COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL First Report on the application of Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC
Date: 2012-06-15
Institutions: European Commission
Subjects: commercial arbitration, free movement of goods, market approval, marketing standard, mutual recognition principle, single market

EUROPEAN COMMISSION 

Brussels, 15.6.2012  
COM(2012) 292 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

First Report on the application of Regulation (EC) No 764/2008 of the European 
Parliament and of the Council of 9 July 2008 laying down procedures relating to the 
application of certain national technical rules to products lawfully marketed in another 
Member State and repealing Decision No 3052/95/EC 

(Text with EEA relevance) 

EN 

   EN 

 
 
 
 
  
 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

First Report on the application of Regulation (EC) No 764/2008 of the European 
Parliament and of the Council of 9 July 2008 laying down procedures relating to the 
application of certain national technical rules to products lawfully marketed in another 
Member State and repealing Decision No 3052/95/EC 

(Text with EEA relevance)

EN 

2 

   EN 

 
TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

4. 

4.1. 

4.2. 

4.3. 

5. 

6. 

INTRODUCTION........................................................................................................ 4 

BACKGROUND.......................................................................................................... 4 

The principle of mutual recognition............................................................................. 5 

The Regulation (EC) No 764/2008 .............................................................................. 5 

APPLICATION OF REGULATION (EC) No 764/2008 DURING 2009 – 2012 ...... 7 

Establishing PCP.......................................................................................................... 7 

Establishing the list of products ................................................................................... 7 

Notifications from Member States ............................................................................... 7 

The yearly reports from the Member States................................................................. 9 

Meetings of the Consultative Committee on Mutual Recognition............................. 10 

DISSEMINATION OF INFORMATION ................................................................. 11 

The guidance documents............................................................................................ 11 

Guide to the application of Treaty provisions governing Free Movement of Goods 12 

Conferences, seminars and round tables .................................................................... 12 

COMPLIANCE WITH THE REGULATION........................................................... 12 

CONCLUSIONS........................................................................................................ 12 

EN 

3 

   EN 

 
1. 

INTRODUCTION 

In accordance with Article 12(3) of Regulation (EC) No 764/20081 (‘the Mutual Recognition 
Regulation’  or  ‘the  Regulation’),  the  Commission  shall  review  the  application  of  this  legal 
instrument on a regular basis. 

This first report by the Commission on the application of the Mutual Recognition Regulation 
is taking due account of the outcome of the three meetings of the Consultative Committee on 
mutual  recognition  held  to  date2,  the  notifications  addressed  to  the  Commission  by  the 
Member States under Articles 6(2) and 7(2) of the Regulation, the information provided for in 
the  yearly  reports  addressed  by  the  Member  States  to  the  Commission  in  accordance  with 
Article  12(1)  of  the  Regulation3,  the  input  provided  by  the  national  Product  Contact  Points 
(PCP)4,  the  specific  input  provided  by  stakeholders  and  the  complaints,  petitions  and 
parliamentary questions pertinent to this area received by the Commission. 

Within the non-harmonised area, the Regulation 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. It is 
generally  perceived  to  be  a  helpful  piece  of  legislation  and  has  contributed  towards  an 
increased  awareness  of  the  principle  of  mutual  recognition.  The  Regulation  has  eased  the 
burden  on  economic  operators  introducing  in  a  given  Member  State  products  previously 
lawfully marketed in another Member State. 

The report will demonstrate that the Regulation works by and large in a satisfactory way and 
that  there  is  no  need  for  amendments  at  present.  It  also  shows  that  that  there  are  certain 
specific categories of products where the difficulties in the application of the Regulation seem 
to concentrate. 

2. 

BACKGROUND 

Technical obstacles to the free movement of goods within the EU are still widespread. They 
occur when national authorities apply national rules that lay down requirements to be met by 
products (e.g. relating to designation, form, size, weight, composition, presentation, labelling 
and  packaging)  to  products  coming  from  other  Member  States  where  they  are  lawfully 
produced  and/or  marketed.  Unless  those  rules  implement  secondary  EU  legislation,  they 
constitute  technical  obstacles  to  which  Articles  34  and  36  TFEU  apply.  This  is  so  even  if 
those rules apply without distinction to all products, foreign and domestic alike. 

