New Approach meets new economy: Enforcing EU product safety in e-commerce

Abstract

This article reviews recent regulatory initiatives in the area of EU product safety legislation and market surveillance from the angle of e-commerce through online marketplaces. With the arrival of the internet, the sale of non-compliant and illegal consumer products has proliferated. E-commerce and globalized supply chains are challenging a regulatory system that is fragmented, highly technical and slow to respond to the dynamic changes introduced to the marketplace. The EU Commission’s 2017 notice on the surveillance of products sold online and its latest proposal for a new regulation on enforcing product compliance rules testify to the unsatisfactory state of progress in this area. A reason for this may be seen in the history and nature of New Approach style product law, which outsources technical product regulation to the industry and entrusts enforcement tightly in the hands of specialized national regulators. New actors in the supply chain, such as fulfilment service providers or e-commerce platforms, have fallen between the cracks. This article argues that extending the principles of the New Approach to e-commerce marketplaces, by seeing their activities as affecting essential requirements, could be of interest to both the problems at hand and the wider debate on online platforms regulation.