Fuuuuuut!!!

By Rutger Oldenhuis

As I wrote in one of my earlier blogs, the upcoming General Product Safety Regulation (GPSR) is food for many more blogs to come. It contains many provisions that go far beyond the current EU General Product Safety Directive (GPSD). In this blog, I would like to draw attention to a new obligation that is introduced in the GPSR: accident reporting. Consumers normally already have a channel to report potentially unsafe products to their national market surveillance authority. However, pursuant to the GPSR, manufacturers must promptly report product-related accidents via the Safety Business Gateway to the competent authorities in the Member State where the accident occurred. The notification should include the product’s type, identification number, and accident details. Additionally, manufacturers must provide any other relevant information upon request.

A legitimate question is: must all accidents, even those without any personal injuries, be reported? The text of the GPSR is somewhat vague but seems to suggest that the reporting obligation pertains only to incidents resulting in death or serious adverse effects on health and safety, whether permanent or temporary, including injuries, bodily harm, illnesses, and chronic health effects. The expected guidance from the Commission may clarify whether indeed this is the correct interpretation.

Manufacturers (or, if not based in the EU, the appropriate responsible economic operator in the EU) must provide accessible communication channels, such as a telephone number, electronic address, or a dedicated section of their website, to enable consumers to submit complaints and report any accidents or safety issues with a product. Manufacturers are then, in fact, expected to blow the whistle if reports of accidents indicate a reason to do so.

Parallel to the reporting obligation of manufacturers, other economic operators also have an obligation to follow up on accident reports. Importers and distributors must promptly inform the manufacturer if they become aware of an accident caused by a product they have placed on the market. The manufacturer must then notify the relevant authorities or instruct the importer or distributor to do so. If the manufacturer is not established in the EU, the appropriate responsible economic operator based in the EU must notify the relevant authorities.

Additionally, providers of online platforms must cooperate in reporting accidents by promptly notifying the Safety Business Gateway of any incident reported to them that results in a serious risk or actual harm to consumer health or safety caused by a product on their marketplace. They must also inform the manufacturer of such accidents.

And if that isn’t all, pursuant to the EU Whistleblower Directive, employees are encouraged to notify the relevant authorities of breaches of EU law, among others in the field of product safety and compliance. The Whistleblower Directive applies to legal entities in the private sector with 50 or more workers.

The implications of this should not be underestimated. Although reports of accidents may not automatically lead to an obligation to carry out corrective actions (like a recall), receiving multiple reports of accidents involving the same product will obviously trigger authorities to investigate the issue. And now, I’m trying to think of a witty way to end this blog, but nothing comes to mind. So, let me end with a loud fuuuuuut!!!