The General Product Safety Directive came into force as part of the EU single market launch. It harmonised the requirements for producers (including manufacturers, their representatives and importers) and for distributors. Producers were required to ensure the safety of products, traceability to the producer and to be ready to deal a product recall. It required importers of products from outside the EU to represent their safety to the authorities unless an EU Authorised Representative was appointed.

CE marking directives supplemented the GPSD with specific requirements for certain groups of products. They replaced member state rules that had imposed technical barriers to trade and prevented a single market for those products.

The directives failed to refer clearly to the GPSD. Most manufacturers did not appreciate that the identification, traceability, product recall and representation requirements of the GPSD applied to CE marked products too.

The GPSD was updated with more detail on identification and traceability markings and product recall procedures. It remained unclear that this also applied to CE marked products.

The EU’s New Legislative Framework (NLF) came into force to correct the shortcomings of CE marking. Among other things, it copied and enhanced the GPSD’s identification, traceability, product recall and representation requirements into all subsequent CE legislation. This forms a chapter called ‘Obligations of Economic Operators’ with sections for manufacturers, authorised representatives, importers and distributors.

In particular anyone established in the EU who placed CE marked goods from a non-EU country (or third country) on the market was required to fulfil the ‘obligations of importers.’ These include:
1. ensuring the manufacturer has carried out appropriate conformity assessment procedure.
2. keeping a copy of declarations of conformity at the disposal of the authorities.

• 3. ensuring an adequate technical file in an EU language is available to the EU authorities
• 4. checking they and manufacturer have adequate traceability arrangements.
• 5. marking their name and full postal address on the product.

Anyone placing goods from the EU on the market was defined as a distributor. Their obligations were limited to checking end user information accompanying the product such as conformity marks and other markings, instructions and declarations of conformity in the correct languages and cooperating with the authorities if there is a product safety incident.

The EU and GB markets for goods separated. GB manufacturers were no longer established in the EU single market, and EU manufacturers were not established in the GB market. The UK became a third country of the EU and EU member states became third countries of the UK.

Amended UK legislation came into force. It remained as similar as possible to the EU legislation but replaced all references to the EU, its territory, citizens, laws, institutions, languages, taxes, and other arrangements with a reference to the corresponding UK thing. These amendments only extended to Great Britain. Northern Ireland legislation was amended to keep it in the EU single market to avoid customs checks at the Irish land border.

In particular, the GB ‘obligations of importers’ for anyone established in GB who places goods from outside GB on the market now read:

• 1. ensuring the manufacturer has carried out appropriate conformity assessment procedure.
• 2. keeping a copy of declarations of conformity at the disposal of the authorities.
• 3. ensuring an adequate technical file in English is available to the UK authorities
• 4. checking they and manufacturer have adequate traceability arrangements.
• 5. marking their name and full UK postal address on the product.

Anyone in GB or the EU placing goods from the other side of The Channel on the market changed from being a distributor to an importer of goods from a third country and now must fulfil the ‘obligations of importers’. The extra obligations are:

• ensuring an adequate technical file is available to the authorities
• keeping a copy of declarations of conformity at the disposal of the authorities.
• checking the manufacturer has adequate traceability arrangements.
• marking their name and full postal address on the product.

NLF only required the ‘obligations of importers’ to be fulfilled if an economic operator established in the EU placed a product on the market. The obligations did not apply to products sold directly to EU consumers without an economic operator in the EU, such as non-EU websites. This made it difficult for EU market surveillance authorities to deal with safety concerns.

EU Regulation 2019/1020 on Market Surveillance and Product safety came into force requiring every CE-marked product placed on the EU market to have an EU Economic Operator, also known as a responsible person. This did not come into force in GB as it happened after GB left the single market.

The responsible person had to fulfil the ‘obligations of importers’ and could be one of four types of economic operator:

• 1. the manufacturer if they were in the EU,
• 2. the importer,
• 3. an authorised representative
• 4. a fulfilment service provider

This posed a problem for manufacturers and distributors for several reasons:

• it was impractical to share the necessary technical documentation if there were many distributors.
• Manufacturers did not wish to pass on confidential technical information to their distributors, who were related to their competitors.
• Many distributors were unwilling or unable to take on the additional obligations.