IEEE Consumer Electronics Magazine - May 2018 - 103

product compliance on the European
market if the manufacturer is not based
in the EU. Under the New Legislative
Framework, the authorized representa-
tive is any natural or legal person estab-
lished in the EU who has received a
written mandate from the manufacturer
to act on its behalf in relation to specified
tasks. The U.S. manufacturer therefore
has full control of the entities in the dis-
tribution chain provided with such
power. In comparison, the importer does
not need a written mandate but is defined
as a natural or legal person established in
the EU who places a product from a
third country on the EU market. The
concept of placing a product on the mar-
ket means the first offer for distribution,
consumption, or use on the EU market.
An online shop might be covered by
such a definition, whereas a fulfillment
center most likely is not covered. As the
fulfillment center carries out mainly par-
cel services, it does not offer the product
on the market. Rather, the offer is placed
by an online shop.

THE DISTRIBUTOR
Harmonization legislation under the
New Legislative Framework implies
specific obligations on the distributor.
These are not as comprehensive as the
manufacturer's obligations. The main
tasks of the distributor are the following:
▼ verification of CE marking, neces-
sary information accompanying the
product (e.g., safety instruction, EU
Declaration of Conformity), label-
ing (e.g., language and traceabili-
ty requirements)
▼ cooperation with market surveillance
authorities, including the initiation
of corrective measures if necessary.
The EC explicitly states in its notice
that fulfillment centers are to be seen as
distributors if their activities go beyond
those of parcel service providers that pro-
vide clearance services, sorting, transport,
and delivery of parcels, provided that
they are not to be classified as manufac-
turers, importers, or authorized represen-
tatives with even more responsibilities.

It is to be expected that
the national market
surveillance authorities
will follow the guidance
on interpretation and
accordingly enhance
sample checks and requests
at online stores and
fulfillment centers.
According to a study carried out by
the EC [2], it was found that some online
shops and fulfillment centers were not fit
or not prepared to comply with their
obligations under European product law.
To avoid unnecessary escalation in the
course of market surveillance investiga-
tions that could result in sale-restrictive
measures, manufacturers based outside
of the EU should make sure their distri-
bution chain is organized and trained to
comply with the obligations under Euro-
pean product law and at the same time
are not overacting.

CONCLUSION
In the case of direct online sale from
manufacturers based outside of the EU,
there have been some open questions
regarding the application of European
product law. Difficulties mainly arose
with regard to the concept of placing a
product on the market and with regard
to determination of a responsible eco-
nomic operator within the EU. Market
surveillance authorities across Europe
have had different opinions and ap -
proaches on these questions in the past.
With its Notice 2017/C 250/01, the EC
gave some clarification. It explicitly
stated that a fulfillment center might be
a distributor in the sense of harmoniza-
tion legislation under the New Legisla-
tive Framework if it offers more than
mere parcel services. The EC addi-
tionally set out strategies for online
investigation carried out by market
surveillance authorities, including

enhanced cooperation between the EU
member states.
Even though the EC's notice is not
legally binding, it is to be expected
that the national market surveillance
authorities will follow the guidance on
interpretation and accordingly enhance
sample checks and requests at online
stores and fulfillment centers. Market
surveillance authorities might also
order sale-restrictive measure against
these economic operators. Hence, U.S.
manufacturers should review their dis-
tribution chain and make sure that the
economic operators based in the EU
are prepared and trained for such a
case, especially if products are sold
online directly to consumers in the EU,
and a fulfillment center might be the
only responsible economic operator
within the EU.

ABOUT THE AUTHOR
Susanne Wende (Susanne.Wende@
noerr.com) is an attorney in the product
compliance team of Noerr LLP in
Munich, who specializes in European
and German product safety law and
product liability law. She advises clients
from several industries on product com-
pliance issues and regularly speaks on
various aspects of product safety and
product compliance law at seminars and
conferences. She lectures product liabil-
ity law at the Technical University in
Berlin, Germany.

REFERENCES
[1] European Commission. (2017). Commission
notice on the market surveillance of products
sold online (2017/C 250/01). [Online]. Avail-
able: http://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=uriserv:OJ.C_.2017.250.01.0001.01.
ENG&toc=OJ:C:2017:250:TOC
[2] Panteia/Centre for Strategy & Evaluation
Services. (2014). Good practice in market
surveillance activities related to non-food
consumer products sold online. [Online].
Available: http://ec.europa.eu/DocsRoom/
documents/8723/attachments/1/translations/
en/renditions/native

may 2018

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Table of Contents for the Digital Edition of IEEE Consumer Electronics Magazine - May 2018
