2.4 遠隔販売及びオンライン販売の場合の市場での提供及び上市

Products offered for sale online or through other means of distance sales are deemed to be made available on the Union market if the offer is targeted at end users in the Union (58). This means that market surveillance authorities are empowered to check and take the necessary actions in relation to such products in accordance with Regulation (EU) 2019/1020 (see chapter 7 below). An offer for sale is considered to be targeted at end users in the Union if the relevant economic operator directs, by any means, its activities to a Member State. The assessment of whether or not a website located inside or outside the EU targets EU end-users has to be carried out on a case-by-case basis, taking into account any relevant factors such as the geographical areas to which dispatch is possible, the languages available used for the offer or for ordering, payment possibilities, etc. The mere fact that the economic operators’ or the intermediaries’ website is accessible in the Member State in which the end user is established or domiciled is insufficient (59). When an online interface provides for delivery in the EU, accepts payment by EU consumers/end-users and uses EU languages, then it can be considered that the operator has expressly chosen to supply products to EU consumers or other end-users. The physical delivery to end-users in the EU of a product ordered from a given online seller based outside the EU, including by a fulfilment service provider, gives irrefutable confirmation that a product is placed on the EU market.

The legal consequence is that, if the offer is targeted at end users in the Union, products offered for sale online or through other means of distance sales need to comply with all applicable EU rules and can be subject to checks by market surveillance authorities pursuant to Regulation (EU) 2019/1020. The economic operator offering the product for sale online or through other means of distance sales is required to cooperate with the market surveillance authorities upon their request for compliance information or for other actions (60). If products are sold online, it is useful that the CE marking and any required warnings according to applicable legislation are indicated in that website and visible before the end user is carrying out the purchase.

Online or distance selling may be a specific manner of making products available but it does not necessarily constitute the first making available of the product on the Union market (i.e. the placing on the market). The actual placing on the market of these products may differ for each individual product, depending on the specific distribution chain, for example:

—The distance sale or online offer may refer to products that have already been placed on the Union market. This is the case where the EU manufacturer or an importer has already placed them on the Union market before they were offered for sale online or through other means of distance selling.

—Some products offered online or through other means of distance selling to end users in the Union are transferred first to fulfilment service providers located in the EU to guarantee their swift delivery to EU end users. Accordingly, products stored by such fulfilment service providers and released for free circulation are considered to have been supplied for distribution, consumption or use on the EU market and thus placed on the EU market. When an online operator uses a fulfilment service provider in this manner, by shipping the products to the fulfilment house in the EU, the products are in the distribution phase of the supply chain (61). These products are considered placed on the market at the time they are released for free circulation.

—Some products outside the EU can be bought directly by end-users in the EU online or through other means of distance sales. Although these products are deemed to be made available in the Union prior to any transaction for the purposes of checks by market surveillance authorities pursuant to Regulation (EU) 2019/1020, they are placed on the market at the moment an order by an end user has been placed and confirmed for a specific product already manufactured and subject of the transaction, and ready to be shipped.