Article 54(2) of the MDR lays down three criteria that exempt devices from the premarket clinical evaluation consultation procedure with the involvement of expert panels. In particular that article states that:
“The procedure referred to in paragraph 1 shall not be required for the devices
referred to therein:
(a) in the case of renewal of a certificate issued under this Regulation;
(b) where the device has been designed by modifying a device already marketed by
the same manufacturer for the same intended purpose, provided that the
manufacturer has demonstrated to the satisfaction of the notified body that the modifications do not adversely affect the benefit-risk ratio of the device; or
(c) where the principles of the clinical evaluation of the device type or category have
been addressed in a CS referred to in Article 9 and the notified body confirms that the
clinical evaluation of the manufacturer for this device is in compliance with the
relevant CS for clinical evaluation of that kind of device”.
Interpretation of point (b) of Article 54(2) is unclear, notably in relation to the
application of the word “marketed”. In fact, while in point “a” the co-legislator explicitly indicates that the certificates referred to are those issued under the new Regulation, in point “b” there is no indication of whether a “device already marketed” refers to devices already marketed under the Directives or the Regulations.
This has raised questions from the public and from Member States.
As we are about to launch the procedures for the establishment of expert panels,
clarification of this issue is extremely urgent, notably due to its impact on the future
workload of panels and hence on relevant budget and workload estimations.
The following considerations seem to indicate that the expression “device already
marketed” cannot be intended to refer to a device already marketed uniquely under
the new Regulation…