Is the General Product Safety Directive a maximal harmonization Directive ?

It is rather strange that the General Product Safety Directive contains noth-ing about mutual recognition, country of origin control or maximal harmo-nization. There is certainly no express minimal or maximal harmonization

6 Art. 95(3).

7 Art. 2(a).

8 Art. 2(c) General Product Safety Regulations 2005 SI 2005/1803. See Duncan Fairgrieve and Geraint Howells, “General Product Safety – a Revolution Through Reform ?” (2006) 69 Modern Law Review 59.

Geraint Howells

clause. It is regrettable when Directives do not address this issue on their face, no matter how sensitive the policy choices are. It is better to have the policy debated and made clear rather than kept under covers. There is also no clause which states that a product which complies with the rules should be allowed free access to the entire internal market (mutual recognition) or that products only have to comply with the standards of their home state (country of origin). As was mentioned earlier, the exclusion of such provisions from the Directive, and even for the most part from the debates surrounding its implementation, is rather strange given that such matters are usually fre-quently and fiercely debated when European legislation is being adopted.

Moreover, the European Court of Justice has argued that a clause ensuring products complying with the European rules can circulate freely in the inter-nal market is an importance test of whether the measure is truly justified as a measure promoting the internal market under Art. 95.⁹ The whole thrust of the Directive’s drafting is simply to impose a common level of obligations across Europe. It requires careful textual analysis to determine whether the Directive leaves the Member States any freedom to provide for greater pro-tection. In making this assessment there do not appear to be any rules of interpretation favouring maximal or minimal harmonization ; although it is certainly the case that politically (and this included within the politics of the Court) maximal harmonization, or at least mutual recognition of products complying with common European rules, will tend to be viewed favourably.

In analysing the possible maximal harmonization character of the Direc-tive three distinct aspects of the DirecDirec-tive can be distinguished : (i) the defini-tion of safety ; (ii) the obligadefini-tions of the producers and distributors ; and (iii) the powers of the Member States.

The definition of “safe product” in Art. 2(b)¹⁰could be intended as a maxi-mal standard, notwithstanding that Art. 3 seems to allow for national varia-tions. Art. 3(2) deems a product to be safe if “it conforms to the specific rules of national law of the Member State in whose territory the product is marketed, such rules being drawn up in conformity with the Treaty, and in particu-lar Art. 28 and 30 thereof, and laying down the health and safety require-ments which the product must satisfy in order to be marketed.” Thus the principle of different national rules is accepted, but in the context of deeming a product to be safe rather than with respect to increasing the standard of

9 Germany v European Parliament and another supported by France and other interveners C-376/98[2000] ECR I-8419 and R v Secretary of State for Health and others, ex parte Imperial Tobacco Ltd. and others C-74/99 [2000] ECR I-8599.

10 “‘[S]afe product’ shall mean any product which, under normal or reasonably foreseeable condi-tions of use including duration and, where applicable, putting into service, installation and maintenance requirements, does not present any risk or only the minimum risks compatible with the product’s use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons …”

Is the General Product Safety Directive a Maximal Harmonization Directive ? what amounts to a safe product. In effect the national rules provide a safe harbour for producers. They could in fact provide a means for Member States to lower the standard expected. A product which might otherwise have failed to comply with the general safety definition might have to be deemed safe because it complies with these national rules. As these national rules are those laying down health and safety requirements it is to be hoped that this will not be the case, but it is possible to imagine problematic situations might arise. Nevertheless, the resulting risk is mitigated as, notwithstanding compliance with such criteria, competent authorities of the Member States are not to be barred from taking appropriate measures to impose restrictions on the product being placed on the market, or to require its withdrawal from the market or recall where there is evidence that despite such conformity it is dangerous. So conformity might be a shelter from some sanctions, such as criminal prosecution, but does not prevent the authorities from taking con-sumer protection measures. This safeguard clause is an important reason why it is possible to be relaxed about any possible maximal harmonization character of the General Product Safety Directive.

Art. 5 sets down the obligations of producers and distributors. These are quite extensive, but one could easily imagine how Member States’ laws could be more demanding, especially as regards distributors whose obligation is phrased in terms of due care. There is no obvious indication as to whether higher obligations would be allowed.

Chapter IV sets down the obligations and powers of the Member States.

Member States certainly have a degree of flexibility, as it is provided that it is they who shall define the tasks, powers, organization and cooperation ar-rangements of the competent authorities.¹¹Art. 8 goes on to list the measures that Member States shall be entitled to take. It is not made clear whether this is an exhaustive list of the powers available. However, the fact that Art. 13 provides the Commission with power in specific situations to intervene and require that a measure from Art. 8(1)(b) to (f) be adopted suggests that these are seen as the menu of remedial measures from which the regulators must select. Indeed now the list has been expanded one can be relatively sanguine about its being exhaustive. However, given that the first General Product Safety Directive has now come to be interpreted as not having included a power to recall goods that had reached the consumer, it is easy to see how po-litically sensitive it would have been to treat the first Directive as a maximal harmonization Directive. That would have meant that Member States with such a power of recall would have had to have repealed it. One important lesson from this example is that if a Directive is to be treated as a maximal harmonization this should only be after it has been tested and improved to

11 Art. 6(3).

Geraint Howells

provide a high level of protection, so that Member States are not frustrated at having to give up legitimate rights and powers. Even then there should be a safeguard clause.

In truth there is very little on the face of the Directive to help one decide whether or not it is a maximal harmonization Directive. One can easily gain the impression, from how it is drafted and the general context, that it was in-tended to be the only regime that applied, but some details might be used to argue against that. We therefore must turn our attention to the policy issue of whether maximal harmonization is needed. Often interpretation of ambigu-ous legislation can be influenced by policy considerations.