New EU product safety regulations also relevant for logistics service providers

Producers and suppliers from third countries supplying directly to end users in the European Union are required to appoint a representative responsible for the safety of their products by July 16, 2021. This is stated in the new EU Regulation 2019/1020 which contains rules regarding market access and product safety. This offers interesting opportunities for logistics service providers who distribute these products on behalf of foreign clients. In order to prevent unforeseen risks, it is important to ensure watertight contracts.

Tekst René de Bondt Fotografie SWDV Advocaten

Reason for the regulation

In recent years, there has been an enormous increase in the online sale of products via foreign platforms and web shops. Examples are electrical tools, household equipment, machines, game consoles, toys etc. These products are often ordered directly without the intervention of an importer or distributor. For many of these products it is unknown whether they comply with European product safety standards. For example, a CE mark is often missing or forged. Because the producers are located outside the European Union, it is difficult to hold them accountable. The European Union wants to put an end to this. On the one hand, this will be done by stepping up external border controls in order to stop unsafe products and, on the other hand, by obliging producers to appoint a representative who will be responsible for the safety for the product and can act as a point of contact for the supervisory authorities. The European Union sees a role here for the logistics service provider, referred to as the fulfilment service provider, alongside traditional parties such as importers or distributors.

Fulfilment service provider

According to the Regulation, a fulfilment service provider is a natural or legal person which, during its business, engages in the storage, packing, addressing and shipping of goods. A fulfilment service provider does not own the products but acts on behalf of the supplier or manufacturer. Many logistics service providers whose clients are located outside the European Union and who deliver directly to end users are currently being approached to act as authorized representatives. The authorized representative is the first point of contact for national supervisors such as the NVWA with questions in the area of product safety. This includes providing product information and, in certain cases, warning users and coordinating recalls.

Make sure to have a solid contract in place

Because the logistics service provider can be held responsible for faulty or unsafe products, it is important to prepare for this together with your principal. In the first place, you must be confident that the products distributed by you are safe and meet all relevant technical and safety requirements. You can require the client to provide all information such as declarations of conformity and technical reports for this purpose. Make sure that all agreements are laid down in a contract. In any event, this must include a sound indemnification clause that obliges the principal to reimburse you for all costs and any claims, including legal costs. It is also important to ensure that your client is adequately insured against these risks and that you are co-insured.

* REGULATION (EU) 2019/1020 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 on market surveillance and conformity of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011

For more information, please contact René de Bondt: rbondt@swdv.nl