I wonder if ChatGPT would have spotted this

By Rutger Oldenhuis LLM

I almost missed my deadline for writing this blog. ChatGPT was overloaded already for days, so I really had to write myself. So, let’s continue where I ended my previous blog.
Being a big fan of my blogs, you know I made a comparison with the car industry, where one hardly ever sees a ‘Stop Ride’ recall, despite the often serious risks. You know that I have made a case for fewer ‘stop using your bicycle immediately’ recalls. You also know that this is not going to happen if we take the (provisional) text of the General Product Safety Regulation (GPSR) literally. In fact, dangerous bicycles and cars, being non-portable, will have to be collected from consumers. The text does not leave any room for proportionality. Was this really intended by the EU Commission? Fortunately, the EU Commission also reads my blogs. And guess what? My assessment of the GPSR turns out to be correct. However, that is only for bicycles, not for cars. Since there is already specific sectoral legislation for cars in place that also handles recalls, the GPSR would not apply to cars. The question is whether that is a correct assessment.
It is true that there is sectoral legislation in place for cars, namely Regulation (EU) 2018/858 on the approval and market surveillance of motor vehicles and their trailers. However, if you read what it says about recalls, it is very high level and limited to phrases such as “the manufacturer shall immediately take the corrective measures necessary to bring that vehicle […] into conformity, to withdraw it from the market or to recall it, as appropriate”. And in case of serious risk, the national market surveillance authority will “require without delay that the relevant economic operator take all appropriate corrective measures without delay to ensure that the vehicle […], when placed on the market […] no longer presents that risk”.
Chapter VIII of the GPSR, on the other hand, contains very detailed recall and remedy provisions. For example, a recall notice must include a ‘stop use immediately’ instruction. In addition, non-portable, dangerous products must be collected from consumers. It is remarkable that the GPSR (where ‘G’ stands for ‘General’) contains such detailed and specific provisions. Since the GPSR is a so-called horizontal regulation, any additional (or more specific) obligations under the GPSR regarding recalls would be applicable to the car industry, as well as other industries not excluded from its scope. The sectoral car legislation does not exempt motor vehicles from the requirements of the GPSR. Regulation (EU) 2018/858 does not replace or derogate from the requirements of the GPSR. It sets out additional requirements for the safety and performance of motor vehicles and their components, but does not relieve manufacturers of their obligations under the GPSR. Therefore, any additional or more specific obligations under the GPSR would still apply to the car industry alongside the requirements of the sectoral legislation.
It should also be noted that the application of Chapter VIII of the GPSR is not excluded for sectoral legislation, while many other chapters are expressly excluded.
I am still in discussion with the EU Commission. If their intention was to exclude sectoral legislation from the scope of Chapter VIII, they can still do so through a simple amendment. However, I do not see why dangerous cars are less dangerous than dangerous bicycles. No recall is the same, and it would therefore be better to, instead of exclude it, change Chapter VIII and leave more room for proportionality. To be continued. Cars aside, if the text of the GPSR remains unchanged, dangerous (cargo) bicycles and LEVs must be collected from consumers. I wonder if ChatGPT would have spotted that snag.