7.5.3 適用される手続

When a product imported from a third country has been selected for control and the border authorities have reasons to believe that it is non-compliant – for instance in relation to the essential requirements or the required accompanying documentation, marking, labelling or other information – or that it presents a serious risk, they have to suspend the release for free circulation and notify the relevant market surveillance authority thereof (Article 26(1) and (2) of Regulation (EU) 2019/1020). The border authorities should share this information in an agreed form, providing the market surveillance authority with the necessary information to assess the compliance of the product. Regulation (EU) 2019/1020 has tasked the Commission to develop an IT solution linking existing national customs systems and ICSMS, which should ultimately facilitate the communication and handling of such cases.

Market surveillance authorities must also, at their own initiative, ask border authorities to suspend the release for free circulation if they have reasonable grounds to believe that a product arriving at customs is non-compliant or presents a serious risk (Article 26(3) of Regulation (EU) 2019/1020).

Market surveillance authorities have four working days to react to the notification of a suspension. If they do not react within this timeframe, border authorities will have to release the product for free circulation, provided that other requirements and formalities related to such release have been fulfilled (Article 27 of Regulation (EU) 2019/1020). This does not mean that the entire procedure from the suspension until the decision on release for free circulation should be completed within four working days. It should be handled without delay to avoid creating barriers for legitimate trade, but the suspension of release can be maintained for the time required by the market surveillance authority to carry out appropriate verifications on the products and allow them to take the final decision on compliance. Market surveillance authorities should ensure that the free movement of products is not restricted to any extent greater than necessary or allowed under any relevant EU legislation. To that end, market surveillance authorities should perform their activities regarding products originating from third countries - including the interaction with the relevant economic operators - with the same methodologies and celerity as for products originating from the EU.

If the market surveillance authority is unable to make a final decision on compliance within the four working days, it should notify the border authorities within this timeframe that its final decision on the product is pending and request to maintain the suspension of release for free circulation. In this event, the release for free circulation remains suspended until the market surveillance authority has made a final decision. The products will remain under customs supervision even if they are allowed to be stored at another place approved by customs.

When market surveillance authorities inform the border authorities that they consider that product can be released for free circulation, border authorities must proceed to do so, provided that other requirements and formalities related to such release have been fulfilled (Article 27 of Regulation (EU) 2019/1020). If any further corrective measures are deemed necessary, the market surveillance authority should follow up on this.

When market surveillance authorities find that the product is not compliant or presents a serious risk, they have to require the border authorities not to release the product for free circulation (Article 28(1) and (2) of Regulation (EU) 2019/1020). They must indicate whether this is because the product presents a serious risk or whether it is otherwise non-compliant with EU law. Border authorities have to enter this information in the customs data-processing system and, where appropriate, on physical documentation accompanying the product such as an invoice, as follows:

—‘Dangerous product – release for free circulation not authorised – Regulation (EU) 2019/1020’; or

—‘Product not in conformity – release for free circulation not authorised – Regulation (EU) 2019/1020’.

Market surveillance authorities are required to enter the case in ICSMS, including the information that the case originates from border controls and the nature of the non-compliance (serious risk or other non-conformity). If the case highlighted a serious risk, they must also introduce the appropriate notification in RAPEX (Article 20 of Regulation (EU) 2019/1020). Market surveillance authorities should further take measures to prohibit the placing on the market of the product to prevent other shipments of the product from entering the EU market.

Border authorities may decide to destroy the non-compliant products at the cost of the declarant where they present a risk to health and safety of end users (Article 28(4) of Regulation (EU) 2019/1020). Depending on the organisational structure, they may do so at the request of the market surveillance authorities.

Border authorities may also allow the product to be placed into a customs procedure other than release for free circulation, if the market surveillance authorities do not object to this. In such case, the above-mentioned notice ‘Dangerous product… etc. ’ or ‘Product not in conformity… etc. ’ must be included in the documents used in connection with that procedure (Article 28(3) of Regulation (EU) 2019/1020). The border authorities may allow actions to ensure that the product will be modified, under relevant customs procedures and in an appropriate manner, thus enabling its further release for free circulation.

In some cases, the place where the product is declared for free circulation may be different from the point of entry of the product. This does not preclude the competent authorities from carrying out appropriate controls at the point of entry. If they do so, they should provide the customs authorities at the place of declaration with adequate information on their controls and findings.

Compliance with EU product rules does not apply to non-EU products that are not declared for free circulation, such as those in transit and placed in free zones and free warehouses. Information can however become available that these products do not comply with the relevant EU rules or present a serious risk. Such information should be communicated to the relevant authorities to avoid that such products could be placed on the EU market at a later stage.