Division 2.2 Non-mandatory participation in RAPEX: Article 11 of the GPSD and Article 23 of Regulation (EC) No 765/2008

According to Article 11 of the GPSD, Member States should inform the Commission of measures taken which restrict the placing on the market of products — or require their withdrawal or recall — insofar such information does not qualify for an Article 12 nor any other notification set out in any specific Community legislation.

For the sake of simplification and efficiency gains, Member States may also make use of the RAPEX application to notify measures taken against products which would not qualify for submitting an Article 12 notification in the terms outlined herein.

Where the following four notification criteria are met, Member States have a legal obligation to notify the Commission under Article 11 of the GPSD:

1. (a)

   the product concerned is a consumer product;

2. (b)

   it is subject to restrictive measures adopted by national authorities (compulsory measures);

3. (c)

   it poses a less than serious risk to the health and safety of consumers and the effects of which can or do go beyond the territory of one Member State or, it poses a serious risk to the health and safety of consumers and the effect of which do not or cannot go beyond its territory yet the measures adopted involve information likely to be of interest to other Member States from a product safety standpoint^f1;

4. (d)

   The measures adopted do not have to be notified under any other notification procedure established by EU law.

Notwithstanding the fact that Article 11 of the GPSD does not contain an explicit obligation to notify voluntary measures adopted against products posing a less than serious risk, Article 16 of the GPSD requires Member States and the Commission to make information relating to risks to consumer health and safety available to the public. Therefore, for the sake of coherence in the notification system and to effectively implement the obligations both Member States and the Commission have according to Article 16 of the GPSD, Member States are recommended to notify in RAPEX also voluntary measures adopted by the producers and distributors against products posing a less than serious risk.

According to Article 23 of Regulation (EC) No 765/2008 Member States provide the Commission with information at their disposal, and not already provided under Article 22, on products presenting a (less than serious) risk. Contrary to Article 22 of this Regulation, Article 23 does not oblige Member States to submit a notification to RAPEX with this information. Article 16 of the GPSD obliges, though, the Commission and the Member States to make public the information they may have relating to risks to consumer health and safety. For the sake of coherence and to effectively implement the obligations contained in Article 16 of the GPSD, the most pragmatic solution could be for RAPEX to contain all measures adopted against products presenting serious and less than serious risks to consumer health and safety both for GPSD products and products covered by Regulation (EC) No 765/2008, and in the latter case, also to other relevant public interests of the end-users. Therefore, when measures are adopted and provided through ICSMS according to Article 23 of Regulation (EC) No 765/2008, Member States are encouraged to notify such information in RAPEX. This can be done either by submitting a separate notification in RAPEX or through ICSMS.

A link between both systems facilitates the encoding of notifications based on investigation data already available in ICSMS. (See Part II, Chapter 1.2(h)).

A notification scheme is included in Part III, Appendix 3 of these Guidelines providing further clarification on the notification criteria referred to in Part II Chapter 2 of these Guidelines.