12 nov '20
Under the new European Import Control Regulation (Regulation (EU) 2019/1020), logistics service providers are given a new role, that of the fulfilment service provider. Once this new regulation enters into force in the course of 2021, every logistics service provider that meets the definition of the fulfilment service provider may become responsible for the safety of products imported into the European Union from third countries.
In Europe, there is an extensive framework of regulations on how products must be safely designed, manufactured and labeled before they can be placed on the market. There are rules for personal protective equipment (such as mouth masks), for cosmetics, for building materials, medical devices, et cetera. For most product categories this is laid down in European regulations, directives and standards (whether or not harmonized). Products often have to be provided with a CE marking, which serve to notify the user and the supervising authorities (in the Netherlands, usually the Netherlands Food and Consumer Product Safety Authority (NVWA) or the Human Environment & Transport Inspectorate (IL&T)) that the product complies with the regulations. It is prohibited to place products on the market that do not comply with these requirements and violation of such a prohibition may result in administrative and/ or criminal enforcement.
The manufacturer is primarily responsible for placing a product on the market that is safe and which complies with the regulatory requirements. However, if a product is manufactured outside the European Union, the importer is the primarily responsible for product safety and compliance. In some cases, products manufactured outside the EU may not be placed on the European market if the manufacturer not established in the EU appoints at least one representative in the EU (this is the case, for example, in the new Medical Devices Regulation that will enter into force in May 2021), but this is not a requirement for most products.
The new European Import Control Regulation was introduced because the European Commission observed a number of circumstances and developments:
This information, coupled with the ever-increasing volumes of non-EU goods purchased directly from online platforms, has led to the adoption of this new regulation. The Import Control Regulation therefore tries to solve the problems identified above by:
The Import Control Regulation therefore introduces a new party that must guarantee the safety of imported products if no manufacturer or importer can be designated within the EU.
A fulfilment service provider is a logistics service provider that performs two of the following four activities with regard to the imported products (postal, parcel and other "freight forwarding services" are excluded):
These are activities that numerous logistics service providers (forwarders, storage companies, fulfillment centers) perform on a daily basis and with this new role - defined by Brussels - the logistics service provider is given a whole new range of tasks. These tasks include keeping technical information about a product available and, on request, making available to the authorities and, if necessary, carrying out recalls. The fulfilment service provider must also put its name on the product. But these tasks are not without obligation. The fulfilment service provider will have to perform these tasks accurately. If he fails to do so, administrative and criminal sanctions may be imposed. The logistics service provider is completely dependent on the information provided by its client (who is often also a logistics service provider). The costs of all these new tasks are for the account of the fulfilment service provider unless he can pass them on to his client. An additional problem is that the logistics service provider will not always know whether the manufacturer has an establishment in the EU and / or whether the products are bought by someone directly from a supplier not established in the EU (i.e. without an importer). That makes this new role extra risky. Incidentally, the new range of duties of the fulfillment service provider does not apply to all categories of products, but to a specific group of products that is listed in the regulation.
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