Procedure at national level for dealing with batteries presenting a risk
1. Without prejudice to Article 19 of Regulation (EU) 2019/1020, where the market surveillance authorities of one Member State have sufficient reason to believe that a battery covered by this Regulation presents a risk to human health or safety of persons, to property or to the environment, they shall carry out an evaluation in relation to the battery concerned covering all relevant requirements laid down in this Regulation.
Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the battery does not comply with the requirements laid down in this Regulation (‘non-compliant battery’), they shall without delay require the relevant economic operator to take all appropriate corrective action, within a reasonable period prescribed by the market surveillance authorities and commensurate with the nature of the risk, to bring the battery into compliance with those requirements, to withdraw it from the market, or to recall it.
The market surveillance authorities shall inform the relevant notified body accordingly.
2. The market surveillance authorities shall inform the Commission and the other Member States of the results of the evaluation and of the actions which they have required the economic operator to take.
3. The economic operator shall ensure that all appropriate corrective action is taken in respect of all the non-compliant batteries that the economic operator has made available on the market throughout the Union.
4. Where the relevant economic operator does not take adequate corrective action within the period referred to in paragraph 1, second subparagraph, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the non-compliant batteries being made available on their national market, to withdraw those batteries from that market or to recall them.
The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures.
5. The information referred to in paragraph 4, second subparagraph, shall include all available details, in particular the data necessary for the identification of the non-compliant battery, the origin of that battery, the nature of the non-compliance alleged and the risk involved, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. In particular, the market surveillance authorities shall indicate whether the non-compliance is due to any of the following:
(a)
failure of the battery to be in conformity with Articles 6 to 10 or Article 12, 13 or 14;
(b)
shortcomings in the harmonised standards referred to in Article 15;
(c)
shortcomings in the common specifications referred to in Article 16.
6. Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the battery concerned, and, in the event of disagreement with the adopted national measure, of their objections.
7. Where, within three months of receipt of the information referred to in paragraph 4, second subparagraph, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by market surveillance authorities, that measure shall be deemed justified.
8. Member States shall ensure that appropriate restrictive measures, such as withdrawal of the non-compliant battery from the market, are taken in respect of the non-compliant battery without delay.
Union safeguard procedure
1. Where, on completion of the procedure set out in Article 79(4), (6) and (7), objections are raised against a measure taken by market surveillance authorities, or where the Commission considers a national measure to be contrary to Union law, the Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measure. The Commission shall endeavour to conclude that evaluation within one month.
On the basis of the results of that evaluation, the Commission shall adopt an implementing act determining whether the national measure is justified or not. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 90(3).
2. The Commission shall address the implementing act referred to in paragraph 1, second subparagraph, to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.
If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non-compliant battery is withdrawn from their market, and shall inform the Commission accordingly.
If the national measure is considered unjustified, the Member State concerned shall withdraw that measure.
3. Where the national measure is considered justified and the non-compliance of the battery is attributed to shortcomings in the harmonised standards referred to in Article 15 of this Regulation, the Commission shall apply the procedure provided for in Article 11 of Regulation (EU) No 1025/2012.
4. Where the national measure is considered justified and the non-compliance of the battery is attributed to shortcomings in the common specifications referred to in Article 16, the Commission shall, without delay, adopt an implementing act amending or repealing the common specifications concerned. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 90(3).
Compliant batteries which present a risk
1. Where, having carried out an evaluation under Article 79(1), a Member State finds that although a battery is in compliance with Articles 6 to 10 and Articles 12, 13 and 14, it presents a risk to the human health or safety of persons, to the protection of property or to the environment (‘compliant battery which presents a risk’), it shall without delay require the relevant economic operator to take all appropriate measures, within a reasonable period prescribed by the market surveillance authorities and commensurate with the nature of the risk, to ensure that the compliant battery which presents a risk, when made available on the market, no longer presents that risk, to withdraw that battery from the market or to recall it.
2. The economic operator shall ensure that corrective action is taken in respect of all the compliant batteries which present a risk that the economic operator has made available on the market throughout the Union.
3. The Member State shall immediately inform the Commission and the other Member States where the situation referred to in paragraph 1 occurs. That information shall include all available details, in particular the data necessary for the identification of compliant batteries which present a risk, the origin and the supply chain of such batteries, the nature of the risk involved and the nature and duration of the national measures taken.
4. The Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measures taken. On the basis of the results of that evaluation, the Commission shall adopt an implementing act determining whether the national measure is justified or not and, where necessary, proposing appropriate measures. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 90(3).
5. On duly justified imperative grounds of urgency relating to the protection of human health and the safety of persons, and to the protection of property or the environment, the Commission shall adopt an immediately applicable implementing act in accordance with the procedure referred to in Article 90(4).
6. The Commission shall address the implementing act referred to in paragraphs 4 and 5 to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.
Joint activities
Market surveillance authorities may carry out joint activities with organisations representing economic operators or end-users. Such joint activities may include the setting up by Member States or market surveillance authorities of battery competence centres, with a view to promoting compliance, identifying non-compliance, raising awareness and providing guidance in relation to the requirements laid down in this Regulation, in accordance with Article 9 of Regulation (EU) 2019/1020.
Formal non-compliance
1. Without prejudice to Article 79, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the non-compliance concerned:
(a)
the CE marking has been affixed in violation of Article 30 of Regulation (EC) No 765/2008 or of Article 20 of this Regulation;
(b)
the CE marking has not been affixed;
(c)
the identification number of the notified body, where required under Annex VIII, has been affixed in violation of Article 20 or has not been affixed;
(d)
the EU declaration of conformity has not been drawn up or has not been drawn up correctly;
(e)
the technical documentation referred to in Annex VIII is either not available, or not complete;
(f)
the information referred to in Article 38(7) or Article 41(3) is absent, false or incomplete;
(g)
any other administrative requirement provided for in Article 38 or 41 has not been met;
2. Where the non-compliance referred to in paragraph 1 persists, the Member State concerned shall take all appropriate measures to restrict or prohibit the battery being made available on the market or ensure that it is withdrawn from the market or recalled.
Non-compliance with due diligence obligations
1. Where a Member State finds that an economic operator does not fulfil its due diligence obligations laid down in Articles 48, 49 and 50, it shall require the relevant economic operator to put an end to the non-compliance concerned.
2. Where the non-compliance referred to in paragraph 1 persists and where there is no other effective means available to put an end to the non-compliance, the Member State concerned shall take all appropriate measures to restrict or prohibit the batteries made available on the market by the economic operator referred to in paragraph 1 from being made available on the market and, if the non-compliance is serious, ensure that they are withdrawn from the market or recalled.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
