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Legal remedies against incorrect/incomplete RAPEX notifications

An economic operator whose rights are adversely affected by an incomplete RAPEX notification may request the competent authorities of the notifying member state to complete the notification. To this end, he must have a legal remedy in the notifying member state to ensure that the obligations incumbent on that member state in this respect are complied with. This was recently decided by the ECJ (judgment 17  May 2023 - C-626/21).

The facts of the case

The judgment is based on the following facts: After the Austrian market surveillance authorities found unsafe pyrotechnic articles at a distributor, they imposed a sales ban on the distributor and ordered their recall. Subsequently, the Austrian authorities submitted three incomplete notifications on these articles to the European Commission via the national RAPEX Contact Point. The importer of the products, located in Poland, unsuccessfully requestedthe RAPEX notification to be supplemented by adding the batch numbers of the articles in question and to inspect the files.. The administrative court confirmed the rejection of the authority's decision. It found that a RAPEX notification to the commission is a material  act. It also stated that judicial protection is in principle be safeguarded by the fact that the administrative act on which the RAPEX notification procedure is based can be challenged before the administrative courts. In addition, neither Austrian law nor the RAPEX Guidelines provide that an economic operator has a right to submit a request asking for a RAPEX notification to be supplemented or a request for access to documents relating to that procedure. The ECJ now clarified that an adversely affected economic operator has a right to request that the competent authorities of a Member State supplement a RAPEX notifications under EU law.

The merits of the decision

The ECJ ruled that economic operators such as importers of a product, that are subject to a RAPEX notification may be harmed by an incomplete notification. The latter would need to be able to challenge such notification before the competent national authorities and, where appropriate, to bring proceedings before the competent national courts if they consider that the relevant provisions of Union law had been infringed. Therefore, the rules applicable to RAPEX must be interpreted in accordance with the right to an effective remedy under Article 47(1) of the Charter of Fundamental Rights of the European Union. Therefore, an economic operator, such as an importer of the products referred to in the notification, who is not the addressee of the measure on which that notification is based on but whose interests are affected by the incompleteness of the notification, must have a remedy available in the notifying member state.


The European rapid alert systems RASFF (Rapid Alert System for Food and Feed) and RAPEX (Rapid Exchange of Information System) are a Europe-wide communication system for authorities, which serves a rapid exchange of information between the Member States in case of an initial risk to the health of consumers.

Both rapid alert systems are based on an essentially three-stage procedure. The competent authorities of a member state, if the conditions are met and, in particular, a market-related measure has been adopted, notify the commission of these measures via the national Contact Points (notification stage). The commission verifies this notification and then forwards it to the Member States, with the remainder being published (validation and dissemination stage). Upon receipt of a RAPEX/RASFF notification, Member States review the information provided and take appropriate measure, which they also notify to the commission (follow-up stage).

Once triggered, rapid alert notifications and their publications are difficult to remove. No action can be taken against the commission for a published rapid alert, its forwarding, or the failure to forward it. Since the commission's measures are to be classified as purely material actions without legal effect, an action for annulment is not possible. Moreover, the European Commission does not bear any responsibility of its own for the information transmitted via the RAPEX application. Rather, this responsibility remains with the notifying member state, as the ECJ confirmed in its ruling.

The ECJ ruling has now decisively strengthened the position of economic operators in the nationally conducted proceedings to be able to defend themselves against incomplete notifications and thus probably also unjustified notifications, even if they are not the addressee of the measure underlying the rapid alert. The Münster Administrative Court has already ruled in this direction in its judgment of 13 November 2019 - 9 K 2514/16 (not legally binding). It ruled in favour of a manufacturer/importer that by way of a general consequence removal claim market surveillance authority can be compelled to lodge an application for the removal of a RAPEX notification with the European Commission in accordance with the requirements of the RAPEX Guidelines.

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