Selling goods in Germany as a Belarusian producer involves many legal requirements. One of these requirements to assure tradibility of the Belarus-made product is the correct marking and labeling of the product.
Belarusian companies will have to find the right EU directives for their goods independentlyi.e there is no assistance from official authorities or the like. But due to the extent of applicable licencesand rules, this can turn out to be quite difficult.Most of the companies are not able to find the license independently and hence need to acquire legal advice. Therefore, we wish to provide you with an overview of what you should bear in mind when marking a product in Germany.
1. What is the function of the CE marking on a product?
The CE mark can be seen on many products that can be purchased in the European Economic Area (EEA). "CE" is the abbreviation of "ConformitéEuropéene" (European Conformity). It is regulated in the EU law and a sign to declare that the product meets the high standards of public safety, health or environmental concern and thus can be sold freely in the EEA.
For consumers as well as for businesses the CE marking is an advantage. Consumers enjoy a certain level of safety by buying the products and businesses can be sure their products can be sold in the EEA without any restrictions or sanctions.
The CE mark is mandatory and must be affixed before a product is placed on the market. The product may not be traded in Europe without the CE marking.
Products with CE marking are not tested and approved by the authorities before they are placed on the market. The proof of conformity of the product with the applicable legal requirements is the sole responsibility of the manufacturer. The manufacturer shall affix the CE marking and draw up an declaration of conformity. Only products with an increased safety risk, such as pressure vessels, lifts and certain machine tools, are tested by notified bodies, i.e by private testing bodies supervised by the state.
2. Who has to affix the CE marking to products?
There is no legal obligation to the effect that only the manufacturer would be entitled and obliged to affix the CE marking. It is usually the manufacturer who is responsible for affixing the CE marking after the conformity procedure has been completed.Ifa manufacturer outside the EEA has not affixed the CE marking, the authorised representative established within the EEA must do so.
If neither the manufacturer nor his authorised representative has affixed the CE marking, at least the person who places the product on the market within the EU (e.g. the importer) is obliged. In addition to manufacturers, importers also play an important role. Theymust in any case have a basic knowledge of the relevant EU directives and are obliged to assist the national authorities in the event of difficulties.Also they have to verify that the manufacturer outside the EU has taken the necessary steps to allow the product to be placed on the EU market. The EU Declaration of Conformity and the technical documentation has also to be available upon request.
Even Distributors need confirmation from the manufacturer or the importer that the necessary measures have been taken and have to be able to procure the required documentation for national authorities.
If the importer or dealer places the product on the market under his own name, he is treated as a manufacturer and thus has to take over those manufacturer’s responsibilities.
3. Which products have to be marked?
The obligation to affix the CE marking applies to the products, which are covered by the relevant EU Directives providing for such markingandplaced on the market in the EEA for the first time.
All new products will be placed on the market for the first time, regardless of whether they have been manufactured in the Member States or in third countries. No new products are those which have been repaired (e.g. after the occurrence of a fault) without their original performance, use or design having been changed. Products placed on the market for the first time are also used products and second-hand products imported from third countries and substantially modified products which fall under the EU directives as new products.
Products which are already on the market in the EEA and used products imported from a third country and second-hand products which had been manufactured before the CE Directive applicable from time to time came into force are not placed on the market for the first time and therefore not subject to CE marking.
4. Which EU directives regulate the obligation to mark certain product groups?
There is no comprehensive list showing all of the CE requirements. The requirements depend on the kind of the product. The CE-mark is mandatory to put on non-food products for example: Textiles, Toys, Machinery, Medical devices, Lifts, Personal Protective Equipment, Cosmetics, Dangerous substances, Electrical and Electronic goods, Automotive, Wood packaging, Household appliances, Sunglasses, Electronic furniture.
5. How to get the CE-marking?
First, the manufacturer has to identify the applicable directives and harmonized standards. There are over 20 EU-directives that specify which products require CE marking. The manufacturer is responsible for identifying the directives that apply to his products.Because of the secrecy of finding the relevant directives, you should seek a professional address.
In a second step, the manufacturer must verify the product specific requirements. The manufacturer must ensure that his product complies with the essential requirements of the applicable EU Directives. Those describe in detail the requirements that a product must fulfil in order for the manufacturer to be able to affix the CE marking to his products.
Then he has to identify whether an independent conformity assessment by a notified body is necessary.
If a notified body does not have to be consulted for the conformity assessment procedure, the manufacturer must test the product and check its conformity by himself. It is the responsibility of the manufacturer to properly test the product and to check conformity with all obligations that the manufacturer has in relation to a product under the relevant EU-Directives. The procedure shall include a risk assessment.
If the product meets the requirements he is now allowed to draw up and must keep available the required technical documentation. Furthermore, the manufacturer issues andeclaration of conformity for the respective product, in which he declares that the product complies with the safety and health requirements of the EU or with the requirements of all relevant legal regulations.
As a final step, the manufacturer must affix the CE marking and draw up the Declaration of Conformity.
6. What are the consequences of incorrect implementations?
The notified bodies in Germany perform in cooperation with the European Commission as market surveillance authority to control if products bear the CE-marking. Consumers or competitors may contact national market surveillance authorities, if there is a suspicion of misuse of the CE-mark or the safety of the product is not guaranteed.
Consequences of misuse of CE-marking are penalties, which the Member States regulate themselves. The penalties range from custodial sentence to fines. The measures with regard to the product may include orders for a withdrawal and recall of products. If there is no safety risk of the product, the manufacturer can be granted to make good his previous failure and make sure that his product meets the applicable law from now on.
7. How does the CE-marking relate to other markings?
Other markings may be affixed to the product if they do not have the same meaning as the CE marking, cannot be confused with the CE marking, and do not affect the legibility and visibility of the CE marking.However, other markings may only be affixed if they contribute to improving consumer protection and do not fall under the harmonization legislation of the European Union.An example of a permitted marking is the GS marking. The GS marking is applied voluntarily by the manufacturer to his products for advertising purposes. In contrast to the CE marking,the GS Marking is not just a self-declaration process to be performed by the manufacturer, but a quality mark granted by anofficial authority.
As a conclusion, CE-marking is not a quality seal or quality mark, but a pure goods traffic sign. It is sometimes referred to as the “product passport to Europe”. If a product has been CE marked, it is assumed that it complies with the provisions of the applicable directives and is therefore open to the free movement of goods within the European market.The difficulty is to stay up-to-date with new EU-regulations and to interpret them correctly. As indicated above, the CE-Mark is the most important marking for producers. Hence, it’s indispensable for manufacturers, importers and distributors to consider comprehensively the marking of their products.
