Regulation (EU) 2023/988 on product safety: new responsibilities for online marketplace providers

In a world where online selling is becoming increasingly prevalent, product safety is emerging as a major concern for both consumers and industry professionals. Regulation (EU) 2023/988, which came into force on 13 December 2024, represents a significant step forward in consumer protection by establishing new obligations for providers of online marketplaces.

By replacing Directive 2001/95/EC, this regulation addresses the challenges posed by the evolution of technologies and commercial practices, ensuring that the products available on the market are not only compliant, but also entirely safe. This reform requires all market players, whether manufacturers, distributors or marketplace providers, to comply with strict standards designed to guarantee consumer safety. This development raises crucial questions regarding the responsibilities of economic operators and the implementation of the new requirements.

In this article, we will examine these new obligations in detail, their impact on marketplace providers and the penalties incurred in the event of non-compliance.

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1. What are the new obligations for economic operators?

Regulation (EU) 2023/988 imposes a series of essential obligations on economic operators, in particular manufacturers, distributors, importers and authorised representatives. The main objective is to ensure product compliance and the safety of goods placed on the market. Among these obligations, the following may be highlighted:

• The need to carry out a risk assessment for each product intended for sale.
• The maintenance of technical documentation accessible to surveillance authorities, such as the DGCCRF in France.
• The commitment to record complaints relating to products as well as the corrective measures taken.
• Active cooperation with surveillance authorities, in particular with regard to the notification of safety issues.

This regulation aims to strengthen product safety and therefore consumer protection, by imposing precise standards that each operator must comply with. In addition to the general obligations, Regulation 2023/988 introduces further requirements for providers of online marketplaces, given their crucial role in the product distribution chain. This compliance dynamic is of paramount importance in ensuring a sound and secure commercial environment. In the remainder of this article, we will address how online marketplace providers must comply with these requirements in order to guarantee the safety of the products sold.

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2. How must online marketplace providers comply with the Regulation?

Providers of online marketplaces occupy a unique position within the commercial ecosystem, acting as intermediaries between consumers and sellers. With Regulation (EU) 2023/988, these players are subject to additional responsibilities, making their activity contingent on stricter product safety standards. To ensure this compliance, they must meet several requirements:

• Verify that each product offered for sale on their platform complies with the regulatory safety requirements.
• Establish an assessment process for the suppliers who sell products via their platform, in order to ensure that they also comply with the product compliance obligations.
• Update their sales policies and their terms of use to provide for specific clauses concerning product safety.
• Develop alert systems to notify the authorities, such as the DGCCRF, in the event of a problem relating to a product offered for sale to users.
• Facilitate communication between consumers and producers, by enabling rapid feedback on product safety.

Furthermore, providers must also comply with the European Union's Safety Gate system, a platform enabling non-compliant products to be reported and tracked. This compliance is crucial in order to avoid cases of product recall that may harm the reputation of their brand and result in penalties. Non-compliance with the obligations imposed by the Regulation may give rise to serious consequences that go beyond financial penalties. Marketplace providers must therefore take these new requirements seriously and adapt their operations accordingly in order to avoid any dispute. As part of this change, it will be essential to explore the penalties that may arise in the event of non-compliance with the obligations, and how providers can protect themselves legally against potential disputes.

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3. What are the penalties for non-compliance with the obligations?

The importance of the obligations imposed by Regulation (EU) 2023/988 is underscored by the severe penalties that accompany non-compliance with them. Indeed, economic operators, including providers of online marketplaces, must be aware of the consequences that may arise from their negligence. The penalties for non-compliance may take various forms, in particular:

• A 5-year term of imprisonment for the executives or managers who fail to comply with the product recall obligations.
• A fine of 3,000,000 euros for legal entities, with the possibility of a proportional increase of up to 10% of the average annual turnover, calculated over the last three financial years.
• Administrative penalties, on a case-by-case basis, depending on the seriousness and nature of the offence.

These penalties, set out in Article L. 452-5-1 of the Consumer Code, are intended to deter breaches of product safety standards and to strengthen the commitment of market players. This underlines the crucial importance of cooperation with the surveillance authorities, such as the DGCCRF, but also with other economic operators, in order to avoid situations of risk for consumers. Moreover, Regulation 2023/988 provides that online marketplace providers must also actively participate in recall procedures and corrective measures, which further increases their responsibility. The consequences of non-compliance with these obligations should not be taken lightly. A company's reputation may be significantly affected, and disputes may emerge, generating additional costs and impacting the relationship with customers. Thus, active monitoring and rigorous compliance with safety standards prove essential in order to continue guaranteeing consumer trust. As part of this new regulation, it therefore becomes imperative for online marketplace providers to ensure their compliance in order to avoid any risk of an offence. An awareness of the issues at stake and the consequences of a breach can contribute to a safer online market.