November 25 2010
In compliance with EU legislation, in France, manufacturers and distributors may place on the national market only those products which are safe for consumers.(1) The General Directorate for Competition Policy, Consumer Affairs and Fraud Control is the authority in charge of ensuring such safety in France. Each year the directorate general sends a report of its actions to the European Commission to show that it has applied EU legislation to protect French consumers.
This year has been characterised by the desire of both the EU and national authorities to ensure the safety of consumer products placed on the EU market through the appropriate controls. On January 26 2010 the European Commission published new guidelines for the management of the Rapid Alert System for Dangerous Consumer Products (RAPEX) and the notification procedure established under Article 11 of the EU General Product Safety Directive.(2) The guidelines require national authorities to intervene even further in the activities of manufacturers and distributors. Also in January 2010, the directorate general published its first National Orientation Rules(3) to structure its actions.
These two texts have implemented major changes for manufacturers and distributors which place consumer products on the French market. Since the beginning of 2010, the directorate general has increased its controls and no longer hesitates to question the relevance of the corrective measures implemented when safety issues arise and to report such issues to the commission through the RAPEX system.
Therefore, cooperation with the directorate general is now, more than ever, a key issue on which manufacturers and their distributors must focus. Knowing how the directorate general is organised is also of fundamental importance, given that different types of agent may now take actions.
The directorate general , created in 1907, has three main objectives. It must ensure:
In order to ensure consumer safety, the directorate general carries out both preventive and in-field verification actions.
Preventive actions consist of:
In-field verifications consist of:
To fulfil these objectives in the most effective manner, the directorate general focuses on:
The National Orientation Rules state that such controls should be reinforced in order for French consumers to have even more faith in the quality of the products that are offered to them:
"consumers' trust constitutes a major pillar of the economic support... Trust in the economy depends on confidence in a safer daily life. The security of products largely contributes to it."
Therefore, product safety has become one of the primary tools to be used by the French government to revive the national economy.
To ensure the increased controls mentioned above, the structure of the directorate general has been reorganised. Until recently, product safety was dealt with on two levels:
The Decree of November 10 2009,(4) which came into force on July 1 2010, reorganised this dual-level structure. The directorate general's central services and its supervisory role have been maintained. However, the organisation and the role of the local agencies, at both regional and departmental levels, have changed. Since July 1 2010 the regional and departmental directorates no longer exist. Instead, 23 regional agencies, known as the regional directorates for companies, competition policy, consumer affairs, labour and employment, have been created. All these agencies operate under the authority of their respective regional prefect. As the name indicates, the regional agencies are in charge of more than simply ensuring product safety in the French market. However, a specific unit dedicated to product safety exists within each regional agency. This unit will instruct the departmental level agencies and gather all the information needed to report to the directorate general.
A second decree, dated December 3 2009,(5) created 101 departmental directorates for the protection of the population, also called departmental directorates for social cohesion and protection of the population. These regional agencies are the result of a merger between the previous regional directorates and the Departmental Veterinary Services Agencies. They now carry out the work allocated by their respective regional agency. They mostly investigate in the field and are the new points of contact for manufacturers and distributors. They operate under the authority of the prefect of their respective department and are organised as follows:
Other regional and departmental units have been created to manage specific areas, such as the Competition Policy, Consumer Affairs, Fraud Control and Metrology Unit,(6) which deals with issues relating to:
However, the High Competition Authority is now responsible for the investigation of competition issues.
The new structure described above is designed to ensure that only highly specialised and trained agents are in charge of product safety issues. This should be a positive outcome for both consumers and manufacturers, as their contact with the authorities will bring more effective results. Having said that, although all levels will eventually have to follow the broad guidelines and objectives set down at national level, the new organisational structure should give local authorities more flexibility in order to improve the safety of the French market through decisions that will be adapted to the local environment in question. This is likely to lead to difficulties in terms of equality of treatment of manufacturers, according to the department or region where they are located.
On June 1 2010 the directorate general published its report relating to its activities in 2009. According to this report, in 2009 the directorate general:
Following these actions, the directorate general:
The report stated that, in relation to pure safety issues, in 2009 it focused its attention on:
"products for children (toys and childcare products), leisure products (lawn mowers, Christmas fairy lights), products used on a daily basis and eco-products."
It also carried out specific industry sector investigations into:
During the first quarter of 2010, the directorate general registered 27,127 complaints from consumers.
