Law On The Integration Of Book Ix "security Products And Services" In The Code Of Law Economic And On Insertion Of Definitions Specific To The Ix Book In Book I Of The Code Of Law Economic (1)

Original Language Title: Loi portant insertion du livre IX « Sécurité des produits et des services » dans le Code de droit économique et portant insertion des définitions propres au livre IX dans le livre Ier du Code de droit économique (1)

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25 AVRIL 2013. - An Act to insert Book IX "Product and Service Safety" into the Economic Law Code and to incorporate the definitions specific to Book IX into Book Ier Economic Law Code (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - The Economic Law Code
Art. 2. In book IerTitle 2, of the Economic Law Code, reads as follows:
“Chapter 7: Definitions of Book IX
Art. I.10. The following definitions are applicable to Book IX:
1° "Product": any bodily property that is new, used or repackaged, that has been provided or made available to a user on an expensive basis or free of charge as part of a commercial or service activity, as well as any tangible property made available by an employer or intended to be made available to a worker to perform his or her work.
Facilities are also targeted, in other words, the establishment of products arranged in such a way that they can operate together. are not, on the other hand, covered used products delivered as antiquities or products that, to make use of them, must be repaired or repacked, provided that the supplier clearly informs the person to whom it provides the product;
2° "safe product": any product that, under normal or reasonably foreseeable conditions of use, including the duration and, where applicable, of commissioning, installation and maintenance requirements, does not present any risk or only reduced risks consistent with the use of the product and considered acceptable in accordance with a high level of health and safety of persons. The ability to reach a higher level of safety or to obtain other products with a lower risk is not a sufficient reason to consider a product as dangerous. During the evaluation it is well taken into account:
(a)the characteristics of the product, including its composition, packaging, assembly conditions and, where applicable, installation and maintenance;
(b) the effect of the product on other products if one can reasonably foresee the use of the first with the latter;
(c) the presentation of the product, its labelling, warnings and any instructions relating to its use and disposal and any other indication or information relating to the product;
(d) categories of users who are at high risk when using the product, especially children and the elderly;
3° "safe product": any product that does not meet the definition "safe product";
4° "product intended for the consumer": any product intended for the consumer or reasonably expected to be used by consumers, even if it does not specifically target them. Only products intended for professional purposes whose labelling specifies this professional use and which are normally not present in consumer-accessible distribution are excluded;
5° "service": any provision to consumers of a product and any use by a service provider of a product that is at risk to the consumer, provided that it is a product that has a direct relationship with the service delivery;
6° "safe service": any service offering only safe products that pose no risk to the user or only reduced risks compatible with the service delivery and considered acceptable in accordance with a high level of health and safety protection;
7° "hazardous service": any service that does not meet the definition of "safe service";
8° "producer" :
(a) the manufacturer of the product or service provider when established in a Member State, and any other person who presents himself or herself as a manufacturer by applying his or her name, mark or other distinguishing sign, or the person who repacks the product, and any other person who presents himself or herself as a service provider;
(b) the representative of the manufacturer or service provider, where they are not established in a Member State, or, in the absence of a representative established in a Member State, the importer of the product or distributor of the service;
(c) other professionals in the marketing chain or service delivery, as their activities may affect the safety characteristics of a product placed on the market.
(d) the employer who manufactures products for use in the workplace of its own business;
9° "Distributor": any professional in the marketing chain or service delivery whose activity does not affect the safety characteristics of the product;
10° "worker": the worker as defined in Article 2, § 1er1°, of the Act of 4 August 1996 on the welfare of workers in the execution of their work;
11° "employer": the employer as defined in Article 2, § 1er2°, of the Act of 4 August 1996 on the welfare of workers in the execution of their work;
12° "user": the consumer, employer or worker as the case may be;
13° "acting agency":
(a) any organization that, as part of Book IX or its enforcement orders, intervenes in the development of a risk analysis, the definition of preventive measures, the conduct of implementation inspections, the conduct of maintenance inspections, the development of inspection or maintenance schemes, the conduct of periodic inspections or periodic audits;
(b) any organization that, in the context of Book IX or its enforcement orders, is designated as a notified or approved body for the implementation of conformity assessment procedures;
(c) any organization that, under Book IX or its enforcement orders, intervenes to control the safety of a product or service in another way.
