Bureau Européen des Unions de Consommateurs

…1 Contact: Laurens Rutten – [email protected] BUREAU EUROPÉEN DES UNIONS DE CONSOMMATEURS AISBL | DER EUROPÄISCHE VERBRAUCHERVERBAND Rue d’Arlon 80, B-1040 Brussels • Tel. +32 (0)2 743 15 90 • www.twitter.com/beuc • www.beuc.eu EC register for interest representatives: identification number 9505781573-45 Co-funded by the European Union Ref: BEUC-X-2022-093 - 14/09/2022 CATCHING DANGEROUS AND NON-COMPLIANT PRODUCTS AT THE BORDER BEUC’s recommendations to reform EU customs policy The Consumer Voice in Europe Ref. Ares(2022)6376839 - 15/09/2022 1 Why it matters to consumers A significant part of household appliances, clothes, toys and food comes from outside of the EU. International e-commerce is causing these imports to grow rapidly. While consumers may think all imports are safe and comply with EU standards, the reality is more complicated.

…rapidly. While consumers may think all imports are safe and comply with EU standards, the reality is more complicated. Consumers have a fundamental right to safety. But BEUC members – national consumer groups – find a flow of non-compliant, dangerous, or low-quality products coming into the EU. Summary While international e-commerce can benefit consumer choice, it is also bringing dangerous and non-compliant products into the EU. BEUC agrees with efforts to help customs authorities better protect consumers, and suggests the following: • Ensure EU laws are robust so not all the workload falls on customs • Break internal silos: better cooperation within the EU • Break external silos: more cooperation with third countries • Increase authorities’ resources The context: customs and consumers Imports entering the EU should be safe and comply with EU legislation.

…resources The context: customs and consumers Imports entering the EU should be safe and comply with EU legislation. Consumer organisations’ research has shown this is a myth, with consumers at risk of dangerous products directly imported into their homes. Customs plays a role here as they supervise the entry of goods into the EU, but they face overwhelming challenges. Any visit to customs sites in airports or harbours gives an eye- opening view of the challenges faced by customs officials, the main one being international e-commerce. After a preliminary Commission reflection1, a group of experts2 now recommends to reform customs policy. They conclude “the Customs Union needs to be better prepared to address forthcoming challenges”.

…reform customs policy. They conclude “the Customs Union needs to be better prepared to address forthcoming challenges”. These include: a) a surge in small e-commerce parcels; b) an increased expectation on customs to check for compliance with non-fiscal risks; c) and a lack of common implementation and cooperation within and between EU Member States. What matters for the daily lives of consumers is that “the probability that small consignments will contain non-compliant or dangerous goods is very high. It is not only that checking each parcel is impossible; it is that even checking all those that are identified as presenting a risk is unmanageable.” 1 Foresight project “the future of customs in the EU 2040”: https://publications.jrc.ec.europa.eu/repository/handle/JRC121859 2 Called the ‘Wise Persons Group on Challenges Facing the Customs Union’.

Called the ‘Wise Persons Group on Challenges Facing the Customs Union’. 2 The evidence: dubious products flooding the European market In view of consumer organisations’ evidence from the ground the above conclusions are not surprising. While international e-commerce can benefit consumer choice, many dangerous and non-compliant goods are being sold online. In one test of 250 products bought from online marketplaces, two-thirds failed safety tests. This research is likely only a drop in the ocean, as consumer organisations only have the resources to do a small number of market checks. BEUC adds whatever is found to its living list of unsafe and illegal activities related to e-commerce. Many problematic products come from outside the EU3. To illustrate, UK consumer group Which? reported4 that when they found smoke alarms failing to detect smoke – all came from China.

UK consumer group Which? reported4 that when they found smoke alarms failing to detect smoke – all came from China. Consumentenbond from the Netherlands has warned about hackable security cameras “from China [that] continue to flood the Dutch market”. Denmark’s Forbrugerrådet Tænk found imports of cosmetic products to lack ingredients lists or to contain unwanted chemicals, as well as cheap jewellery containing illegal amounts of harmful heavy metals such as lead or cadmium. One bracelet exceeded the legal limit for cadmium – a known cancer-causing chemical – by almost 4000 times. These examples are backed up by EU-wide statistics compiled by the European Commission in its Safety Gate database. Valuable input has also come from industries (lighting, toys), and the French government’s consumer affairs and anti-fraud directorate (DGCCRF).