Since the reorganisation of the directorate general, manufacturers will have two points of contact:
Since January 2010, there have been various changes in the behaviour of the directorate general and its local agencies towards manufacturers and distributors.
First, the directorate general now reports safety issues to the European Commission through the RAPEX system more systematically. Until recently, France was known as one of the EU member states that reported to the commission only rarely. This appears to have changed, as the directorate general now reports without contacting the manufacturer first to discuss the safety issue.
Second, when a manufacturer informs the directorate general of a potential or low safety risk (ie, a risk which need not be notified or reported to the commission under the directive), the directorate general will insist that the manufacturer complete a business application reporting form, even though such form must be submitted only when the risk assessment reveals a reportable risk.(7) It is becoming increasingly difficult to convince the directorate general that such an application need not be completed, particularly as most of its agents argue that the application assists them in managing their cases better. Experience has shown that submitting the business application directly without contacting the directorate general beforehand through an informative letter makes it difficult to know which agent will be in charge of the case and will handle the corrective action plan and publicity, as well as the confidentiality of the data sent. Therefore, it is advisable to inform the directorate general first of a safety issue through a format chosen by the manufacturer and only then, once the case is allocated to a specific agent and only if the latter insists, use the business application.
Furthermore, although the directorate general is usually satisfied with the corrective measures suggested by manufacturers (provided that all distributors and end users are informed in an effective manner), it now requests regular updates in order to assess the effectiveness of such measures. Before 2010, the directorate general would usually ask for only one update, one month after having received the initial information. The directorate general is also more proactive when it is unsatisfied with the effectiveness of the implemented corrective actions. It frequently orders the publication of press releases in consumer association publications such as UFC Que Choisir or 60 millions de consommateurs.
Finally, the directorate general is no longer satisfied when it receives information with no corrective actions suggested. In the past, the directorate general would accept information about a potential risk without any suggested corrective action. This was a way for manufacturers to inform the directorate general at a preliminary stage in case injury occurred while further testing was being carried out. It is no longer advisable to take such a step, as there is a real risk that the directorate general will treat such information as a notification and require the manufacturer to implement corrective measures, even though no actual risk has been shown.
When recalling or replacing voluntarily products that are already on the market, the main issue for manufacturers is to ensure that such a recall or replacement is handled quickly and effectively, and that there is a minimum of additional publicity around the recall or replacement. As shown above, the directorate general is increasingly inclined to report to the European Commission or to order the publication of press releases, making such exercises even more difficult to handle.
Without going into the details of the commission's guidelines on the assessment of a safety risk, it is important to note that in France, as in the rest of the European Union, the manufacturer is supposed to inform the directorate general "immediately" should a safety risk come to its attention.(8) However, unlike the law of most member states, French law provides no specific penalty for breach of the obligation to notify the directorate general. However, if a consumer informs the directorate general of the existence of such a risk, the manufacturer will find it difficult to justify the absence of notification and may, if a consumer is injured, face criminal liability.
Attention should therefore be given to the way in which the notification or information sent to the authority is drafted. In particular, the directorate general will focus mainly on the following points:
Manufacturers should be ready to provide any information requested by the agent in charge of their case, and especially to provide evidence that all players that must be informed have been informed effectively. Manufacturers should also be ready to meet with the agent on several occasions on site, as agents prefer face-to-face meetings. Manufacturers should never refuse such meetings, as this would send the message that safety is not a priority, when it should be. Such meetings provide opportunities to inform the directorate general of how other national authorities are handling the same safety issue. Experience has shown that when other national authorities consider that a risk is low or under control and that the corrective measures implemented are effective, the directorate general tends to follow their lead.
For further information on this topic please contact Thomas Rouhette or Sylvie Gallage-Alwis at Hogan Lovells (Paris) LLP by telephone (+33 1 53 67 47 47), fax (+33 1 53 67 47 48) or email (email@example.com or firstname.lastname@example.org). The Hogan Lovells website can be accessed at www.hoganlovells.com.
(2) Commission Decision 2010/15/EU of December 16 2009 laying down guidelines for the management of the Community Rapid Information System 'RAPEX' established under Article 12 and the notification procedure established under Article 11 of the General Product Safety Directive (2001/95/EC).
(3) Directive Nationale d'Orientation for 2010, January 4 2010, www.economie.gouv.fr/directions_services/dgccrf/dgccrf/dno/dno_2010.pdf.
Camille Dropsy assisted in the preparation of this update.
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