1 

2 

3 

4 

Regulation  (EC)  No  764/2008  of  the  European  Parliament  and  of  the  Council  of  9  July  2008  laying 
down procedures relating to the application of certain national rules to products lawfully  marketed in 
another Member State and repealing Decision 3052/95/EC (Text with EEA relevance), OJ L 218 of 13 
August 2008, p. 21-29. 
These three meetings took place respectively in 4 March 2009, 19 November 2010 and 30 November 
2011. 
These  reports  cover  the  period  from  13  May  2009  –  the  date  from  which  the  Mutual  Recognition 
Regulation applies, to 31 December 2011. 
PCP were established by Article 9 of the Regulation and their task discussed under Article 10. 

EN 

4 

   EN 

 
                                                 
2.1. 

The principle of mutual recognition 

The principle of mutual recognition, which derives from the case-law of the Court of 
Justice of the European Union5, is one of the means of ensuring the free movement 
of goods within the internal market. Mutual recognition applies to products which are 
not subject to EU harmonisation legislation, or to aspects of products falling outside 
the scope of such legislation. 

Under the principle of mutual recognition different national technical rules continue 
to coexist within the internal market. However, a Member State cannot, in principle, 
prohibit  the  sale  on  its  territory  of  goods  which  are  lawfully  produced  and/or 
marketed in another Member State, even if those goods are produced to technical or 
qualitative  specifications  that  differ  from  those  required  of  its  own  goods.  The 
Member  States  may  depart  from  this  principle  and  take  measures  prohibiting  or 
restricting  access  by  such  goods  to  the  national  market  only  under  very  strict 
conditions. 

Thus, the mutual recognition principle in the non-harmonised area consists of a rule 
and an exception: 

• 

• 

the general rule that, notwithstanding the existence of a national technical rule 
in  the  Member  State  of  destination,  products  lawfully  produced  and/or 
marketed  in  another  Member  State  enjoy  a  basic  right  to  free  movement, 
guaranteed by the TFEU; 

the  exception  that  products  lawfully  produced  and/or  marketed  in  another 
Member  State  do  not  enjoy  this  right  if  the  Member  State  of  destination  can 
prove  that  it  is  essential  to  impose  its  own  technical  rule  on  the  products 
concerned  based  on  the  reasons  outlined  in  Article  36  TFEU  (protection  of 
public morality or public security, protection of the health and life of humans, 
animals  or  plants,  etc.)  or  in  the  mandatory  requirements  developed  in  the 
Court’s  jurisprudence  and  subject  to  the  compliance  with  the  principle  of 
proportionality. 

2.2. 

The Regulation (EC) No 764/2008 

Until  recently,  a  major  problem  for  implementation  of  the  mutual  recognition 
principle was the lack of legal certainty about the burden of proof. It was one of the 
reasons  for  adoption  of  Regulation  (EC)  No  764/2008  laying  down  procedures 
relating  to  the  application  of  certain  national  technical  rules  to  products  lawfully 
marketed in another Member State and repealing Decision No 3052/95/EC. 

The Regulation neither covers, nor was intended to, the whole area of application of 
the principle of mutual recognition. Instead, it lays down the rules and procedures to 
be  followed  by  the  competent  authorities  of  a  Member  State  when  taking  or 

5 

The principle originated in the famous Cassis de Dijon judgment of the Court of Justice of 20 February 
1979  (Case  120/78  Rewe-Zentral  [1979]  ECR  649)  and  was  the  basis  for  a  new  development  in  the 
internal market for goods. While at the beginning not expressly mentioned in the case-law of the Court 
of Justice, it is now fully recognised (see, for example, Case C-110/05 Commission v Italy [2009] ECR 
I-519, paragraph 34). 

EN 

5 

   EN 

 
                                                 
intending  to  take  a  decision,  in  accordance  with  national  technical  rules,  which 
would hinder the free movement of a product lawfully marketed in another Member 
State and subject to Article 34 TFEU. 