14° "risk": the possibility that damage results from the use or presence of a dangerous product. Risk factors are environmental factors and individual factors that influence the possibility or severity of the injury;
15° "serious risk": any risk, including those whose effects are not immediate, which requires rapid intervention by public authorities;
16° "the Minister": the Minister who has the protection of consumer safety in his duties;
17° "return": any action to obtain the return of a hazardous product that the producer or distributor has already provided to the user or made available to the user;
18° "removal": any measure to prevent the distribution or exposure and supply of a dangerous product and the provision of a dangerous service;
19° "Harmonized Standard": any non-mandatory national standard of a Member State that is the transposition of a European standard that has been the subject of a mandate entrusted by the European Commission to a European standardization body whose reference has been published in the Official Journal of the European Communities. References to the Belgian standards that comply with this provision are published in the Belgian Monitor;
20° "Member State": Member State of the European Union, Turkey, or a Member State of the European Free Trade Association which is a Contracting Party to the Agreement on the European Economic Area. "
Art. 3. In the same Code a book IX is inserted, as follows:
“Book IX. Product and service security
CHAPTER 1er. - General security obligation
Art. IX.1er. This book focuses on the protection of user safety and the transposition of Directive 2001/95/EC of 3 December 2001 of the European Parliament and the Council on general product safety.
For products and services subject to specific safety regulations, this book is only applicable to risks that are not regulated by this specific regulation.
Art. IX.2. Producers are required to put on the market only safe products and offer only safe services.
Art. IX.3. § 1er. A product or service is presumed to be safe when conforming to harmonized standards, for risks and risk categories covered by these standards.
§ 2. In the total or partial absence of harmonized standards for a product or service, compliance with the general security obligation is assessed taking into account the following elements when they exist:
1° the non-binding national standards transposing European standards other than those referred to in Article I.10.19°;
2° Belgian national standards;
3° the recommendations of the European Union Commission setting out guidelines for the evaluation of product safety;
4° the codes of good conduct for the safety of the products in force in the sector concerned;
5° the current state of knowledge and technology;
6° the safety to which consumers can reasonably expect;
7° of international standards.
Art. IX.4. § 1er. In order to ensure the protection of the safety and health of the user, the King may on the Minister's proposal:
1° prohibit or regulate, for a product category, manufacture, import, processing, export, offer, exhibition, sale, processing, transport, distribution even free of charge, rental, provision, delivery after repair, commissioning, detention, labelling, packaging, circulation or use, as well as safety and health conditions that must be observed;
2° prohibit a category of services or establish, for a category of services, the safety and health conditions in which they may be prescribed.
The Minister or his or her delegate shall consult for each draft Order pursuant to this paragraph a representation of the relevant product or service sector, consumer organizations and, where appropriate, workers' organizations.
This consultation can take place via a request for advice addressed to the Consumer Safety Commission. The Minister or his or her delegate shall determine the time limit for giving the notice. This period may not be less than two months. After this period, the Board's notice is no longer required if a consultation is held as provided for in the previous paragraph.
§ 2. The Minister or his or her delegate may withdraw a product from the market or prohibit a service where it has been found that one or more of the product in question does not meet the general security obligation or an order made pursuant to subsections 1er and 3, or Article IX.5, §§ 1er and 2. The Minister or his or her delegate shall consult with the producer of the affected product or service and inform the producer no later than fifteen days after the measures have been taken.
§ 3. Paragraphs 1er or 2, may also be ordered the following:
1° the withdrawal of the market, the recovery for the modification, the total or partial refund or the exchange of the products concerned, and their destruction when the latter is the only means of stopping the risk;
2° the order or regulation of the service;
3° of user information obligations;
4° procedures, tests and markings that are mandatory or optional.
§ 4. For decrees that transpose measures taken at the European level or derive from it, the consultations referred to in paragraphs 1er and 2 are not mandatory.
§ 5. The Minister or his delegate shall inform the Consumer Safety Commission of the measures taken, no later than fifteen days after the coming into force of an order made pursuant to this section.
Art. IX.5. § 1er. In the event of a serious risk, the Minister or his or her delegate may, for a period not exceeding one year and renewable for a period not exceeding one year, issue a reasoned, total or partial prohibition or set conditions for:
1° the manufacture, import, processing, export, offer, exhibition, sale, processing, transport, distribution even free of charge, rental, provision, delivery after repair, commissioning, detention, labelling, packaging, circulation or mode of use of a product or class of products;
2° the provision of services related to these products.
