General Product Safety Regulation 2024: New Standards for Safer Products

The General Product Safety Regulation[1] (GPSR), replacing the previous legal provisions on the topic of non-food products,[2] was adopted by the European Parliament in March 2023, and it officially came into force on 12 June 2023. However, businesses are given a transition period to adapt to the new rules. Hence, the provisions of the GPSR will start applying from 13 December 2024. This means that there is still time for manufacturers and distributors of products to factor the new rules in their operations. Time will soon run out though. Below we tried to summarize what there is to know on the topic in a nutshell.

The aim of the GPSR is to ensure the health and safety of consumers and the functioning of the internal market as regards products intended for consumers[3] in the context of the new challenges posed to product safety by the digitalisation of economies within the EU.[4]

In brief, the GPRS:

• broadens the scope of product safety legislation to include new product types or emerging technologies.

• enhances market surveillance imposing stricter measures for compliance and risk monitoring.

• focuses on online sales and the safety of digital goods.

The upcoming changes will have a direct impact on businesses and consumers. For businesses, the new provisions mean more obligations and stricter requirements, while for consumers, they (should) mean greater peace of mind and trust in product safety.

Key aspects to be considered by businesses are included in the table below.

Table on key considerations GPSR

Conclusion

As the General Product Safety Regulation 2024 takes effect, businesses and consumers alike will benefit from enhanced protections and stricter safety standards, fostering a safer market environment.

If you’re a business wondering what the GPSR means to you in practice, feel free to reach out to us. Happy to help!

[1] Regulation (EU) 2023/988 of the European Parliament and of the Council of 10 May 2023 on general product safety, amending Regulation (EU) No 1025/2012 of the European Parliament and of the Council and Directive (EU) 2020/1828 of the European Parliament and the Council, and repealing Directive 2001/95/EC of the European Parliament and of the Council and Council Directive 87/357/EEC.

[2] i.e. Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (also known as the “General Product Safety Directive”) and the Council Directive 87/357/EEC of 25 June 1987 on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers (also known as the “Food Imitating Product Directive”).

[3] GPSR, Preamble Para. (4).

[4] As mentioned in the explanatory note available on the EC website at https://commission.europa.eu/business-economy-euro/doing-business-eu/eu-product-safety-and-labelling/product-safety/general-product-safety-regulation_en (last accessed on 3 October 2024).

Direct vs. Indirect Damages: When Are Losses Indemnifiable Under Romanian Law?

In our practice, we often encounter the question whether clients should accept liability for indirect and contingent damages. Here’s a brief explanation as to why indirect damage cannot be enforced under Romanian law.

Concept

“Damages” (in Romanian, “daune interese” or “despăgubiri”) refer to the compensation that one expects to receive or may receive following a situation where they suffered a loss due to another person’s intentional or unintentional unlawful conduct. Understanding the concept of damages under Romanian law is crucial because it impacts and applies to all interactions within the business environment. From a simple non-disclosure agreement that covers damages for breach of confidentiality obligations to indemnification under an M&A deal, the concept remains consistent. Also, it is noteworthy that the concept of “damages” has applicability both in contract law and in tort law, with contract law allowing certain flexibility of the parties in what concerns damages quantification, the conditions needing to be met for indemnification etc.

Types of Damages in Romania

The Romanian Civil Code allows for the claiming of compensatory damages (in Romanian, “daune materiale”) and moral damages (“daune morale”). Both kinds need to meet the conditions for being awarded, as further detailed below.

Compensatory damages are the reparation in cash that the person causing the damage needs to pay back to the damaged party. For example, a party breaching an agreement may be held liable to pay compensatory damages to cover the actual loss suffered by the other party or the loss of opportunity suffered by the other party. Moral damages are the reparation in cash or otherwise for damages brought against the other party’s reputation, image etc. Moral damages are usually harder to quantify and their grounds harder to prove.

Prerequisites for Damages under Romanian Law

The rule under Romanian law is that, for a claim for damages to be admissible (i) the damage should be existing (not contingent); (ii) the damage should be the consequence of an unlawful action or inaction; and (iii) the person inflicting the damage should be at fault (intention or negligence).

The loss – which covers both the loss actually suffered (damnum emergens) by the party claiming damages and the benefit deprived of (lucrum cessans) needs to be (i) a direct result of the unlawful action or inaction – Romanian law does not allow indemnification for indirect losses; and (ii) certain – this means that the loss has already occurred or is certain to occur in the future.

Indirect and uncertain losses are not indemnifiable under Romanian law, as these losses do not meet the legal prerequisites for indemnification.

Conclusion

Understanding the concept of damages under Romanian law is essential for anyone engaged in business or legal matters in Romania. Whether dealing with compensatory or moral damages, it’s crucial to meet the legal prerequisites for a claim to be admissible, ensuring that the loss is direct, certain, and caused by unlawful conduct. While the flexibility in contractual indemnification allows some room for negotiation, Romanian law remains stringent in its exclusion of indirect and uncertain losses. By grasping these principles, parties can better navigate liability and protect their interests in both contractual and tortious matters.