Therefore,  national  authorities  must  apply  the  Regulation  if  the  administrative 
decision to be taken:  

(1) 

concerns a product lawfully marketed in another Member State; 

(2) 

concerns a product which is not subject to harmonised EU law;  

(3) 

is addressed to economic operators;  

(4) 

is based on a technical rule; and  

(5)  has the direct or indirect effect that the product is:  

(a)  prohibited from being placed on the market;  

(b)  modified or subject to additional testing before it can be placed or kept 

on the market; or  

(c)  withdrawn from the market.  

The Regulation places the burden of proof on the national authorities that intend to 
deny market access.  They  must  set out in writing the  precise technical or scientific 
reason  for  their  intention  to  deny  the  product  access  to  the  national  market.  The 
economic  operator  is  given  the  opportunity  to  defend  its  case  and  to  submit  solid 
arguments to the competent authorities.  

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.  

The  philosophy  of  the  Regulation  follows  the  twofold  approach  of  combining 
transparency  and  efficiency:  transparency  of  information  to  be  exchanged  between 
enterprises and national authorities, efficiency by avoiding any duplication of checks 
and 
testing.  The  preventive  dialogue  established  between  enterprises  and 
administrations  takes  full  advantage  of  the  instruments  for  preventing  and  for 
amicably and effectively settling problems of free movement and can be considered 
as the core mechanism of the Regulation. 

The  main  value  of  the  Mutual  Recognition  Regulation  principally  is  perceived  in 
terms  of  how  this  piece  of  legislation  has  reduced  information  costs  (for  instance, 
making  national  technical  rules  more  accessible  for  SMEs)  and,  in  doing  so,  has 
facilitated the exploitation of free movement of goods and mutual recognition.6  

6 

For all, see Pelkmans, J., “Mutual recognition: rationale, logic and application in the EU internal goods 
market”,  Paper  presented  in  the  XIIth  Travemuender  Symposium,  24  –  26  March  2010  on: 
Oekonomische Analyse des Europarechts: Primaerrecht, Sekundaerrecht und die Rolle des EuGH. 

EN 

6 

   EN 

 
                                                 
The Mutual Recognition Regulation is of application in all the 27 Member States. Its adoption 
under the EEA Agreement is still pending at the moment of drafting this report. Whereas the 
principle of mutual recognition also applies in EU-Turkey relations7, the Mutual Recognition 
Regulation as such does not.8  

3. 

APPLICATION OF REGULATION (EC) NO 764/2008 DURING 2009 – 2012 

During the period in question, the Commission monitored the application of the Regulation in 
the Member States, mainly but not only through the notifications and reports addressed by the 
Member States. It also organized the meetings of the Consultative Committee.  

The  Commission  has  also  undergone  specific  actions  to  increase  public  awareness  of  the 
principle of mutual recognition and the Mutual Recognition Regulation in the single market. 

3.1. 

Establishing Product Contact Points (PCP) 

Articles 9(1) and (2) required, respectively, the designation of PCP by the Member 
States  and  the  publication  and  regularly  updating  by  the  Commission  of  a  list  with 
their contact details. 

3.2. 

Establishing the list of products 

In  turn,  Article  12(4)  required  from  the  Commission  the  publication  of  a  non-
exhaustive list of products which are not subject to EU harmonisation legislation. 

The  contact  details  of  the  PCP  were  published  in  the  Official  Journal.9  Together  with  the 
database containing the list of products which are not subject to EU harmonisation legislation 
they are now also available online10, aiming to facilitate the exchange of information between 
economic operators, PCP and the competent authorities of the Member States.  

3.3. 

Notifications from Member States 

Articles  6(2)  and  7(2)  of  the  Regulation  establish  the  obligation  for  the  national 
authorities  to  notify  to  economic  operators  and  to  the  Commission,  respectively, 
decisions referred to in Article 2(1)11 and other decisions establishing the temporary 