This interim measure may be converted to a final measure in accordance with the procedures referred to in Article IX.4.
§ 2. By order or decision pursuant to paragraph 1er, may also be ordered the following measures:
1° the withdrawal of the market, the consignation, the recovery for the modification, the total or partial refund or the exchange of a product or class of products, and their destruction if it is the only means of stopping the risk;
2° of user information obligations.
§ 3. The Minister or his or her delegate shall consult with producers or representation of the sector beforehand, but shall not prejudice the urgent intervention required by the circumstances. If, due to the urgency of the measure, the consultation cannot take place in advance, the parties concerned shall be notified of the consultation no later than fifteen days after the action has been taken.
§ 4. For decrees that transpose measures taken at the European level or deriving from it, this consultation is not mandatory.
§ 5. The Minister or his delegate informs the Consumer Safety Commission no later than fifteen days after the Order comes into force.
Art. IX.6. If a product or service does not meet the general security obligation referred to in this book, or is not in accordance with an order made pursuant to Article IX.4, §§ 1er to 3, or Article IX.5, §§ 1er and 2, costs related to the enforcement of the provisions of Articles IX.4 and IX.5 may be borne by the producer concerned, subject to the conditions set out by royal decree deliberated in the Council of Ministers.
Art. IX.7. The Minister or his or her delegate may:
1° send warnings to producers and ask them to put the products or services they offer to the user in accordance with Article IX.2 or with the orders made pursuant to Article IX.4, §§ 1er to 3, or Article IX.5, §§ 1er and 2;
2° prescribing to the producers concerned to submit to the analysis or control of an independent laboratory, within a specified period of time and at their costs, their products or services offered to the consumer when, for a product or service already marketed, there are sufficient indications of a danger, or when the characteristics of a new product or service justify this precaution.
The King determines, by order, the terms and conditions of reimbursement, if any, of amounts exposed by producers in connection with these analyses or control.
As long as a product or service has not been subjected to the analysis or control prescribed under this section, it is deemed not to meet the requirements of section IX.2 unless the evidence to the contrary is reported.
Art. IX.8. § 1er. Within the limits of their respective activities, producers provide the user with information to assess the risks inherent in a product during its normal or reasonably foreseeable duration of use, where they are not immediately noticeable without an adequate warning, and to protect themselves.
However, the presence of such a warning does not exempt from the fulfilment of the other obligations set out in this book.
§ 2. Within the limits of their respective activities, producers adopt measures proportionate to the characteristics of the products and services they provide, which allow them:
1° to be informed of the risks that these products and services may present;
2° to be able to engage in timely actions, including, if necessary to avoid these risks, the withdrawal of the market, the proper and effective warning of users and the recall with them. The actions may be imposed, either by the King or by the Minister or his delegate, pursuant to sections IX.4 and IX.5.
These measures include:
1° the indication, by means of the product or its packaging, of the identity and contact details of the producer and the reference of the product or, if any, of the lot of products to which it belongs, except in cases where the omission of this indication is justified;
2° in all cases where appropriate, the conduct of sample tests on products marketed, the examination of claims and, where appropriate, the keeping of a claim register and the information of distributors by the producer on the monitoring of these products.
§ 3. Distributors are required to contribute to the fulfilment of applicable security obligations, in particular by not providing products that they know or should have estimated, on the basis of information in their possession and as professionals, that they do not meet these obligations. In addition, within the limits of their respective activities, they participate in the monitoring of the safety of the products put on the market, in particular by the transmission of information on the risks of the products, by the holding and supply of the documents necessary to trace their origin, as well as by the collaboration of the actions undertaken by the producers and the competent authorities to avoid the risks.
§ 4. Producers and distributors immediately inform the Central Box for products when they know or must know, on the basis of the information in their possession and as professionals, that a product or service that they have put on the market presents to the user risks incompatible with the general security obligation or does not meet an order made pursuant to Article IX.4, §§ 1er and 3, or Article IX.5, §§ 1er and 2. They provide at least the following information:
1° data allowing an accurate identification of the product or batch of products concerned;
2° a complete description of the risk associated with the products concerned;
3° all available information to trace the product;
4° a description of the steps undertaken to avoid any risk to users.
The King is entitled to fix the content and form of the notification form.
