7.6.3 相互支援、行政協力及びEU製品適合ネットワーク

Technical harmonisation has created a single market, where products move across national borders, while market surveillance is carried out on a national basis. This requires smooth cooperation to ensure uniform and efficient enforcement of Union legislation in all Member States. The obligation to cooperate is in line with Article 20 of the Treaty on European Union (TEU) which states that Member States must take all appropriate measures to fulfil their obligations. Detailed provisions on cooperation are included in Regulation (EU) 2019/1020, in particular on bilateral mutual assistance, multilateral sectorial administrative cooperation and by the establishment of an EU Product Compliance Network that facilitates EU-wide cross-sectorial cooperation, to address common challenges and to spread good surveillance practice and techniques across the Union.

Administrative cooperation calls for mutual trust and transparency between national surveillance authorities. Member States and the Commission need to be informed about the national authorities in charge of market surveillance for the different product sectors and about the compliance checks they carry out. Such information is shared through the Information and Communication System for Market Surveillance (ICSMS) (308).

Information exchanged between national surveillance authorities has to be treated according to the principles of confidentiality and of professional and commercial secrecy. Further, personal data shall be protected in accordance with EU and national law. Where a Member State has rules permitting free access by persons to information held by surveillance authorities, this fact must be revealed at the time of the request to another surveillance authority, or during the exchange of information if no such request occurs. If the sending authority indicates that the information involves matters of professional or commercial confidentiality, the receiving authority should ensure that this can be provided for. Otherwise the sending authority is entitled to withhold the information.

Cross-border mutual assistance helps completing investigation and enforcement actions in cases where an economic operator located in another Member State than the investigating authority does not cooperate. Articles 22 to 24 of Regulation (EU) 2019/1020 specify how such mutual assistance is requested and how it has to be followed up on. A distinction is made between request for information and requests for enforcement measures. All requests for assistance are made through ICSMS.

Requests for information concern cases where an investigation into whether a product is compliant or not was started, and where the market surveillance authority needs compliance documentation from an economic operator for this investigation. The market surveillance authority in question should first itself request the documentation from the economic operator in the other Member State. Only when that economic operator does not provide the requested documentation, can a request for mutual assistance be made to an authority in that Member State (the ‘requested authority’). The authority that initiated the investigation (‘the applicant authority’) remains responsible for that investigation, unless otherwise agreed between the authorities. The applicant authority should clearly specify what compliance documentation it needs and from which economic operator. The requested authority should without delay contact the economic operator to obtain the information, which should then be passed on to the applicant authority as soon as possible, and in any case within 30 calendar days.

Requests for enforcement measures are meant only for exceptional cases. When a market surveillance authority establishes a non-compliance, it should itself request the relevant economic operator to take corrective action and when that economic operator does not comply, the authority should take measures and inform other Member States so that they also take measures if the product is on their market (see Sections 7.6.1 and 7.6.2). Requests for enforcement measures by an authority in another Member State are meant only for cases where these procedures do not resolve a non-compliance. For example, in the case where an economic operator in the another Member State does not cooperate and keeps offering the product to end-users, but not in the Member State where it resides and thus the authorities of that Member States would normally not undertake action (as the product is not on their market).

Requests for enforcement measures should include a justification why the measures are necessary. The requested authority may decide on the most appropriate measures to end the non-compliance. This can include fines. The requested authority may make use of powers that require recourse to other public authorities or application to competent courts. Member States have to make sure that there are no national legal barriers that would prevent them from taking appropriate measures in order comply with Article 23 of Regulation (EU) 2019/1020. The requested authority should take action without delay and inform the applicant authority of the measures taken or intended to be taken.

Mutual assistance requests for information and for enforcement can be refused in certain circumstances, which are specified in Articles 22 and 23 of Regulation (EU) 2019/1020. A request for information can be refused if the applicant authority has not made it clear why the information is necessary. A request for enforcement measures can be refused if the applicant authority has not provided sufficient information to follow it up. A request for enforcement measures can also be refused if the requested authority disagrees that there is a non-compliance. Further, both types of requests can be refused if it overburdens the requested authority’s own activities. However, authorities should act in good faith and, as a general principle, accept requests for mutual assistance, in particular those concerning request for obtaining the EU declaration of conformity, declaration of performance and technical documentation. Refusals of request have to be justified. The Commission will monitor the operation of the mutual assistance mechanism and will identify areas where the refusals were not justified.

Cooperation between market surveillance authorities of the Member States regarding products covered by Union harmonisation legislation takes place in administrative cooperation groups (ADCOs) established for sectors of Union harmonisation legislation. Many of the groups cover one piece of Union harmonisation legislation and others cover a few closely related pieces of Union harmonisation legislation. Regulation (EU) 2019/1020 specifies their tasks in Article 32. They facilitate the uniform application of Union harmonisation legislation, e.g. by discussing and resolving divergent application of Union harmonisation legislation. They further carry out a range of other cooperation activities, including in many cases the planning and carrying out of joint actions. They also provide input to the cooperation in the EU Product Compliance Network (see next point).

Some groups use a different name than ADCO sometimes with their own legal basis in Union harmonisation legislation, with their tasks specified therein. They operated on the basis of that legislation, while also cooperating in the EU Product Compliance Network in the same way as ADCOs do.

Article 29 of Regulation (EU) 2019/1020 established the Union Product Compliance Network for cooperation on market surveillance across the EU and across the different product sectors. The Network is composed of representatives of the Member States, including in particular their single liaison offices, the chairs of the ADCOs and representatives of the Commission. The Network is a platform for structured coordination and cooperation on market surveillance, in particular priority setting and addressing horizontal cross-sectorial aspects of market surveillance. It works on the basis of a work programme, which can be regularly adapted in order to address new challenges in market surveillance. The Network closely cooperates with the Consumer Safety Network provided for by Article 10 of Directive 2001/95/EC on product safety related topics.