7 

8 

9 
10 
11 

The  obligation  to  apply  the  principle of  mutual  recognition  to products  lawfully  manufactured  and/or 
marketed in Turkey is based on Articles 5 to 7 of Decision 1/95 of the EC-Turkey Association Council 
of 22 December 1995 on implementing the final phase of the Customs Union (OJ L 35 of 13 February 
1996)  that  provide  for  the  elimination  of  measures  having  an  effect  equivalent  to  quantitative 
restrictions between the EU and Turkey. Pursuant to Article 66 of Decision 1/95, Articles 5 to 7 must, 
for  purposes  of  their  implementation  and  application  to  products  covered  by  the  Customs  Union,  be 
interpreted  in conformity  with  the relevant judgments  of  the  Court of Justice  of  the European  Union. 
Therefore, principles resulting from the Court of Justice’s case-law on issues that relate to Articles 34 
and 36 TFEU, particularly the “Cassis de Dijon” case, apply to the EU Member States and Turkey. 
Nevertheless,  Turkey  has  recently  undertaken  to  launch  the  internal  procedure  for  the  adoption  of  its 
own Draft Regulation on Mutual Recognition in the Non-Harmonised Area. 
The contact details of the PCP were initially published in the OJ C 185 of 7 August 2009, p. 6-12. 
http://ec.europa.eu/enterprise/intsub/a12/  
That is, those administrative decisions whose direct or indirect effect is the prohibition of the placing on 
the market of that product or type of product; the modification or additional testing of that product or 
type of product before it can be placed or kept on the market; or the withdrawal of that product or type 
of product from the market. 

EN 

7 

   EN 

 
                                                 
suspension  of  the  marketing  of  a  product.  In  the  period  between  the  entry  of  the 
Regulation  into force on 13 May 2009  and 31 December of 2011, the Commission 
has received 1524 notifications pursuant to Article 6(2) and none pursuant to Article 
7(2). 

Of  these  notifications,  90%  refer  to  articles  of  precious  metals,  whereas  the  rest  to 
variety  of  products:  foodstuffs  (or  food  additives/medicines),  energy  drinks  and 
electrical equipment. 

The notifications  have to date  come from seven Member States. However, 1378 of 
the total notifications come from one Member State and concern articles of precious 
metals. 

In the Commission’s opinion, and as further developed under 3.4 below, this points 
to the fact that Member States do not notify all decisions falling under Articles 6(2) 
and 7 of the Regulation they take.  

The  high  number  of  notifications  concentrating  in  the  precious  metals  area  can  be 
explained, in the Commission’s opinion, by the existence in many Member States of 
permanent  and  long  time  ago  established  control  bodies  (assay  offices)  specifically 
devoted  to  the  assaying  (testing),  hallmarking  and  control  of  articles  of  precious 
metals.  

It  must  be  recalled  that  the  Commission  has  presented  in  the  past  two  different 
proposals  concerning  the  harmonisation  of  national  laws  relating  to  articles  of 
precious metal. The first one12 was introduced in 1975 and withdrawn in 1977. The 
most recent13 was introduced in 1993. A number of Member States (those following 
a  compulsory  hallmarking  system)  were  adamant  in  their  opposition  to  these 
proposals  and,  even  after  the  introduction  of  an  amended  proposal  in  1994, 
opposition  continued  among  a  considerable  number  of  Member  States.  Over  the 
following  years  no  agreement  could  be  reached  and  consequently  the  proposal  was 
withdrawn on 24 March 2005. 

In light of the subsequent rulings of the Court of Justice in this area14, it was rendered 
clear that articles of precious metals imported from one Member State and marketed 
in  another,  which  have  been  lawfully  struck  in  a  Member  State  with  a  hallmark 
stamped  by  a  body  which  offers  guarantees  of  independence,  and  which  offers 
appropriate  information  to  consumers,  should  be  allowed  to  be  marketed.  No 
differences  should  be  made  between  approved  hallmarks  struck  on  articles 

12 

13 

14 

Proposition  de  directive  du  Conseil  concernant  le  rapprochement  des  legislations  des  etats  membres 
relatives  aux ouvrages  en  metaux  precieux, COM/1975/607/final, 1  December  1975;  published  in  the 
OJ C 11 of 16 January 1976, p. 2-11. 
Proposal for a Council Directive on articles of precious metal, COM(93) 322 final, 14 October 1993; 
modified by Amended Proposal for a European Parliament and Council Directive on articles of precious 
metal, COM(94) 267 final, 30 June 1994. 
The  main  cases  being  the  judgment  of  the  Court  of  Justice  of  22  June  1982,  Criminal  proceedings 
against Timothy Frederick Robertson and others, Case C-220/81; the judgment of the Court of Justice 
of  15 September 1994,  Criminal proceedings  against  Ludomira  Neeltje  Barbara Houtwipper,  Case  C-
293/93 [1994] ECR I-04249]; and the judgment of the Court of Justice of 21 June 2001, Case C-30/99, 
Commission v. Ireland [2001] ECR I-04619. 

