IEEE Consumer Electronics Magazine - October 2015 - 126

FIGURE 1. The CE marking.

The revised directives will-inter
alia-be more precise in regard to the
specific obligations of producers,
importers, and dealers. The revision has
to be taken into account in any case for
the EU Declaration of Conformity.

PRESUMPTION OF CONFORMITY-
WHAT DOES IT MEAN?
According to the European CE Directives, European market surveillance
authorities have to presume a product
carrying the CE marking complies with
the provisions of the directive. Nevertheless, the market surveillance authorities can find facts that give an indication
for noncompliance. Let us say the TV
mentioned above carries a CE marking.
The EU Declaration of Conformity
states that it complies with the EU Low
Voltage Directive and the EU Electromagnetic Compatibility Directive. A
European market surveillance authority
might still buy some of the appliances
and run tests on them (i.e., electrotechnical tests from the applicable European
harmonised standards). If the product
does not pass these tests, the market
surveillance authority has a starting
point for proving that the product does
not comply with the relevant requirements under EU law. A reason for various test results achieved by the producer
and the market surveillance authority
might be slight differences in the set-up
of the testing environment or the like.
126 IEEE ConsumEr ElECtronICs magazInE

Those cases need very careful legaltechnical assessment and argumentation
to refute a possible complaint of the
market surveillance authority. The presumption of conformity might, in any
event, be overruled by a legal-technical
evaluation of the product. The market
surveillance authority may then-inter
alia-ban a product from the European
market even though it carries the CE
marking. The CE marking does not,
therefore, render a product inviolable
but gives a product the right of free
movement as long as there is no proof
of nonconformity.

CONSEQUENCES OF "WRONG"
CE MARKING
The CE marking has to be placed on
products that fall under a CE Directive.
On the other hand, the CE marking
must not be placed on products that do
not fall under a CE Directive.
"Wrong" CE marking can have several consequences for the producer.
Even though CE Directives are European legislation, the specific consequence
must be assessed under the national law
of every country of distribution as it is
codified in national administrative or
civil law.
Going back to our TV example: the
EU Low Voltage Directive obliges member states merely to take appropriate
measures if the CE marking is affixed to
a product without legal justification. It

october 2015

does not, therefore, prescribe the specific consequence if the TV does not
carry the CE marking. It is the EU
member states that take the appropriate
measures by means of national legislation. There might be different opinions
among the EU member states legislators on what would be an appropriate
measure as well as on the scale of
actions to be sanctioned.
According to the German implementing law [Produktsicherheitsgesetz
(ProdSG)], affixing the CE marking
without a legal basis is an offence liable to the same penalty as not affixing
the CE marking, even though a CE
Directive prescribes it. In both cases of
"wrong" CE marking, the market surveillance authority may impose a fine
of up to €10,000. Additionally, a product with a wrong CE marking does not
comply with the provisions of the
ProdSG and may, therefore, be subject
to measures ordered by a market surveillance authority. Those measures
include, for example, the banning of
the products until they comply with the
provisions on the CE marking.

CE MARKING AND
COMPETITION LAW
Every producer placing its products on
the European market should also have
in mind that CE marking might also be
relevant under competition law, especially the law against unfair competition which is, again, national law of
every EU Member State. Under German law against unfair competition,
advertising with a CE-marked product
as "CE tested" was held not to be permitted by the Higher Regional Court
Frankfurt [Oberlandesgericht (OLG)].
The OLG Frankfurt decided that the
advertising was misleading in the
meaning of Section 5 of the Act against
Unfair Competition. By the addition of
"tested," the manufacturer gave rise
vis-à-vis a consumer not familiar with
the principles of product law to the
(false) impression that an independent
body had tested the product. This is
precisely not expressed by the attachment of a CE marking.
(continued on page 137)

Table of Contents for the Digital Edition of IEEE Consumer Electronics Magazine - October 2015