…from industries (lighting, toys), and the French government’s consumer affairs and anti-fraud directorate (DGCCRF). The solution: How to help customs authorities better protect consumers The European Commission now intends to follow up on the challenges highlighted by the wise persons report with a legal initiative to “deliver a true Customs Union acting as one”. BEUC supports the idea to help EU customs better protect consumers by catching dangerous and non-compliant at the bloc’s external border. This requires a rethink about the set-up of the system. 1. Ensure EU laws are robust so not all the workload falls on customs EU legislation needs to reflect today’s market reality. This requires all legislation relevant to imports to be kept updated. Online marketplaces are a source of non-compliant products, in particular from third countries.

…to be kept updated. Online marketplaces are a source of non-compliant products, in particular from third countries. Making online marketplaces liable for what is sold on their websites would spur them to be more proactive in tackling rogue traders. However, it is unhelpful that EU policymakers lack ambition to tackle the sale of dangerous products sold online via closing legal loopholes. At the time of writing this paper, BEUC sees the issue being passed like a hot potato between reforms of e- commerce, product safety, and product liability laws without any serious effort to solve it. This is a missed opportunity, because clarifying the legal status, responsibilities, and liabilities of marketplaces could at least put downward pressure on rates of non- compliance. 3 Beyond issues of non-compliance, it is worth noting there are also other issues related to global e-commerce.

…3 Beyond issues of non-compliance, it is worth noting there are also other issues related to global e-commerce. A 2020 survey by Verbraucherzentrale Bundesverband (vzbv) revealed issues such as non-delivery, low product quality, or problems with returns and refunds. This echoes an earlier BEUC-vzbv study from 2017. 4 At the time when these results were published, the United Kingdom was part of the European Single Market. 3 To illustrate, the General Product Safety Directive – which is being reformed – obliges all economic operators to only put safe products on the market. However, online marketplaces are not defined as ‘economic operators’ even though they are an essential part of the supply chain. Existing laws are not supportive of customs either. The Market Surveillance Regulation contains a provision about items blocked by customs due to safety concerns.

…either. The Market Surveillance Regulation contains a provision about items blocked by customs due to safety concerns. It requires their automatic release into the internal market after four working days if customs do not receive a response from market surveillance authorities. As a result, dangerous items may end up in people’s homes despite authorities having identified them at the external border as unfit for free circulation and sale. BEUC urges policymakers to get rid of this provision. The EU should also seize the opportunity of the reform of the Customs Union to bring coherence between internal and external EU policies. Some products and substances made in the EU are regulated but imports do not need to abide by the same rules. This is the case for chemical substances of very high concern.

…but imports do not need to abide by the same rules. This is the case for chemical substances of very high concern. Also, many food imports do not need to comply with EU requirements for environmental protection and animal welfare. Consumers are not aware of this and can be misled when buying imported goods. 2. Break internal silos: better cooperation within the EU The European Commission suggests to reform the governance of customs “to provide for an EU layer” which could help it act as one. Whatever the precise details of such a new governance set up may be, BEUC advises policymakers to: • Improve cooperation between customs and other national/EU agencies to tackle today’s business models and supply chain. At EU level, this should include any agency or structure dealing with import-related topics.

…models and supply chain. At EU level, this should include any agency or structure dealing with import-related topics. Examples are the European Chemicals Agency (ECHA), the European Anti-Fraud Office (OLAF), the new enforcement networks created based on the Market Surveillance Regulation, and the Consumer Safety Network (CSN). o As it thinks about its future customs governance, the European Commission should review all its existing structures – whether agencies, or networks of Member State authorities – to check whether they can be repurposed with a customs angle. Inspiration can be taken from the standardisation strategy, which proposes a new EU hub to combine existing expertise scattered around the EU institutions – to be led by a 'Chief Standardisation Officer'.