EN 

8 

   EN 

 
                                                 
manufactured  in  the  Member  State  of  destination  and  those  hallmarks  of  the  same 
type struck on articles imported from other Member States.15  

Therefore, in the absence of harmonised EU legislation, free movement of articles of 
precious metals between the Member States can be achieved by following the mutual 
recognition  route  charted  by  the  Houtwipper  judgment.16  In  consequence,  the 
Commission  does  not  consider  proposing  further  harmonisation  in  this  area  for  the 
moment.  

As  concerns  foodstuffs,  food  additives  and  medicines,  in  light  of  the  partial 
harmonisation within this area, there might be differences in national legislation (e.g. 
the  classification  of  some  products  as  medicinal  products  or  foodstuffs,  in  various 
Member  States,  the  use  of  substances  other  than  vitamins  or  minerals  in  the 
manufacture  of  food  supplements,  etc.)  which  may  be  factors  affecting  the  free 
movement  of  those  products.  Further  harmonization  efforts  in  those  sectors  are 
envisaged.  

3.4. 

The yearly reports from the Member States 

Under  Article  12(1)  of  the  Regulation,  each  Member  State  must  address  the 
Commission  on  a  yearly  basis  a  report  on  the  application  of  this  Regulation.  That 
report should include at least the information on the number of written notices sent 
pursuant  to  Article  6(1)  and  the  type  of  products  concerned;  sufficient  information 
concerning  any  decisions  taken  pursuant  to  Article  6(2),  including  the  grounds  on 
which  those  decisions  were  based  and  the  type  of  products  concerned;  and  the 
number  of  decisions  taken  pursuant  to  Article  6(3)  –  intended  negative  decisions 
finally not adopted, and the type of products concerned. 

To date, the Member States have presented the Commission with three such reports: 
a first report covering the application of the Regulation from May 2009 to May 2010, 
a second one covering such a period from 2010 to 2011, and a supplementary report 
covering the period until 31st December 2011. From that moment on, the reports will 
be requested upon calendar year basis. 

In  addition  to  the  information  indicated  above,  the  following  items  were  suggested 
by the Commission: 

• 

• 

• 

an  analysis  of  types  of  products  and/or  sectors  in  which  the  Regulation  was 
applied most often; 

information on the structure and functioning of the product contact points (the 
staffing, number and nature of inquiries, problems encountered, etc.); 

an  assessment  of  any  difficulties  experienced  in  the  process  of  applying  the 
Regulation and proposals for possible improvements; and 

15 

16 

For  further  specific  information  on  this  issue,  see  the  guidance  document  “The  application  of  the 
Mutual Recognition Regulation to articles of precious metals” referred to in point 4.1 below. 
Case C-293/93. See note 14. 

EN 

9 

   EN 

 
                                                 
(1) 

(2) 

(3) 

• 

an  evaluation  of  the  impact  of  the  Regulation  on  the  practical  functioning  of 
the mutual recognition principle; and 

The following main conclusions can be drawn from these reports: 

The  opinions  of  the  Member  States  have  been  almost  unanimously  positive  as 
regards the effectiveness of the Regulation in raising the awareness of the principle 
of mutual recognition among those businesses involved in intra-EU trade.  

The  majority  of  decisions,  requests  for  information  and  complaints  received  by  the 
national  administrations  concern  specific  categories  of  goods:  articles  of  precious 
metals,  foodstuffs,  food  additives  and  food  supplements,  construction  products, 
fertilisers, automobile spare parts, electrical products, and spring water. 

