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Obligations and authorisations of economic operators related to the import of toys

In view of the emerging questions and uncertainties concerning the obligations and authorisations for certain activities related to the import of toys and their placing and supply on the market, as far as individual operators are concerned, we present the opinion of the ÚNMZ on this issue. Problems may arise, for example, in a situation where a Czech importer is interested in placing a toy on the EU market from a non-EU manufacturer but is not "sufficiently cooperative" with respect to ensuring its obligations before placing the toy on the EU market.

According to Government Regulation No. 86/2011 Coll. on technical requirements for toys, only the manufacturer or its authorised representative may apply for EC type-examination. The importer or distributor, if they are not also the manufacturer's authorised representative, cannot, inter alia, request an EC type-examination, issue an EC declaration of conformity or affix the CE marking to the toy.

If we look at the obligations of importers as described in more detail on pages 130 to 132 of the Explanatory Notes (in the Czech version - http://ec.europa.eu/enterprise/sectors/toys/documents/guidance/index_en.htm), it basically describes, among other things, that importers have to verify that the conformity assessment procedures have been carried out by the toy manufacturer, that the relevant documents have been issued and that warnings and other mandatory information have been added. Furthermore, importers must ensure that for a specified period of time (10 years after the toy has been placed on the market) they are able to ensure that the technical documentation from the manufacturer is made available to the supervisory authorities upon request (see Article 6(4) of the General Regulation No 86/2011 Coll.). Importers must keep a copy of the EC Declaration of Conformity for the specified period in any case.

As for § 13(8) 22/1997 Coll., its wording cannot be understood as meaning that if the manufacturer fails to fulfil the obligations given to him, anyone else who supplies the product to the market can, or must, fulfil them. The provision states that in such a case, compliance must be ensured (but not performed) by the person who is the last to supply the specified product to the market. For example, if an importer discovers that the manufacturer or his authorised representative has not issued an EC declaration of conformity for a toy, he must not place the toy on the market (if the distributor discovers this, he must not continue to supply the toy) until he has ensured that the manufacturer or his authorised representative has issued such a declaration.

In view of the above, it can be concluded that if an importer wants to import and place on the EU market toys from a non-EU manufacturer, the following options exist:

  1. The importer shall negotiate with the manufacturer to supply only a toy that meets the requirements of the National Decree No. 86/2011 Coll., i.e., in particular with the conformity assessment and toy measures specified in the warnings, other mandatory data and CE marking and the issued EC declaration of conformity;
  2. The importer shall negotiate with the manufacturer a power of attorney for the activities for which this is permitted by the NV No. 86/2011 Coll. and which the manufacturer authorises him to carry out. The importer shall thus also become an authorised representative within the meaning of Section 2(f) of Act No 22/1997 Coll. It is essential that this authorisation meets the requirements of that section of the Act and of NV No 86/2011 Coll;
  3. The importer shall place the toy on the market under its name or trademark and shall thus be considered the manufacturer and shall therefore fulfil all the obligations of the manufacturer (the importer shall also be considered the manufacturer if it modifies a toy that has already been placed on the market in such a way that may affect its compliance with the requirements of Regulation No 86/2011 Coll.). In doing so, the importer should, inter alia, secure the necessary documentation from the original manufacturer in order to be able to collect the documentation to the extent required by NV No 86/2011.

The above text does not take into account the obligations for placing toys on the market under other regulations.

Ing. Michal Novák

  1. 2. 2012