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With a little more than a month to go till the date of application of the MDR, the industry is understandably concerned about the readiness of the system. However, another deadline is looming, as the five-year transition period of the IVDR is almost over, with the date of application of the IVDR only one year away. The IVDR introduces the requirement for all products falling into a higher risk class than A to be certified by a notified body. This applies particularly to a large number of products that manufacturers have been able to place on the market without the involvement of a notified body. Only a small portion of IVDs will benefit from the grace period the IVDR grants viz. the few that were already required to be certified by a notified body under the Directive.

The MDCG has only published two documents on the IVDR implementation so far, the latest discussing the transitional provisions for certification of class D in vitro diagnostic medical devices.

In addition to applying to a notified body, some class D applications must be reviewed by an expert panel and/or tested by an EU reference laboratory (EURL). The latest MDCG document outlines how the provisions of the IVDR can be applied during the transition period, which means before the date of application on 26 May 2022. It states that in the absence of the required expert panel and/or EURL:

  • notified bodies may not issue a certificate before the expert panel is operational and, for the devices that require consultation of the panel, before the panel has provided its views;
  • if no EU reference laboratory (EURL) is designated for the device in question, the expert panel should provide its views within 60 days;
  • the notified body and manufacturer should follow the EURL-related provisions on sample or batch testing from the time that the EURL becomes operational;
  • the notified body should follow the EURL-related provisions for performance verification at the time of the re-certification.

An amendment to the Medical Devices Ordinance (MedDO) has been prepared, which will come into force on 26 May 2021 if the Mutual Recognition Agreement (MRA) between Switzerland and the European Union (EU) has not been updated by that date. This amendment is referred to as the Eventual-MepV (Contingency MedDo), but the explicit content is not publicly available yet. As the clock is relentlessly ticking towards 26 May 2021, Swiss Medtech has been able to share some relevant information for the industry to prepare for the regulatory requirements the amendment introduces:

Swiss Authorised Representative: The Eventual-MepV provides for transitional periods for the appointment of a Swiss authorized representative, including corresponding labelling:

  • Until 31 December 2021 for Class III devices, Class IIb implantable devices, and all active implantable devices.
  • Until 31 March 2022 for non-implantable Class IIb devices and Class IIa devices.
  • Until 31 July 2022 for Class I devices, systems, and procedure packs.

Access to the technical documentation: Access to the technical documentation may be provided by keeping a copy available on the authorized representative’s premises or by a contractually guaranteed assurance that delivery will occur within seven days at Swissmedic’s request.

Registration obligations: In the absence of Eudamed, registration obligations will be fulfilled by submitting information to Swissmedic. Economic operators who have already placed devices on the market before 26 May 2021 following the MDR and IVDR must complete the registrations by 26 November 2021.

Summary of Safety and Clinical Performance (SSCP): The validated SSCP is not uploaded by the Notified Body in Eudamed but has to be made publicly available by the manufacturer - for example, on its website.

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The latest announcement of the European Commission aims to alleviate some of the legal uncertainty surrounding EU market access of Swiss medical devices after the date of application of the MDR in May 2021. To mitigate supply disruptions on the EU market, the EU proposes a limited modification to the current Mutual Recognition Agreement, which would grant certificates issued by a Swiss NB the same grace period the MDR grants to certificates issued in the EU.

Once accepted by both parties, this amendment could enter into force on 26 May 2021. The detailed wording of the amendment is not known yet, and the impact has to be analysed once the amendment is available. But the EU Commission emphasizes that this amendment does not include new certificates issued under the MDR. The MRA will only be updated to include the MDR once substantial progress is made on the Swiss side towards signing the Institutional Framework Agreement.

This proposed amendment to the MRA does not change the condition that third country requirements will apply as of 26 May 2021. Swiss manufacturers should continue their preparation to comply with third country requirements for products to be placed on the EU market, namely appoint an authorized representative in the EU or EEA and accordingly adapt the labelling of the products.

In a recently published guidance document, the MDCG aims to provide guidance to the Member States on handling certain MDR provisions applicable as of May 2021, even though Eudamed is not fully functional. To comply with the current Directives, legal manufacturers and authorised representatives of CE-marked medical devices have to register in the EU country where they have their place of business. The transitional provisions of the MDR state that if Eudamed is not fully functional on the date of application, the corresponding provisions of Directives 90/385/EEC and 93/42/EEC continue to apply. The MDR introduces a much larger Eudamed database than the one that currently exists under the Directives alongside a variety of new registration requirements regarding stakeholders and data exchange and a publicly accessible version to increase transparency. MDCG 2021-1 includes information on how to addresses cases where the exchange of information would be difficult, based on the corresponding provisions of the Directives.

Eudamed is composed of the following six interconnected modules:

  • Actors registration
  • UDI/Devices registration
  • Notified Bodies and Certificates
  • Clinical Investigations and performance studies
  • Vigilance and post-market surveillance
  • Market Surveillance

With the MDR fully applying on 26 May 2021, the actor registration module is the only and first of the Eudamed modules currently available. The European Commission launched the Eudamed actor registration module on a voluntary basis on 1 December 2020. This allows competent authorities to assign SRNs (single registration numbers) to each economic operator, which is a precursor to device registration (and plays a role in the documentation of a medical device under MDR). Device registration in Eudamed will not be possible until the UDI/Device Registration module goes live.

When launching the first module, the Commission made clear that it is not in the position to enforce the use of the actor registration module, but asked EU competent authorities to promote the registration process in Eudamed and avoid double registration at a national level. Owing to each country's need to maintain an oversight of the manufacturers on its market, some countries will extend national manufacturer registration to CE-marked products under the MDR and manufacturers, and authorised representatives are subject to double registration if they choose to make use of the available module.

The new MDCG guidance aims to provide a harmonised approach by outlining administrative practices and alternative technical solutions to exchange information until the database is ready. MDCG 2021-1 shows in tabular form how individual specifications in the MDR are to be implemented in the period until Eudamed is available. The document suggests that as soon as a functionality corresponding to a requirement is available in Eudamed, the system may be used even before the notice of full functionality of Eudamed has been published. It also includes relevant information on how to deal with regulatory requirements having no corresponding provision in the Directives, such as:

  • Making publicly available of the summary of safety and clinical performance (SSCP):The SSCP shall be made available to the public upon request without undue delay or the manufacturer shall specify where it is made available to the public.
  • Data exchange between notified bodies and expert panels during clinical evaluation consultation procedure: Notified bodies should notify the relevant parties by uploading the required information to a dedicated secure directory in CircaBC, using a pre-defined template as soon as it becomes available (organised by the Commission).
  • Periodic safety update report (PSUR): For class III devices and for classes IIa, and IIb implantable devices, manufacturers should deliver the PSURs to the relevant notified bodies by appropriate means. Notified bodies should provide the PSURs evaluations to the manufacturers and make them available upon request to the competent authority.