What is the principle of mutual recognition?
The free movement of goods or aspects of goods not fully covered by the harmonisation rules is ensured by the application of the principle of mutual recognition.
Member States may not prohibit the sale in their territory of goods lawfully marketed in another Member State, even if such goods have been produced in accordance with other technical rules.
However, the principle of mutual recognition is not absolute. Member States may impose restrictions on the marketing of goods lawfully marketed in another Member State if such restrictions are justified and proportionate to the objective pursued.
What is the purpose and scope of the Regulation (EU) 2019/515?
Since 19 April 2020, the Regulation (EU) 2019/515 on the mutual recognition of goods lawfully marketed in another Member State has applied. This regulation repeals the previous regulation 764/2008/EC. Regulation (EU) 2019/515 aims to strengthen the functioning of the internal market by improving the application of the principle of mutual recognition and by removing unjustified barriers to trade.
Firstly, it aims to improve legal certainty for businesses and national authorities by clarifying when exactly the principle of mutual recognition can be used.
Secondly, by using the voluntary mutual recognition declaration, a company can more easily prove that a good has been lawfully placed on the market. The problem-solving procedure that builds on SOLVIT* to take decisions restricting or denying market access provides legal certainty for businesses and national authorities. Both businesses and national authorities know what they can reasonably expect when mutual recognition is being or should be applied.
*SOLVIT is a service offered by the national authorities in each Member State aimed at finding solutions for individuals and businesses when their EU rights are infringed by the national authorities of another Member State.
Finally, closer administrative cooperation and a common IT tool strengthen communication, cooperation and trust between national authorities and thus facilitate the functioning of the principle of mutual recognition.
The scope of the Regulation covers two different aspects:
- firstly, goods lawfully marketed in another Member State, and
- secondly, administrative decisions that have been taken or will be taken by a competent authority of a Member State of destination concerning such goods.
The scope covers goods of all kinds, including agricultural products.
What is the role of the Product Contact Point (PCP)?
The Product Contact Point provides, free of charge, any useful information at the request of the economic operator or the competent authority of another Member State,
- such as an electronic copy or online access to national technical rules and national administrative procedures applicable to specific goods or to a specific type of goods in the territory where the Product Contact Points are based;
- information as to whether national legislation requires prior authorisation for those goods or goods of that type.
The Product Contact Point responds to requests within 15 working days. If this cannot be met, the applicant will be informed.
The Product Contact Point can be reached by:
- email: email@example.com (please mention “PCP Mutual Recognition” in the subject line of your email)
- telephone: +32 2 277 53 36
How are goods assessed (Article 5)?
Where a competent authority of the Member State of destination intends to assess goods subject to this Regulation to establish whether the goods or goods of that type are lawfully marketed in another Member State, it shall contact the economic operator concerned without delay.
The competent authority shall inform the economic operator of the assessment, indicating the goods that are subject to that assessment and specifying the applicable national technical rule or prior authorisation procedure. The competent authority shall also inform the economic operator of the possibility of supplying a mutual recognition declaration.
The economic operator shall be allowed to make the goods available on the market while the competent authority carries out the assessment, unless the economic operator receives an administrative decision restricting or denying market access for those goods. This shall not apply where the assessment is carried out in the framework of a prior authorisation procedure, or where the competent authority temporarily suspends the making available on the market of the goods in accordance with Article 6.
If a mutual recognition declaration is supplied by an economic operator to a competent authority of the Member State of destination:
- the mutual recognition declaration, together with supporting evidence, shall be accepted by the competent authority, and
- the competent authority shall not require any other information or documentation from any economic operator for the purpose of demonstrating that the goods are lawfully marketed in another Member State.
If a mutual recognition declaration is not supplied to a competent authority of the Member State of destination, then the competent authority may request the economic operators concerned to provide documentation and information that is necessary for that assessment.
The economic operator shall be allowed at least 15 working days following the request of the competent authority of the Member State of destination, in which to submit the documents and information, or to submit any arguments or comments that the economic operator might have.
The competent authority of the Member State of destination may contact the competent authorities or the Product Contact Points of the Member State in which an economic operator claims to be lawfully marketing its goods, if the competent authority needs to verify any information provided by the economic operator.
Where the competent authority of a Member State of destination takes an administrative decision with respect to the goods that it has assessed, it shall notify that administrative decision without delay to the economic operator. The competent authority shall also notify that administrative decision to the Commission and to the other Member States no later than 20 working days after it took the decision, via the “Information and Communication System on Market Surveillance” (ICSMS).
What happens if a dispute arises?
If a dispute arises between the competent authority and an economic operator, the following remedies and procedures may be invoked:
- Jurisdictional appeal to the courts of the judiciary (courts and tribunals), to an administrative court, to an extrajudicial court or even to a body of the active board that exercises judicial power and whose decision has the authority of res judicata.
- Administrative appeal to the competent authority or supervisory authority where provided for in the regulations concerned.
- Solvit (cfr. Article 8 Problem-solving procedure).
- Mediation service.