They  confirm  that  the  national  authorities  are  not  always  communicating  to  the 
Commission the negative decisions actually adopted by them. This situation may be 
due to several reasons: 

– 

– 

in some decentralized Member States, regional or local bodies are able to adopt 
– and indeed they do, negative decisions that, in turn, are notified neither to the 
central government (which prepares the yearly reports) nor to the Commission; 

there  seem  still  to  be  some  misunderstandings  as  to  the  scope  of  the 
Regulation17 as well as to its relationship with other pieces of EU legislation18; 
thus, several negative decisions actually adopted by some Member States seem 
to have not been considered as those decisions referred to in Article 2(1) of the 
Regulation and therefore not communicated to the Commission. 

Also, some uncertainty about how and when to apply mutual recognition in practice is often 
mentioned  by  business,  PCP  and  national  administrations  alike.  Further  dissemination  of 
information, as detailed under point 4 below, seems the adequate way to tackle this problem. 
Nevertheless, the Commission must reiterate what is provided for in Articles 6(2) and 7(2) of 
the Regulation that whenever a decision under the Mutual Recognition Regulation is adopted 
by the national authorities, they are bound to notify it to the Commission at the same time as 
to the economic operator. 

3.5.  Meetings of the Consultative Committee on Mutual Recognition 

During the three meetings to date held by the Consultative Committee established by 
Article 13 of the Regulation, the Commission and the representatives of the Member 
States19  have  discussed  matters  relating  to  the  application  of  this  legislative 
instrument. 

The main discussion topics during these first three meetings have been the guidance 
documents prepared by the Commission (see 4.1 below), the role of the PCP, the list 
of  products  falling  under  the  Regulation,  issues  dealing  with  the  information 
obligations,  difficulties  perceived  during  the  application  of  the  Regulation  and  the 

17 

18 
19 

Especially regarding prior authorisation procedures (and, therefore, not covered by the Regulation) in 
some Member States. 
Mainly with Directive 2001/95/EC (the General Safety Products Directive). 
And, since 2011, also from the EFTA. 

EN 

10 

   EN 

 
                                                 
assessment of the possibilities under the telematic network mentioned under Article 
11  of  the  Regulation  concerning  the  exchange  of  information  between  PCP  and/or 
the competent authorities of the Member States. 

4. 

DISSEMINATION OF INFORMATION 

The  Commission  elaborated  guidance  documents  on  the  application  of  the  Regulation  in 
particular sectors and was taking other steps aiming at improving the way that both, mutual 
recognition principle and the Mutual Recognition Regulation, operate. 

4.1. 

The guidance documents 

A  series  of  guidance  documents  (9  for  the  moment  now)  offering  practical 
information on the application of the Regulation to some particular issues have been 
prepared by the Commission at the request and with the input of the members of the 
consultative committee. They concern:  

•  The  relationship  between  Directive  98/34/EC  and  the  Mutual  Recognition 

Regulation, 

•  The  application  of  the  Mutual  Recognition  Regulation  to  articles  of  precious 

metals, 

•  The  relationship  between  Directive  2001/95/EC  and  the  Mutual  Recognition 

Regulation, 

•  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, and 

•  The  application  of  the  Mutual  Recognition  Regulation  to  non-CE  –marked 

construction products. 

These  indicative,  non-legally  binding,  documents  have  also  been  made  public 
through the Commission’s web page on mutual recognition.20 They seek to provide 
‘user-friendly’ guidance on the application of the Regulation and will be updated to 
reflect  experience  and  information  from  the  Member  States,  authorities  and 
businesses.  

20 

http://ec.europa.eu/enterprise/policies/single-market-goods/free-movement-non-harmonised-
sectors/mutual-recognition/  

EN 

11 

   EN 

 
                                                 
4.2. 

Guide  to  the  application  of  Treaty  provisions  governing  Free  Movement  of 
Goods 

The application of the principle of mutual recognition requires a basic knowledge of 
the  principles  of  the  free  movement  of  goods.  The  Commission  published  the 
document  "Free  movement  of  goods.  Guide  to  the  application  of  Treaty  provisions 
governing  the  free  movement  of  goods”  in  which  it  describes  in  particular  the 
principle  of  mutual  recognition  and  summarises  the  most  pertinent  case  law  of  the 
Court of Justice on the subject. It is available on the Commission's web page on free 
movement in the non-harmonised sector.21  

4.3. 

