NEW REGULATION REINFORCES THE MUTUAL RECOGNITION PRINCIPLE / by Nikolaas Tilkin-Franssens

The new regulation on the mutual recognition of goods lawfully marketed in another Member State (Regulation 2019/515) has been published introducing several measures to strengthen the application of the fundamental EU principle. The concept of mutual recognition derives from European Union case law in the application of the free movement of goods embedded in the European Treaties. It essentially requires EU member states to guarantee the introduction of goods which have been lawfully marketed in another member state. In case a member state restricts the market access it needs to clearly justify why market access has been restricted.

The new Regulation, replacing former Regulation 764/2008, elaborates on the technical application of the above principle in order to minimise unlawful EU barriers to trade. It establishes a set of rules and procedures to guarantee the appropriate application of the mutual recognition principle. Different from the preceding Regulation, it introduces the Mutual Recognition Declaration. This concerns a self-voluntary declaration which can be used to demonstrate the lawful marketing of goods in a member state to the authorities of another member state. The structure and content of the mutual recognition declaration is further established in the Annex of Regulation 2019/515. Further, the Regulation determines the procedure by which a member state can assess whether goods have been legally marketed in another member state. Important to note is that the economic operator retains his right to market the goods during the assessment. Only where the goods pose a serious risk to safety or health of persons or to the environment or similar goods are generally prohibited on grounds of public morality or public security the member state of destination may temporary suspend the entry of the concerned goods. In such case the competent authority needs to notify the economic operator as well as the European Commission and the other member states. In its assessment the competent authority shall take account of the mutual recognition declaration, if available. Following the assessment, the competent authority shall notify and duly justify its administrative decision. It shall provide for the remedies and procedures available under its national law and a reference to the SOLVIT procedure. SOLVIT is an alternative, non-judicial mechanism to settle disputes between individuals or business and member states regarding the application of EU law. In case an administrative matter limiting the free movement rights of an economic operator is brought before a SOLVIT centre, the European Commission will provide an opinion on whether the administrative decision is compatible with the principle of mutual recognition. Lastly, the new mutual recognition Regulation aims to raise awareness of the free movement principles and promote the exchange of information through Product Contact Points in the different member states. Regulation 2019/515 will enter into force on 18 April 2019 and apply from 19 April 2020.

Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 - link