The use of images captured by the video surveillance system for the disciplinary investigation of employees

The fourth article in the series dedicated to the practical aspects of labor law and data protection explores a question frequently asked by employers: is it permissible to use video footage captured by the surveillance system in disciplinary investigations involving employees, and subsequently, present it as evidence in legal proceedings?

Let's break down the topic into two easy-to-understand parts:

a) Examining procedural legal rules.

b) Understanding personal data processing laws.

Procedural legal rules

The provisions of the Labor Code that regulate labour disputes do not prohibit the use of video recordings in the disciplinary investigation. They rather contain general references to the concept of "evidence", without necessarily indicating the nature of admissible evidence in labour disputes.

However, art. 275 of the Labour Code[1], part of the chapter that regulates certain special rules of the procedure applicable to labour conflicts, expressly establishes that the rules of the Labor Code are complemented by the legal provisions established by the Civil Procedure Code.

The Civil Procedure Code allows the use of various forms of evidence, including what is termed "material evidence," such as photographs, films, discs, audio tapes, and other technological mediums, in civil conflicts such as labour disputes, on the condition that they were acquired lawfully and ethically.

Hence, since the special legislation in the field of labour relations does not prohibit, and according to the Civil Procedure Code, video recordings are material evidence, we may conclude that, from a procedural point of view, there is no obstacle in using video recordings as evidence in the course of a disciplinary investigation and/or labour dispute in order to prove a disciplinary offence[2].

However, the absence of a procedural ban in using video recordings as evidence, is not a sufficient condition for their practical use.

Hence, it is crucial to ascertain the legality of capturing captured images intended for use as evidence in disciplinary proceedings or labour disputes, by referencing the original purpose of their collection and its legitimacy.

Personal data processing

The legitimacy of video recordings usage, captured in the employer’s premises, to prove disciplinary offenses must be seen in close connection with the primary purpose of capturing that recording.

Video surveillance can serve several legitimate purposes, such as, for example, ensuring the protection of property and other assets, ensuring the protection of life and physical integrity of individuals[3].

Therefore, if the video monitoring took place for the purpose of protecting assets, persons, premises and the act of an employee is closely related to the violation of internal rules prohibiting stealing of assets, destruction of assets or acts of violence, then we may consider that the use of those recordings the purpose of which was of monitoring such events, could be used as evidence to prove a disciplinary offense consisting of: physically assaulting a colleague, stealing an asset from the employer's assets and leaving the workplace in the possession of such assets.

On the contrary, the use of the same records to prove disciplinary violations that are not closely related to the purpose of monitoring and that do not meet the level of reasonable expectation on the part of employees (e.g. to prove that an employee is late at work or to prove the work performance of employees) might be considered[4] a disproportionate measure in relation to the rights and freedoms of employees since those disciplinary offences can be proven by using less intrusive means, such as the use of information captured by the attendance card systems or, respectively performing employees’ appraisal according to the provisions of the employer’s Internal Regulation.

Caution!

In different circumstances, the same disciplinary offence may fall within the purpose pursued by the employer when collecting personal data by video surveillance system.

Ex. 1:

§  The purpose of video monitoring: ensuring the safety of workers at the workplace

§  Disciplinarily investigated act: smoking close to inflammable equipment.

or may exceed it

Ex. 2:

§  The purpose of video monitoring: ensuring the safety of workers at the workplace

§  Disciplinarily investigated act: taking too frequent smoking breaks.

By reference to Art. 22 of the GDPR which provides the right of data subjects not to be subject to decisions based solely on automated processing which significantly affects them, obtaining the employees’ point of view on the images used during the disciplinary investigations is necessary.

Also, the identification and use, if possible, of additional evidence is always welcome.

To conclude, in order to prevent issues related to the legitimacy of such records that could be used in a disciplinary investigation procedure, from the perspective of data privacy provisions, a careful analysis of each fact is recommendable since, as mentioned above, the same fact/offence may or may not, depending on the circumstances, fall under the legitimate interest pursued by the employer through video monitoring of the areas.

[1] Art. 275: "The provisions of this title are supplemented by the provisions of the Code of Civil Procedure".

[2] Art. 341 para. 2 of the Civil Procedure Code: "Photos, photocopies, films, discs, sound recording tapes, as well as other such technical means, are also material means of evidence, if they were not obtained by violating the law or good manners."

[3] Guide 3/2019 regarding the processing of personal data through video devices  issued by the EDPB.

[4] Opinion no. 4/2004 of the former Working Group art. 29: images collected solely to protect property and/or detect, prevent and control serious misconduct shall not be used to charge an employee with minor disciplinary misconduct.