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…1 Contact: Maryant Fernández – [email protected] BUREAU EUROPÉEN DES UNIONS DE CONSOMMATEURS AISBL | DER EUROPÄISCHE VERBRAUCHERVERBAND Rue d’Arlon 80, B-1040 Brussels • Tel. +32 (0)2 743 15 90 • www.twitter.com/beuc • www.beuc.eu EC register for interest representatives: identification number 9505781573-45 Co-funded by the European Union Ref: BEUC-X-2023-034 – 24/03/2023 BEUC’S RECOMMENDATIONS ON HARMONISING CROSS-BORDER PROCEDURAL MATTERS IN THE GDPR The Consumer Voice in Europe Ref. Ares(2023)2151988 - 24/03/2023 1 Why it matters to consumers The EU’s General Data Protection Regulation (GDPR) seeks to guarantee people’s fundamental right to the protection of their personal data in an effective way. However, the disparity, complexity, imbalance between parties and inefficiency of some national legal procedures is making it very hard for consumers, and the organisations defending them,…

…the General Data Protection Regulation (GDPR). BEUC has three main recommendations for this initiative to be a success: 1. Mutual recognition of admissibility of complaints and data subject representation. 2. Equal procedural rights for all parties involved in a procedure. Data subjects and organisations representing them should have the same right to be heard and same access to the file that defendants do. 3. Efficient and close cross-border cooperation between Data Protection Authorities (DPAs). Introduction BEUC welcomes and supports the European Commission’s initiative to harmonise some procedural rules on cross-border cases under the GDPR. This echoes BEUC’s recommendations in our 2020 report ‘The Long and Winding Road - Two years of the GPDR: A cross-border data protection enforcement case from a consumer perspective’1.

Winding Road - Two years of the GPDR: A cross-border data protection enforcement case from a consumer perspective’1. In our report we made recommendations about the hurdles BEUC and our member organisations have experienced in our joint action against Google’s location tracking practices.2 We commend the European Data Protection Board (EDPB) for its efforts to foster greater cooperation and create more efficient cross-border enforcement via their guidelines, internal documents, their 2021-2023 Strategy, Work Programme or the ‘Vienna Declaration’.3 We also commend the efforts of the European Data Protection Supervisor (EDPS) to trigger a deeper discussion on how to improve enforcement.4 However, there is 1 The Long and Winding Road - Two years of the GPDR: A cross-border data protection enforcement case from a consumer perspective, BEUC-X-2020-074,…

…https://edps.europa.eu/data-protection/our-work/publications/brochures/2022-11-10-edps- conference-report-2022-future-data-protection-effective-enforcement-digital-world_en 2 a clear need for binding rules to streamline cross-border enforcement, as evidenced by the EDPB’s wish list on GDPR procedural aspects5 sent to the European Commission.

…enforcement, as evidenced by the EDPB’s wish list on GDPR procedural aspects5 sent to the European Commission. Procedural harmonisation is an essential aspect of GDPR application and enforcement. Some national procedures and DPA practices have a major, negative impact on the rights of data subjects. The upcoming regulation should ensure all procedures, policies and practices relating to data protection are consistent, coherent and standardised to the maximum extent possible, keeping in mind the best interests of data subjects. Effective law enforcement is essential not only to protect the rights of those affected and to maintain public confidence in the GDPR, but also to ensure a level playing field for all responsible parties and to prevent forum shopping. As such, it is in the interest of both data subjects and all companies that comply with the GDPR.

…forum shopping. As such, it is in the interest of both data subjects and all companies that comply with the GDPR. The upcoming proposal should ensure that data subjects can exercise their rights in a fair, effective and affordable way. The upcoming regulation should not constitute a race to the bottom in terms of data subjects’ rights. The Commission and the co-legislators must not risk lowering the level of protection of data subjects. BEUC therefore recommends the European Commission to build on best practices amongst EU countries’ national procedural rules that allow data subjects, and the organisations representing them, the effective exercise of data protection rights. While inspiration could also be taken from other fields of law, it is important to underline the GDPR is a fundamental rights instrument under article 16 of the Treaty on the Functioning of the European Union (TFEU).