§ 5. Producers and distributors, within the limits of their activities, cooperate with the competent authorities, at the request of the competent authorities, for actions undertaken to avoid the risks of products they provide or have provided.
Art. IX.9. For consumer products, the labelling and information prescribed by this book and its enforcement orders, the methods of use as well as the guarantee documents are at least written in a language that is understandable to the average consumer, given the linguistic region where the products or services are marketed. This obligation also applies to other products, unless the orders adopted under sections IX.4 and IX.5 provide for derogatory conditions.
Art. IX.10. The King shall take the necessary measures to ensure the effective operation of a data collection system on accidents in which the products or services referred to in I.10.1° and 5° may be involved.
Art. IX.11. The King may determine the criteria for aggregation and operation of the participating organizations, the rules for their organization and missions, and the modalities for monitoring their compliance.
CHAPTER 2. - Information and opinion structures
Art. IX.12. Within the Federal Public Service Economics, P.M.E., Average Classes and Energy is created "A central market for products", hereafter referred to as "Central market". The essential tasks of the Central Bank are:
1° be the point of contact for consumers, producers, distributors, employers and authorities for products or services that do not meet or would not comply with the provisions of this book or its enforcement orders and that may or may affect the safety or health of users;
2° be the Belgian contact point for European exchange systems with regard to product safety;
3° be the point of contact where producers and distributors notify a serious accident resulting from the use of the product they have provided or made available or of the service presumed, and where they declare that the product or service they have provided or made available no longer meets the general security obligation referred to in this book or an order made pursuant to Article IX.4, §§ 1er and 3, or Article IX.5, §§ 1er and 2;
4° Identify and centralize all types of data on the risks of products and services and keep them available to designated agents in accordance with Article XV.1er;
5° coordinate federal information campaigns on the safety and safety of products and services.
The King can carry out additional missions with regard to consumer safety and health.
In accordance with transparency requirements, the Central Bank makes available to the public all information on the risks of products and services for the health and safety of the user. In particular, the public will have access to information on product identification, the nature of risk and the measures taken.
Art. IX.13. The Central Bank assumes a coordination mission. The Central Bank transmits the specific questions to which it cannot answer immediately and the claims of consumers, producers or distributors for execution to the administration concerned who informs it of the reserved suite. The Central Bank must provide the administrations with all the information it has for the execution of its mission and which concerns the competences of the administration concerned and may request the administrations concerned all the documents and other data it needs for the execution of its mission.
Each year, the Central Bank prepares an activity report for the previous year. In addition to this report, there is a statistical overview of reported accidents involving products, complaints and communications relating to the safety and safety of products and releases received via European alert systems.
Art. IX.14. In the materials under this book and its enforcement orders, the King shall determine for a product or class of products, on the joint proposal of the Minister and other ministers who have the safety of that product or class of products in their duties:
1° the composition of Belgium's representation to international or supranational organizations;
2° the assignment of skills and missions related to the preparation of execution orders. In this context, the King may determine that, for the purposes of sections IX.4 and 5, other advisory bodies that the Consumer Safety Commission is required to consult in accordance with the same procedures. "
CHAPTER 3. - Abrogatory provision
Art. 4. The Act of 9 February 1994 on the Safety of Products and Services, as amended by the Acts of 4 April 2001, 18 December 2002, 27 December 2005 in 25 April 2007, is repealed, except articles 14 to 19, and articles 20 to 26.
CHAPTER 4. Attribution of skills
Art. 5. Existing laws or enforcement orders that refer to the repealed provisions referred to in section 4 are presumed to refer to the equivalent provisions of the Economic Law Code as set out in this Act.
Art. 6. The King may replace references in existing laws or decrees to the provisions of the Act of 9 February 1994 repealed by section 4 with references to the equivalent provisions of the Economic Law Code, as set out in this Act.
Art. 7. The King may coordinate the provisions of the Economic Law Code, as set out in this Act, with the provisions that would have expressly or implicitly amended them until coordination is established.
To this end, He may:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
CHAPTER 5. - Entry into force
Art. 8. The King shall determine the effective date of this Act.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 25 April 2013.
ALBERT
By the King:
Minister of Economy and Consumers,
J. VANDE LANOTTE
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
See:
Documents of the House of Representatives:
53-2610 - 2012/2013:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text corrected by the commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Full report: 14 March 2013.
Documents of the Senate:
5-2012 - 2012/2013:
No. 1: Project not referred to by the Senate.