The principle of free movement of goods is set out in the Treaty on the Functioning of the European Union (TFEU) and is directly applicable in all Member States. It obliges Member States to accept products lawfully marketed in another Member State and which are not subject to Union harmonisation unless very specific conditions are met. This means that certain national technical barriers may be justified, while others may not.
The principle of mutual recognition
In intra-EU trade in goods, mutual recognition is the principle that a product lawfully marketed in one Member State and not subject to Union harmonisation should be allowed to be marketed in any other Member State, even when the product does not fully comply with the technical rules of the Member State of destination.
There is one exception to this principle: the Member State of destination may refuse the marketing of a product in its current form only where it can show that this is strictly necessary for the protection of, for example, public safety, health or environment. In that case, the Member State of destination must also demonstrate that its measure is the least trade-restrictive measure.
The mutual recognition principle, not to be mistaken for mutual recognition agreements, is a main driver for facilitating the market access in other Member States.
How should it work in practice?
To make the mutual recognition principle fully operational, the European Parliament and the Council adopted Regulation (EC) No 764/2008 . (This Regulation applies from 13 May 2009.)
It defines the rights and obligations of, on the one hand, national authorities and, on the other, enterprises wishing to sell in a Member State products lawfully marketed in another Member State, when the competent authorities intend to take restrictive measures about the product in accordance with national technical rules. In particular, the Regulation concentrates on the burden of proof by setting out the procedural requirements for denying mutual recognition.
The product contact points and the product list
The Regulation also reduces the risk for enterprises that their products will not get access to the market of the Member State of destination by establishing one or several "product contact points" in each Member State (Art. 9(2)). A list with the contact details of these product contact points must be made available through a website.
Additionally Article 12(4) of the Regulation specifies that the "Commission shall draw up, publish and regularly update an indicative and non-exhaustive list of products which are not subject to Community harmonisation legislation". This list must also be made accessible through a website open to economic operators and the "product contact points".
These two sets of information can now be consulted through this online service Database on Article 12(4).
The following indicative, non binding guidance documents have been adopted to ease the application of the Regulation within certain specific sectors:
- The relationship between the Mutual Recognition Regulation and Directive 98/34/EC
- The application of the Mutual Recognition Regulation to articles of precious metals
- The relationship between the Mutual Recognition Regulation and Directive 2001/95/EC
- The application of the Mutual Recognition Regulation to food supplements
- The application of the Mutual Recognition Regulation to narcotic drugs and psychotropic substances
- The application of the Mutual Recognition Regulation to prior authorisation procedures
- The application of the Mutual Recognition Regulation to weapons and firearms
- The application of the Mutual Recognition Regulation to fertilisers and growing media
- The application of the Mutual Recognition Regulation to non-CE-marked construction products
- The concept of ‘lawfully marketed ’ in the Mutual Recognition Regulation
Report of the Commission
First report on the application of Regulation (EC) No 764/2008 - COM(2012) 292 final