GDPR is a fundamental rights instrument under article 16 of the Treaty on the Functioning of the European Union (TFEU). The GDPR is not an internal market instrument and the rights of data subjects and organisations representing them should be effectively exercised and preserved in line with articles 8 and 41 of the Charter of Fundamental Rights of the European Union. 1. Mutual recognition of admissibility of complaints and data subject representation The principle of mutual recognition should apply to both the representation of data subjects and the admissibility of complaints. Article 77 GDPR provides a right to lodge a complaint with a supervisory authority for an alleged infringement of the law. Article 80(1) GDPR establishes criteria for organisations to represent data subjects receiving a mandate from them.

Article 80(1) GDPR establishes criteria for organisations to represent data subjects receiving a mandate from them. Article 80(2) leaves it to Member States to allow complaints without a data subject’s mandate. In practice, consumer organisations and other NGOs defending the rights of data subjects have faced unnecessary burdens and delays in the resolution of complaints. For example, in our coordinated action against Google’s location tracking practices, no DPA that received a complaint questioned our members' legal standing to represent data subjects or the admissibility of their complaints. However, the lead authority reviewed our members' standing and the acceptability of the complaints (again) under its own national law a long time after the complaints were originally filed. This led to unnecessary delays in the procedure and added additional burdens to complainants.

…were originally filed. This led to unnecessary delays in the procedure and added additional burdens to complainants. For example, our member Forbrukerrådet lodged a formal complaint before the Norwegian DPA in November 2018. A year later, the Irish DPA, which was designated as the lead authority to address the complaints, requested data about our Norwegian member to establish that it fits the criteria laid out in article 80 GDPR. Our members were also asked 5 https://edpb.europa.eu/system/files/2022-10/edpb_letter_out2022- 0069_to_the_eu_commission_on_procedural_aspects_en_0.pdf 3 to provide additional information about the complainants they represented and how the alleged infringements affected them, such as information about their Google accounts and requests for evidence such as screenshots that documented they experienced the issues raised in the complaints.

…and requests for evidence such as screenshots that documented they experienced the issues raised in the complaints. Similarly, if a Member State allows NGOs to lodge complaints without a mandate from a data subject pursuant to article 80(2) GDPR, the lead authority should not disregard the complaint because under its Member State law this possibility does not exist. For example, Danish law provides for this possibility. BEUC’s Danish member Forbrugerrådet Tænk brought a complaint against Google’s handling of location data under article 80(2) GDPR in March 2018. Afterwards, the Irish Data Protection Commission (DPC) asked our Danish member to re-submit their complaint, but this time on behalf of a data subject because Ireland did not implement article 80(2) GDPR. This created a further impasse and uncertainty. The principle of mutual recognition should apply.

…article 80(2) GDPR. This created a further impasse and uncertainty. The principle of mutual recognition should apply. Representation and complaint admissibility should not be assessed twice. BEUC’s recommendations: • the standing of consumer organisations or other NGOs representing data subjects should only be reviewed once, and by the DPA receiving the complaint. • the admissibility of a complaint should only be assessed once, and by the DPA receiving the complaint. 2. Equal procedural rights for the parties to the procedure. In most cases it is practically impossible for data subjects alone to document a violation of the GDPR, either because doing so requires vast legal and technical knowledge and resources, or because the violation happens invisibly, for example after personal data is being collected by the data controller.

…or because the violation happens invisibly, for example after personal data is being collected by the data controller. Data subjects cannot be expected to file complaints concerning major structural issues or against hidden violations. The GDPR requires the data controller to prove that they are in compliance with the law (art. 5(2) GDPR), not that the data subject or organisations representing them prove that the data controller is breaching provisions. Currently, in some jurisdictions there is an asymmetry in procedural rights between, on the one side, data subjects and representing organisations and, on the other, data controllers subject to a complaint. In addition, a DPA sometimes launches statutory inquiries after receiving complaints on the very topic of the complaint. This has resulted in data subjects or representing organisations not being considered parties in the procedure.

