What is it called?
Regulation (EU) 2019/515 on the mutual recognition of goods (the "Mutual Recognition Regulation") is one part of the so-called "Goods Package" that was proposed by the European Commission in December 2017. The other part is Regulation (EU) 2019/1020 on market surveillance and compliance of products.
What is it about?
The principle of mutual recognition of goods stems from the Treaty on the Functioning of the European Union, one of the two main treaties that form the basis for EU law. It requires that any goods sold lawfully in one EU Member State can be sold lawfully in another (subject to limited exceptions for public safety, health and the environment), even if the goods do not fully comply with national requirements of the second Member State. This ensures market access for goods that are not, or are only partly, subject to EU harmonisation legislation. Goods subject to EU harmonisation legislation do not require mutual recognition – as they are subject to common rules across the EU.
Who and what does it apply to?
The Mutual Recognition Regulation applies to goods of any type that are "non-harmonised". The Mutual Recognition Regulation refers to economic operators including the producer, authorised representative, importer or distributor of such goods. It also sets out procedures for competent authorities in Member States and Product Contact Points.
Why does it matter?
The Mutual Recognition Regulation has applied from 19 April 2020 (replacing Regulation (EC) 764/2008). It seeks to improve the functioning of the mutual recognition principle by including:
- a voluntary "mutual recognition declaration", for businesses to demonstrate that their products are lawfully marketed in another EU Member State;
- an assessment procedure that Member State authorities must follow when assessing compliance of goods;
- a minimum level of reasoning that Member State authorities must give where they restrict or deny market access, so that their decision can be assessed for compatibility with the principles of mutual recognition and protection of legitimate public interests;
- a procedure that allows businesses to contest decisions by Member State authorities through the European Commission's SOLVIT network; and
- the establishment of "product contact points" in each EU Member State, which provide free advice to businesses on the interpretation and application of the mutual recognition regulation.
It is hoped that the new regulation will cut red tape and allow businesses to market and sell goods faster and more easily within the Internal Market. The emphasis on information sharing should make it easier for businesses to understand what is required of them to sell their products in another EU country, and hopefully make compliance more straightforward.
Businesses should consider whether to make use of the voluntary mutual recognition declaration. Businesses deciding not to make such a declaration can expect national authorities to make detailed requests for information to assess whether the goods should be allowed on the market.
The Mutual Recognition Regulation will continue to apply in the UK until at least 1 January 2021. As with many post-Brexit issues, the position the UK will take after that date is currently unclear. We should get more clarity as the Free Trade Agreement negotiations progress.
Where can I find it?
The Mutual Recognition Regulation can be found here.
Is there any guidance?
There is currently no guidance available, but you can find the template voluntary mutual recognition declaration here. The European Commission is due to give guidance on the concept of "legitimate public interests".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.