Mutual Recognition an ongoing drama!

22nd December 2017

The principle of mutual recognition (MR) requires that a good that is lawfully marketed in one Member State should not be prohibited in another Member State, unless the latter has sound reasons (consumer protection) for banning or restricting its sale. 

Mutual recognition applies to products not subject to Union harmonisation legislation or only partly covered by it, example maximum permitted levels in food supplements (Dir 2002/46) are not harmonised. Important as 35% of all goods traded in the EU fall under non or only partially harmonised rules.

In 2015 an evaluation of the application of MR was carried out and concluded that, "mutual recognition is not functioning as it should and that the principle and the Regulation had limited effects in meeting the foreseen objectives in terms of raising awareness and of increasing legal certainty and administrative cooperation."

In this new legislative proposal (COM (2017) 796 final) a number of initiatives are being suggested to enhance the effectiveness of MR and these include:

  • clarifying scope and when MR can be applied.
  • self-declaration of MR i.e. business declaring lawfully for sale
  • Introduction of IT to facilitate functioning of MR across borders and between national authorities. 

A significant concern is that the new proposal (2017/0354(COD)), Article 8 suggests if the GO TO route before you bring a complaint over incorrect application of MR. The result can be a slowing of effective implementation and increasing harm done to the company which may have had its goods restricted for sale. Only after SOLVIT then refers the issue to the Commission are we given a 3 month framework for the Commission to enter into talks with the relevant economic operator / competent authorities that are restricting free sale of goods. 

This is a major concern as most FBOs find SOLVIT as not an effective tool for settling infringements despite a recommendation of its function from the commission (2013/461/EU).

This new Regulation shall apply from 1st Jan 2020.


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