Table of Contents
What is the principle of mutual recognition?
The free movement of goods within the European internal market is a fundamental principle of the Treaty on the Functioning of the European Union (TFEU). 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. This principle is therefore an essential complement to the harmonisation of rules at EU level in order to contribute to this free movement of goods.
Mutual recognition of goods is applicable to goods or certain aspects of goods which are not covered by the EU's harmonisation legislation. These goods may then be subject to the national technical rules of the Member States. When lawfully marketed in one Member State, these goods are considered compatible with the national technical rules of the other Member States. They may therefore also be marketed there.
For goods to be considered as lawfully marketed in a Member State of origin, they must comply with the relevant technical rules that apply in this Member State and be made available to end users.
However, the principle of mutual recognition of goods is not absolute. Member States may temporarily suspend, restrict or even prohibit the marketing of goods which have been lawfully marketed in another Member State. Nevertheless, such restrictions must be justified and proportionate to the intended legitimate public interest objective, such as the protection of the health and safety of persons.
These administrative decisions must be notified by the Member State to the economic operator and to the European Commission and other Member States through the European Information and Communication System on Market Surveillance (ICSMS) platform.
What is the purpose and scope of the Regulation (EU) 2019/515?
The principle of mutual recognition stems from the Cassis de Dijon ruling of the Court of Justice of the European Union and its scope and content are defined in Articles 34 to 36 of the TFEU. Regulation (EU) 2019/515 on the mutual recognition of goods lawfully marketed in another Member State aims to strengthen the functioning of the European internal market by improving the application of the principle of mutual recognition and by removing unjustified barriers to trade. It came into force on 19 April 2020 and replaces Regulation 764/2008/EC.
Regulation (EU) 2019/515 aims to improve legal certainty for businesses and national authorities by clarifying when exactly the principle of mutual recognition can be used. It also allows for the use of a voluntary declaration of mutual recognition to make it easier to demonstrate that a good has been lawfully placed on the market. In addition, it establishes SOLVIT, a free out-of-court problem-solving mechanism offered by the national authorities of each Member State to find solutions for individuals and businesses whose rights have been violated by the public authorities of another Member State.
Regulation (EU) 2019/515 also provides for closer administrative cooperation between Member States and a common IT tool enhancing communication, collaboration and trust between national authorities, with the aim to ultimately facilitate the functioning of the principle of mutual recognition of goods. The scope of the Regulation covers two different aspects:
- firstly, goods lawfully marketed in another Member State. The covered goods are of any type, including agricultural products,
- secondly, administrative decisions that have been taken or will be taken by a competent authority of a Member State of destination on such goods.
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 shall also provide contact details to contact the competent authorities in one’s Member State, including the authorities responsible for overseeing the implementation of the national technical rules applicable in the concerned territory.
Under Regulation (EU) 2019/1020, the Product Contact Point is since 16 July 2021 also responsible for providing economic operators with free information on the national transposition and implementation of EU harmonisation legislation applicable to products.
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:
Please select "product specifications" as domain in the form.
How are goods assessed (Article 5)?
Where a competent authority of the Member State of destination intends to assess goods subject to Regulation (EU) 2019/515 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 set out in Article 5 of the Regulation, 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. This declaration facilitates the assessment procedure as the economic operator provides the information necessary for the authority of the Member State of destination for its assessment.
The economic operator shall be allowed to make the goods available on the market of the Member State of destination 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 taken into account 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 the Member State of origin.
If a mutual recognition declaration is not supplied to a competent authority of the Member State of destination carrying out the assessment, the competent authority may then request the economic operators concerned to provide documentation and information that is necessary for the 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 itself or via its own product contact point contact the competent authorities or the Product Contact Points of the Member State of origin in which an economic operator claims to have lawfully marketed its goods, if the competent authority needs to verify any information provided by the economic operator.
Once the assessment completed, and 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:
- SOLVIT, a free out-of-court problem-solving mechanism, which aims to find solutions for individuals and businesses whose rights have been violated by public authorities in another Member State
- 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.
- The federal Mediator
Guidance document for the application of 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