).
Taking into account the experience with prevention of and rapid action against
product hazards in the Member States and at Community level, the report con-
— IV — eludes with a number of recommendations. Attempts to review the present legal
regulation of product safety should be based on the following principles :
1. A legal obligation under which manufacturers and importers place only safe
products on the market.
2. Such a general obligation and liability must not make superfluous more
detailed safety rules, or legally binding safety standards, for specific
products with high safety risks, such as pharmaceuticals, electrical goods
and motor vehicles
3. - The development of a system or rapid exchange of information between
Member States about product related injuries and product hazards and
of an adequate Community system of data.
Manufacturers, importers and distributors should inform the authori­
ties (in charge of taking or ordering a product withdrawal or recall)
of any serious product hazard pertaining to their products unless
these authorities are already adequately informed.
4. In case of product accidents, or where there is a serious suspicion that
products already marketed will cause injury, an authority (a public or
private body) should have the power to take all appropriate precautionary
emergency measures. Specifically four measures should be available : a)
the possibility of a ban on further production or sale implying the duty
for manufacturers and importers to withdraw all existing stocks of the
dangerous product or product batch from the market; b) the possibility of
a recall procedure, whereby the manufacturer or any other responsible
trader can be compelled to recall the products already sold to consumers
with a view to repair, modification or replacement; c) the possibility of
issuing warning to the public as to the dangers revealed: d) the possi­
bility of a ban on exports.
5. Appropriate rules should govern the liability of the body empowered to
take product safety measures.
— V — ACKNOWLEDGEMENTS
This general report is based mainly on national reports prepared by experts
from the Member States of the EC. The working group of national rapporteurs
(end 1982 - middle 1983) was conducted by Yves Domzalski, Press Officer and
responsible for health and safety at the Bureau Européen des Unions de
Consommateurs (BEUC).
Most of the preparatory work (drafting of the questionnaire submitted to the
national rapporteurs) was done by our regretted friend, Georg Kögler, to whom
this report is dedicated. Georg Kögler, a gentle and subtle personality, was a
bright and committed lawyer. He was tragically killed in an accident in the
early years of what should have- become a brilliant career.
The national rapporteurs were :
Prof Guido Alpa, Università degli Studi di Genova, Istituto di Diritto
Privato Generale, for Italy.
Mr Didier Berges, (Directeur Juridique - Union Fédérale des Consomma­
teurs) for France.
Dr Antoni Brack, Technische Hogeschool Twente, Entschede - Drienerlo, for
the Netherlands.
Prof Borge Dahl and Prof Elizabeth