GSPR Article 51 exemption on 2nd hand items

[reynardnoirrailwayana2015]

Hello all,

I note that eBay has updated the GSPR advice page to cover Article 51 exemptions on used goods. This is super important as it means used goods manufactured between 2001-2024 do not need the GSPR information, as they are not subject to the regulations.

The text states: "Article 51 of the GPSR is also applicable if you sell second-hand products that were first supplied to the EU market before December 13, 2024, and comply with the General Product Safety Directive (2001/95/EG). For these products, you’re not required to provide GPSR-required information in your listings. However, you may still have informational obligations under other regulations. We encourage you to add any GPSR-related information to your listings if you believe it’s necessary. "

So the questions coming out of this are

- How can you enter the exemption on a listing? it doesn't seem to be possible beyond year of manufacture (which isn't actually adequate) 

- If you do nothing will eBay simply assume compliance? (if so will everyone simply carry on as now?)

- Do items pre-dating the 2001 act become unsaleable? or does the 2024 act have to be complied with? Or are they just ignored?

[4_bathrooms]

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@reynardnoirrailwayana2015 wrote:

The text states: "Article 51 of the GPSR is also applicable if you sell second-hand products that were first supplied to the EU market before December 13, 2024, and comply with the General Product Safety Directive (2001/95/EG). 

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That isn't what Article 51 states; it states this:

"Member States shall not impede the making available on the market of products covered by Directive 2001/95/EC which are in conformity with that Directive and which were placed on the market before 13 December 2024."

As per Directive 2001/95/EC:

"Article 1

1. The purpose of this Directive is to ensure that products placed on the market are safe.

2. This Directive shall apply to all the products defined in Article 2(a). Each of its provisions shall apply in so far as there are no specific provisions with the same objective in rules of Community law governing the safety of the products concerned."

The highlighted part means the directive applies to aspects of products that are not already subject to other safety legislation. This means anything that requires a CE mark and/or needs to meet an EN standard has requirements outside the General Product Safety Regulations. Such items will still require a Declaration of Conformity, technical documentation etc. whether new or used regardless whether they had previously been placed on the EU market.

This is the definition used in Article 2(a):

"Article 2

For the purposes of this Directive:

(a) "product" shall mean any product - including in the context of providing a service - which is intended for consumers or likely, under reasonably foreseeable conditions, to be used by consumers even if not intended for them, and is supplied or made available, whether for consideration or not, in the course of a commercial activity, and whether new, used or reconditioned.

This definition shall not apply to second-hand products supplied as antiques or as products to be repaired or reconditioned prior to being used, provided that the supplier clearly informs the person to whom he supplies the product to that effect"  

The second paragraph is where I believe eBay has got their wires crossed.

[reynardnoirrailwayana2015]

In terms of actually selling on eBay however, as the 2001 is in force, it would be a carry on as now situation - no requirement to upload the documentation (which frankly most people have not got)?

This still creates the issue for listings, how will ebay know which rules apply on any specific listing? 

[4_bathrooms]

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@reynardnoirrailwayana2015 wrote:

In terms of actually selling on eBay however, as the 2001 is in force, it would be a carry on as now situation - no requirement to upload the documentation (which frankly most people have not got)?

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Anything that requires a CE mark will require the documents to be uploaded - that is the "informational obligations under other legislation" eBay was referring to. However, where an online marketplace like eBay is concerned Article 51 doesn't appear to apply at all. This is from the Official Journal of the European Union:

"2.4. Making available and placing on the market in case of distance and online sales

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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."

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@reynardnoirrailwayana2015 wrote:

This still creates the issue for listings, how will ebay know which rules apply on any specific listing? 

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I'm pretty sure it will be category-specific. If the product requires a CE mark the manufacturer (or their EU-based representative) must be identified and the documents uploaded - the required information can be found in the documentation. If the product doesn't require a CE mark and the manufacturer isn't EU-based or the seller otherwise can't obtain the necessary information the seller must appoint an EU-based responsible person unless the product is specifically exempted from the GPSRs.