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…1 Contact: Léa Auffret & Laurens Rutten – [email protected] BUREAU EUROPÉEN DES UNIONS DE CONSOMMATEURS AISBL | DER EUROPÄISCHE VERBRAUCHERVERBAND Rue d’Arlon 80, B-1040 Brussels • Tel. +32 (0)2 743 15 90 • www.twitter.com/beuc • www.beuc.eu EC register for interest representatives: identification number 9505781573-45 Co-funded by the European Union Ref: BEUC-X-2023-114 - 21/09/2023 REFORMING CUSTOMS TO BETTER PROTECT EUROPEAN CONSUMERS IN GLOBAL MARKETS BEUC’s recommendations to the European Parliament and EU Member States on the reform of EU customs policy The Consumer Voice in Europe Ref. Ares(2023)6662109 - 02/10/2023 1 Why it matters to consumers The European Commission is proposing to reform the EU Customs Union. This reform is important for consumers because while they may think all imports are safe and comply with EU standards, the reality is more complicated. Consumer…

…ensure that EU product safety, sustainability and other relevant rules are fully respected by traders from elsewhere. 1. A reminder: why consumers urgently need this reform Customs authorities check containers and parcels coming into the EU for compliance with safety and other rules. A 2020 survey by BEUC’s German member, vzbv, on shopping online outside the EU found that 81% respondents think it is important customs ensures that only safe products are put on the market. However, in recent years consumer groups have found a flow of non-compliant, dangerous, or low-quality products coming into the EU. We know online sales are a major source of non-compliance: In one test of 250 products bought from online marketplaces, two-thirds failed safety tests. While the origin of the products was not always clear, this included malfunctioning smoke alarms coming from outside the EU.

…the origin of the products was not always clear, this included malfunctioning smoke alarms coming from outside the EU. According the EU’s Safety Gate report from 2022, half of the product safety alerts in the EU concerned products originating from China and 17% from other third countries. BEUC members also found hackable security cameras, as well as jewellery, cosmetics and toys containing unwanted chemicals from outside the EU1. BEUC’s UK member Which? in August 2023 found 149 listings for defective carbon monoxide (CO) alarms on major online marketplaces. Which? writes “five unsafe CO alarm models labelled ‘Don’t Buys’ … all unbranded and made in China, featured prominently on the online marketplaces”.

…alarm models labelled ‘Don’t Buys’ … all unbranded and made in China, featured prominently on the online marketplaces”. The UK is now outside of the EU, but these tests results are relevant for the EU customs reform because some of these unsafe products were still available to EU consumers a month after alerting authorities2 and the marketplace. The volume of non-compliant products from outside the EU is also underlined by others, such as a French consumer authority and the EU’s own annual statistics on dangerous non- food items (page 18). 1 These products were found by Consumentenbond (the Netherlands), Forbrugerrådet Tænk (Denmark), and Which? (the United Kingdom) respectively. At the time when these results were published, the United Kingdom was part of the European Single Market.

…respectively. At the time when these results were published, the United Kingdom was part of the European Single Market. 2 See for instance this carbon monoxide alarm made and shipped from China to Belgium sold on Aliexpress and listed as ‘Don’t Buy’ by BEUC UK member Which?. 2 In 2022, an EU expert report highlighted that customs authorities face many challenges. These include a growth in global trade and particularly a boom in the import of small packages due to online shopping. Customs also face an increase in the many safety and compliance risks that need to be checked – covering 350 pieces of legislation. The report said “the probability that small consignments will contain non-compliant or dangerous goods is very high. It is not only that checking each parcel is impossible; it is that even checking all those that are identified as presenting a risk is unmanageable.” 2.

…parcel is impossible; it is that even checking all those that are identified as presenting a risk is unmanageable.” 2. BEUC’s assessment of the Commission proposal The EU customs reform proposed by the European Commission in May 2023 is good news for consumers. We welcome the focus on the mission of customs to ensure security and safety and contributing to the EU policies that protect consumers. To make the reform fully deliver to consumers, BEUC recommends the following clarifications and improvements. 2.1. What must be kept and further improved The concept of ‘deemed importer’ The European Commission proposes to better involve online sellers and e-commerce platforms in customs formalities at the point of import by making them “deemed importers”. This would mean marketplaces and other traders will be responsible for the compliance of imported products with EU law.

