Mutual recognition in goods. On promises and disillusions

Abstract Mutual recognition (MR) is rightly applauded as an ingenious innovation. Nevertheless, it is very demanding in actual practice. The article addresses the pros and cons of MR in EU goods markets and seeks to find effective remedies to be applied by the authorities and, to some extent, by business. MR is a demanding form of ‘governance’. Not only should judicial MR be distinguished from regulatory MR, but MR is best understood when placed in a context of alternative ways of accomplishing free movement in the internal market. A critical distinction in the regime consists in the way existing barriers to free movement are tackled as against potential barriers caused by new legislation in member states. At the same time MR is associated with many substantial benefits and costs, in particular for judicial MR. The article explores several routes which would result in more and better MR. Keywords: Free movementgovernanceharmonizationmutual recognitionrisk regulation ACKNOWLEDGEMENTS I would like to thank Susanne Schmidt for her helpful comments on earlier drafts of this article. Notes 1 For more elaborate treatment, see the contributions by, respectively, Mattera, Weiler and Pelkmans in Kostoris Padoa Schioppa Citation(2005), all mainly referring to goods markets. See also Pelkmans et al. Citation(2000). 2 The notion of SHEC is a simplification but it catches the large bulk of regulatory issues related to MR. In art. 30, EC the key references are to health and safety and possibly elements of environmental policy. As far as the ‘rule of reason’ case law of art. 28, EC is concerned, it underpins environmental and consumer protection. In addition, some other justifications can be found here, all of marginal importance. For legal analysis, see, for example, Barnard Citation(2004), chapters 6 and 18, as well as Weiler Citation(2005). 3 For details, see for example, Atkins Citation(1997), also Pelkmans Citation(1987) for the many drawbacks of the Old Approach. A good example is tractor safety regulation. There are 23 tractor directives. 4 See, for instance, directive 94/9/EC on equipment and protective systems intended for use in explosive atmospheres (ATEX dir.) or the entire debate on detailed testing requirements for some 30,000 long known chemicals in the framework of REACH; see Pelkmans Citation(2005b). 5 A typical case being the toys directive 88/378/EEC. An extremely broad application is the machines directive 98/37/EC, covering more than 40,000 types of ‘machines’. 6 Indeed, often for the European Economic Area (EEA) – the EU plus Norway, Liechtenstein and Iceland – and even wider. 7 This is referred to as the ‘presumption’ of compliance. 8 Or from other EEA countries or Turkey, the latter because of the ‘deep’ customs union with the EU 25. 9 Of course, the New Approach is also subject to further improvements. See COM (2003) 240 of 7 May 2003 and the suggestions in the twentieth anniversary conference of the New Approach, 30 November 2005, at 10 The Commission's interpretative communication on the practical application of MR, 2003/C 265 of 4 November 2003. It specifies, furthermore, undue translation requirements, no duplication of tests, recognition of testing and certification based on EN 45,000 standards of quality and independence, and no additional tests not required for domestic companies. 11 A famous example is the Beer Purity Law in Germany where the ECJ held that the pursuit of consumer protection should be conducted with measures such as labelling rather than an import ban. Case 274/87 Commission vs. Germany, 1989 ECR 229. 12 It is possible, though rare, that national regulations are drafted for SHEC objectives where approximation failed, say, because of a split in the Council or because of extreme uncertainty in science, hence risk assessment. In such instances, MR would also fail because of a lack of equivalence. One such case is that of so-called ‘fortified foods’, where sharp differences between the member states and at times contrasting views by scholars pre-empted Commission proposals. See Atkins Citation(1997), chapter 17, for details. After a struggle lasting decades, the Commission proposed a partial remedy in COM (2003) 424 of 16 July 2003 on nutrition and health claims made for foods. In May 2006 the draft was in its second reading and likely to be adopted. 13 The EU standards bodies are CEN, CENELEC and ETSI. See , and . 14 World standards are written by the International Organization Standarlization (ISO) and the International Electrotechnical Committee (IEC) and for telecoms by a special committee of the International Telecommunication Union (ITU). All three European bodies have formal agreements with the world bodies about procedures which facilitate the fullest possible use of world standards (where they exist; for goods, rather than processes, testing or for information, world standards are often absent) as European standards. 15 Member states and the Commission can give observations (also called ‘comments’), besides so-called ‘detailed opinions’, which reflect serious concerns about prospective barriers. Both are included in Figure 2. If a member state does not adjust drafts after ‘detailed opinions’, it risks an infringement procedure, or the Commission might regard the matter as so problematic that it proposes a directive. 16 The following is adapted from Pelkmans Citation(2005a) and Pelkmans (Citation2006: section 4.4.3.). 17 See COM (1999) 299 of 16 June 1999 on MR in the internal market, COM (2002) 419 of 23 July 2002 (second biannual report on MR), The Internal Market Scoreboard no. 10 of May 2002. 18 Since July 2006, the new address of the TRIS (technical regulation information system) website is: ; it collects information on the removal or prevention of regulatory (mainly technical) barriers to free movement. 19 SOLVIT is an on-line problem-solving network of national officials, co-ordinated by the Commission. It tackles complaints about the misapplication of internal market law by public (and also local) authorities, but without legal proceedings, in a period of a maximum of ten weeks. SOLVIT claims (September 2006) a success rate of 75 per cent of cases solved, a clear incentive to use it. Some 16 per cent of the cases are about market access of goods (i.e. often MR). See . 20 For a recent overview, see the Commission's 2003 interpretative communication on … the practical application of MR, as in note 15.