New Approach Meets New Economy: Enforcing EU Product Safety in E-Commerce

Abstract

This paper reviews recent regulatory initiatives in the area of product safety legislation and the market surveillance of products from the angle of e-commerce. 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 which is fragmented, highly technical and slow to respond to the dynamic changes introduced to the market place. The EU Commission’s 2017 Notice on the surveillance of products sold online and its latest proposal for a new regulation on enforcement of 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 industry and entrusts enforcement tightly in the hands of specialized national regulators. New actors in the supply chain, such as fulfillment service provider or e-commerce platforms have fallen between the cracks. This paper argues that extending principles of the New Approach onto e-commerce players, 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.