GPSR Trilogue: Four Points EU Negotiators Must Get Right

Today, 15 September, EU negotiators are kicking off the final negotiations on the General Product Safety Regulation (GPSR). This proposal for new product safety rules seeks to introduce specific obligations for thousands of online marketplaces. Looking at Europe’s thriving e-commerce sector, there is an incredibly diverse range of marketplaces operating online across the EU, testifying to the dynamism of this industry. If done right, the new rules can be an opportunity to improve consumer safety while enabling e-commerce to further grow in Europe. To make that happen, here are four important points negotiators need to get right.

Remove any stay-down obligation

Policymakers have added a new provision to the Commission’s initial proposal that would enable authorities to ask marketplaces to remove all products that were previously flagged as unsafe if the uploaded content is identical and it doesn’t require additional verification. However, this so-called “stay-down” obligation contradicts the ban on general monitoring recently reaffirmed by the Digital Services Act (DSA) and existing case law. 

First of all, the definition of an “identical product” is lacking – does it refer to identical in appearance, functionalities, URL listing, or trader? Secondly, automated tools can help detect unsafe products by proactively flagging what might have to be removed. This technology has certain limitations, however, especially for products since listings can vary greatly depending on the information provided by the trader (e.g. photos and product description). That is exactly why this proposed obligation for monitoring unsafe products is not aligned with EU case law. 

Concretely, such a stay-down obligation could result in European citizens being limited in what products they can buy and reputable traders facing undue prejudice.

Expand the timeline of notices

The amount of time a marketplace gets to respond to notices from users that flag potential safety-related issues is set to decrease from five to three working days under the new rules. Given that consumers obviously are not experts in product safety, user-generated notices are usually not that precise nor very reliable. They cannot be taken at face value and usually require further investigation. Indeed, practice shows that online marketplaces need more time to investigate notices than the three days currently on the table. Otherwise, it will not be possible for them to focus on removing unsafe products only, which would lead to the over removal of safe products – penalising legitimate traders and reducing consumer choice.

Enable efficient traceability of products

Marketplaces must remain to be seen as a facilitator of transactions between traders and consumers. Two modifications proposed by EU Member States on the traceability of traders go against that principle. Firstly, they have proposed a semantic change that would force online marketplaces to “require” product information from traders, instead of “enabling” them to provide it. Moreover, the second modification would mean that a picture of the product would be seen as a means to identify it. Both proposals are not in line with the DSA, they do not respect channel neutrality nor are they proportionate to achieving the goal.

Allow sufficient time for implementation

Online marketplaces will need at (the very) least 24 months to implement the GPSR, in line with the lead time provided by similar legislation such as the Market Surveillance Regulation. Lawmakers should also keep in mind that these specific obligations for online marketplaces are intertwined with those introduced by the DSA, which gives most companies a transition period of 15 months.

As negotiators seek to finalise the new EU product safety rules, let’s hope they address these four key issues with a view to ensuring that Europeans can continue to enjoy all the benefits of online shopping in the future.