Conferences, seminars and round tables 

Since  2009  the  Commission  has  organised  or  taken  part  in  12  seminars  on  mutual 
recognition  in  the  internal  market  and  the  application  of  the  Mutual  Recognition 
Regulation. The main participants were academia and specific business sectors from 
the  areas  most  often  concerned  by  mutual  recognition.  National  administrations 
seemed to be in favour of holding such seminars more regularly. 

5. 

COMPLIANCE WITH THE REGULATION 

During the period covered by this report, there have been neither  specific judgments by  the 
Court  of  Justice  nor  infringement  procedures  centred  on  the  application  of  the  Mutual 
Recognition Regulation. 

Due  to  the  nature  of  the  regulation  as  a  directly  applicable  legislative  act  of  the  European 
Union,  it  is  immediately  and  directly  enforceable  in  all  Member  States.  As  specified  in  the 
Regulation, any decision to which it applies should specify the remedies available so that an 
economic  operator  can  bring  proceedings  before  the  competent  national  court  or  tribunal. 
Thus,  in  the  Commission’s  opinion,  the  matters  regarding  the  correct  application  of  the 
Regulation  in  concrete  situations,  while  not  precluding  any  possible  Commission’s  action, 
should be dealt with by the competent national bodies. 

6. 

CONCLUSIONS 

In  the  light  of  the  above,  certain  aspects  of  the  Mutual  Recognition  Regulation  require 
continued monitoring and could be subject to further clarification. 

Apart  from  the  specific  categories  of  goods  mentioned  in  points  3.3  and  3.4  above,  the 
following  issues  constitute  areas  where  the  European  Commission  proposes  that  close  and 
regular monitoring through the consultative committee on mutual recognition takes place: 

• 

• 

21 

difficulties  to  demonstrate  that  a  product  has  been  lawfully  marketed  in  another 
Member State; 

difficulties  in  indentifying  which  legal  provisions  apply  and  which  are  the  relevant 
national authorities in charge; 

http://ec.europa.eu/enterprise/policies/single-market-goods/free-movement-non-harmonised-
sectors/index_en.htm  

EN 

12 

   EN 

 
                                                 
• 

• 

different  testing  methods  relied  upon  by  the  Member  States  and  their  possible 
compatibility through mutual recognition; and 

the role of prior authorisation procedures. 

After  having  taken  into  account  the  information  obtained  regarding  the  application  of  the 
Regulation,  the  Commission  does  not  consider  it  necessary,  at  this  stage,  to  submit  any 
proposal for its amendment.  

Nevertheless,  the  Commission  would  also  like  to  underline  its  commitment  to  continue 
monitoring  the  particularly  important  area  of  mutual  recognition  in  the  single  market  by:  a) 
improving  information  and  developing  training;  b)  taking  advantage  of  the  instruments  for 
preventing  and  for  amicably  and  effectively  settling  problems  of  free  movement  and  c) 
resorting,  if  need  be,  to  existing  possibilities  afforded  under  EU  law  to  eliminate  unlawful 
barriers. 

In this sense, the Commission proposes the continuation during the period 2012-2017 of the 
examination  and  discussion  within  the  Consultative  Committee  of  the  topics  in  the  areas 
mentioned  above  with  the  objective  of  analyzing  the  functioning  of  the  existing  EU  legal 
framework for mutual recognition. If discrepancies in the operation of the Mutual Recognition 
Regulation between Member States assume greater practical significance, an intervention by 
the Commission may be warranted.  

Finally,  it  must  be  highlighted  that  mutual  recognition  in  general  and  the  application  of  the 
Regulation  in  particular,  cannot  always  offer  a  solution  for  ensuring  the  free  movement  of 
goods in the single market. Harmonisation remains one of the most effective instruments, both 
for economic operators and for the national administrations.  

The Commission, in accordance with Article 12(3) of the Regulation will, therefore, continue 
to monitor the application and the effects of the Regulation and evaluate any eventual need for 
future amendments in its next report on the application of Regulation (EC) No 764/2008. 

The  Commission  would  ask  the  European  Parliament,  the  Council  and  the  European 
Economic and Social Committee to take note of this report. 

xxx 

EN 

13 

   EN