This would mean marketplaces and other traders will be responsible for the compliance of imported products with EU law. The European Commission stated in its May 2023 press release that “[w]ith online platforms as the official importers, EU consumers can be reassured that all duties have been paid and that their purchases are safe and in line with EU environmental, safety and ethical standards”. Although the articles on deemed importers (21) and release for free circulation (88) taken together seem to support this, we urge this non-fiscal responsibility of online platforms to be spelt out more clearly in the text. This should also detail what authorities – customs or others – can do in case non-compliance is found among deemed importers. Furthermore, the proposal does not spell out what would happen to deemed importers, should they place on the Single Market products infringing EU law.

…not spell out what would happen to deemed importers, should they place on the Single Market products infringing EU law. Sanctions need to be foreseen. Deemed importers will also be responsible to process the payment of customs duties and Value Added Tax (VAT) to customs, instead of consumers. This could contribute to putting an end to surprise customs fees for consumers. These are fees consumers are requested to pay on top of the price of their purchase when an order is delivered at their doorstep. Preventing such negative experience would be a concrete benefit of the customs reform for consumers. 3 A BEUC and vzbv study revealed that consumers are not always informed that the products they are ordering come from outside of the EU. They are not always informed that additional fees might be applied.

…are ordering come from outside of the EU. They are not always informed that additional fees might be applied. If they are, the amount of these fees is generally not disclosed to consumers and can end up costing as much as the item itself1. These surprise fees became very visible when the UK exited the EU. Following an increase of consumer complaints, BEUC in 2021 called on authorities to ensure that all duties and fees are included in the final price. A number of points need clarification. It is unclear in the Commission proposal whether any other charges applied by a private operator, such as fees charged by postal and delivery companies for dealing with customs, would have to be paid by deemed importers. This would truly ensure that consumers no longer experience surprise customs fees.

…have to be paid by deemed importers. This would truly ensure that consumers no longer experience surprise customs fees. Moreover, the concept of deemed importer seems to only apply to traders using the Import One-Stop Shop scheme. The level of obligation for traders not using this scheme should be clarified. The Customs Data Hub The proposed ‘Customs Data Hub’ tool should help pool the necessary data and expertise from different authorities to cross-check if products comply with EU product safety, chemical, environmental, and any other relevant rules. The Commission says the Hub “will compile data provided by businesses and … provide authorities with a 360-degree overview of supply chains and the movement of goods”. The Customs Data Hub is expected to come to life in 2028, and to be fully operational as of 31 December 2037.

…goods”. The Customs Data Hub is expected to come to life in 2028, and to be fully operational as of 31 December 2037. While BEUC understands the complexity of developing IT systems, the challenges facing customs today – seeing the boom in e-commerce – will only grow. A short-term solution must be found to allow authorities to better exchange data with each other as soon as possible. The proposal also needs to be adapted to include the recommendations of the European Data Protection Supervisor to fully preserve EU citizens’ data protection rights. BEUC recommendations 1. Deemed importers shall be liable for ensuring compliance with EU law. 2. The EU Customs Authority, or at least national customs authorities, should be empowered to impose fines on deemed importers placing non- compliant products on the market. 3.

…authorities, should be empowered to impose fines on deemed importers placing non- compliant products on the market. 3. It should be made clearer in the text that all extra charges related to customs will no longer have to be paid by consumers, if not announced at the time of sale. This should also apply to traders not using the so-called ‘Import One Stop Shop’ (IOSS). 4 2.2. What needs major improvement Release for free circulation In this proposal, the Commission foresees that if customs agents have a doubt about the compliance of a product with EU law, they should contact market surveillance or other authorities. If customs receive no response after the deadline for feedback set in law (four working days for market surveillance), it has to release the product in the EU market. This is what is provided today in the Market Surveillance Regulation.

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