The Mutual Recognition Principle – Has the Commission fixed it?

The free movement of goods is one of the cornerstones of the EU Single Market and is one of the EU’s biggest selling points. Mutual recognition is a vital part of that system as it allows products lawfully sold in one EU country to be sold in another when there are no harmonised rules in place governing these products at the EU level. This means business operators can market their products in other Member States even if these do not comply with the technical requirements of that country.

However, structural weaknesses with the mutual recognition principle remain, as businesses continue to face obstacles when trying to market their products in other Member States. Recognising these issues, the European Commission recently published a legislative proposal to address the problems. But what solutions does the Commission propose and will those really help businesses?

Previously the Commission had already tried to tackle issues related to mutual recognition through Regulation (EC) No 764/2008, which laid down procedures on how national authorities should apply national technical rules to products lawfully marketed in another Member State. This included the creation of product contact points that provide businesses with information on how their products can be marketed in a country as well as the creation of the SOLVIT service, an online free dispute resolution mechanism businesses can use to contest authorities’ decision to reject their products.

However, despite the Commission’s efforts, many business operators still experience severe problems when trying to trade under the mutual recognition principle. In relation to food products, many laws governing food safety derive from Brussels and are, therefore, harmonised and not subject to mutual recognition. However, national divergences are still in place in the case of, for example, food supplements. Food companies should be able to trade these products freely under the mutual recognition principle, but face restrictions from many Member States that place administrative burdens and costs on companies on grounds of public health concerns.

To address this, the Commission has now proposed replacing the Regulation (EC) No 764/2008 with a new Regulation that clarifies and simplifies the procedures to be followed by businesses and public administrations. This Regulation clarifies the scope of mutual recognition to clarify when it is applicable. It also introduces a new mutual recognition declaration that will make it easier for businesses to demonstrate that their product is already lawfully sold in another EU country and also enhances the SOLVIT mechanism. Additionally, the Commission proposes putting in place an IT tool where authorities can notify their decision to reject market access and explain their reasoning for doing so, enhancing communication among these authorities.

While these changes are positive and will hopefully tackle some problems that food businesses have faced over the years, the proposal does still leave room for Member States to reject foods at their border because they consider them unsafe. In the case of food supplements, this could mean Member States can prohibit the marketing of the products that contain higher levels of vitamins and minerals than its national authority deems safe, even if other EU food safety authorities find no health concerns with these levels. This is increasingly likely to happen now multiple Member States are in the process of setting their own maximum permitted levels for food supplements, which – without EU intervention – will in future differ from country to country.

With clearly some room for improvement, the proposal will now move to the European Parliament and Council of the EU for scrutiny. This will provide stakeholders with the perfect opportunity to feed into the legislative process, making sure policy-makers are aware of all the issues related to mutual recognition and providing them with workable solutions on how to improve it in future.