New Approach meets new economy: Enforcing EU product safety in e-commerce
| Author | Carsten Ullrich |
| Published date | 01 August 2019 |
| DOI | 10.1177/1023263X19855073 |
| Date | 01 August 2019 |
| Subject Matter | Articles |
Article
New Approach meets new
economy: Enforcing EU product
safety in e-commerce
Carsten Ullrich*
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.
Keywords
E-commerce, online platforms, new approach, risk regulation, consumer protection
1. Introduction
The debate over the responsibilities of online platforms in the fight against illegal content on the
internet has intensified over recent years. The European Union (EU) Commission confirmed in its
* MA, LLM, PhD Researcher in Law, Faculty of Law, Economics and Finance, University of Luxembourg and Doctoral
Training Unit on Enforcement in Multi-Level Regulatory Systems (DTU REMS)
Corresponding author:
Carsten Ullrich, Universit´
e du Luxembourg, 4, rue Alphonse Weicker, 2721 Luxembourg, Luxembourg.
E-mail: carsten.ullrich@uni.lu
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(4) 558–584
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/1023263X19855073
maastrichtjournal.sagepub.com
MJ
MJ
2017 Communication on tackling ille gal content onlin e (the Communicati on) that it is step-
ping up its efforts with legislative and non-legislative measures across various sectors and
types of content.
1
New regulatory initiatives on hate speech, terrorist content, copyright and
IP rights in general
2
have been seen at the EU and Member State level. These have been
discussed widely and controversially across academia, industry and civil society. Largely,
they try to assign more preventive ex-ante and more prescriptive ex-post content policing
obligations on information society service providers (ISPs). In contrast, recent initiatives by
the EU legislator
3
to step up enforcement of product regulation for goods sold over the
internet have received much less attention. The fight to combat the sale of unsafe food and
non-food products is part of the Commission’s broad initiative to impose enhanced respon-
sibilities on online platforms.
4
E-commerce continues to grow
5
and the sale of non-compliant
and/or unsafe products online has been identified as a growing problem
6
affecting consu-
mers.
7
It may negatively impact public health and safety and has frequently been linked to the
sales of counterfeits.
8
In the following section, the initiatives to step up the enforcement of illegal and non-compliant
products sold online will be reviewed in the wider context of the EU’s horizontal strategy to tackle
illegal content. This brief comparison shall highlight an imbalance and inconsistency in the
attention the EU dedicates to the different sectors subject to unlawful content. E-commerce in
physical goods poses specific legal challenges emanating from global supply chain transformations
and the nature of product regulation in the EU. It is therefore appropriate to give a brief overview of
the EU New Approach applied to product regulation in Section 3. This will be followed by an
analysis of the EU Commission’s proposal for a regulation on compliance and enforcement of
1. Communication from the European Commission, Tackling Illegal Content Online Towards an Enhanced Responsibility
of Online Platforms, COM(2017) 555 final, p. 12.
2. Directive (EU) 2018/1808 of the European Parliament and of the Council amending Directive 2010/13/EU on the
coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the
provision of audiovisual media services (Audiovisual Media Services Directive), [2018] OJ L 303; Directive 2019/790
of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, [2019] OJ L
130; European Commission, ‘Code of Conduct on Countering Illegal Hate Speech Online’, European Commission
(2016), http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf; European Commis-
sion Guidance on Certain Aspects of Directive 2004/48/EC of the European Parliament and of the Council on the
Enforcement of Intellectual Property Rights, COM(2017) 708 Final.
3. European Commission Notice on the Market Surveillance of Products Sold Online (2017/C 250/01)’.
4. Communication from the European Commission, Tackling Illegal Content Online Towards an Enhanced Responsibility
of Online Platforms, COM(2017) 555 final, p. 3.
5. Ecommerce Foundation, ‘European Ecommerce Report 2017’, Ecommerce Foundation (2018), www.e-commerce
foundation.org/reports. E-commerce sales will have grown to €603 bn in 2018, up 13.6%from 2016, and 340%since
2009.
6. OECD, ‘Online Product Safety’, OECD Digital Economy Papers (2016), http://www.oecd-ilibrary.org/science-and-
technology/online-product-safety_5jlnb5q93jlt-en.
7. European Commission, ‘Bringing E-Commerce Benefits to Consumers - Accompanying Document SEC2011_1640’,
European Commission (20 p. 40.
8. OECD, ‘Online Product Safety’, OECD Digital Economy Papers (2016), p. 15–16, 27–28; European Commission,
‘Summary of Responses to the Public Consultation on the Evaluation and Modernisation of the Legal Framework for
IPR Enforcement’, European Commission (2016), http://ec.europa.eu/DocsRoom/documents/18661, p. 10, 41; H.-G.
Koch, ‘Strategies against Counterfeiting of Drugs: A Comparative Criminal Law Study’, in C. Geiger (ed.), Criminal
enforcement of intellectual property: a handbook of contemporary research (Edward Elgar 2012), p. 353–355.
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