COMMISSION STAFF WORKING DOCUMENT STAKEHOLDER CONSULTATION - SYNOPSIS REPORT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition on goods lawfully marketed in another Member State
Date: 2017-12-19
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: EU Member State, administrative cooperation, exchange of information, free movement of goods, goods and services, market approval, mutual recognition principle, single market, technical rule

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   EUROPEAN COMMISSION  Brussels, 19.12.2017 SWD(2017) 477 final  COMMISSION STAFF WORKING DOCUMENT STAKEHOLDER CONSULTATION - SYNOPSIS REPORT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition on goods lawfully marketed in another Member State {COM(2017) 796 final} - {SWD(2017) 471 final} - {SWD(2047) 472 final} - {SWD(2017) 475 final} - {SWD(2017) 476 final}  
 
 
Contents 

1. 

OBJECTIVES OF THE CONSULTATION ........................................................... 2 

1.1.  Consultation methods and tools .............................................................................. 2 

2. 

RESULTS OF THE CONSULTATION ACTIVITIES .......................................... 2 

2.1.  Meetings of the Mutual Recognition Consultative Committee ............................... 2 
Stakeholder conference of 17 June 2016 ................................................................. 3 
2.2. 
2.3. 
Public Consultation ................................................................................................. 3 
2.3.1.  How stakeholders see mutual recognition and its potential shortcomings ............. 3 
2.3.2.  Functioning of the Mutual Recognition Regulation ................................................ 3 
2.3.3.  Assessment of communication when using Mutual Recognition ............................. 4 
2.3.4.  Priorities to improve Mutual Recognition .............................................................. 4 
2.3.5.  Options .................................................................................................................... 4 
2.4. 
Surveys carried out by the external contractors ...................................................... 4 
2.5.  Other contributions received (position papers or e-mail) ........................................ 5 

3. 

FEEDBACK TO STAKEHOLDERS ..................................................................... 5 

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1.  OBJECTIVES OF THE CONSULTATION  

The 'Single Market Strategy' (COM(2015)550 of 28.10.2015) highlights the need to 
strengthen the single market for goods in the field of mutual recognition. This principle 
allows for products lawfully marketed in a Member State and not subject to European 
harmonisation legislation to enjoy the right to free movement, despite lack of compliance with 
national technical rules of the Member State of destination. However, the principle is not yet 
used at its full potential as shown in a recent evaluation of the mutual recognition principle.  
To improve the application of the mutual recognition principle, the Commission will present 
an EU-wide Action Plan to raise awareness, with a focus on problematic sectors. The 
Commission will also investigate the need for a revision of Regulation (EC) No 764/2008 to 
ensure a better application among businesses and national authorities. The objective of the 
consultation was therefore to seek stakeholders' views on the current and future application of 
Mutual Recognition.   
1.1.  Consultation methods and tools 

The members of the Mutual Recognition Consultative Committee1 were asked to provide 
their feedback during their last meetings on 2 December 2015 and 25 October 2016. 
A public consultation in all EU official languages has been published on a consultation 
website hosted on Europa. The consultation has run from June to September 2016.  
The public consultation has been supplemented by a stakeholder conference organised by 
the Commission on 17 June 2016.  
2.  RESULTS OF THE CONSULTATION ACTIVITIES 

2.1.  Meetings of the Mutual Recognition Consultative Committee 

The consultative “Mutual Recognition Committee” held its seventh and eighth meetings on 2 
December 2015 and 25 October 2016 respectively. The Committee's members are 
representatives of Member States dealing with mutual recognition issues. The Commission 
presented ideas for raising awareness on mutual recognition, welcomed by Member States, a 
preliminary analysis of the main problems generated by the suboptimal functioning of mutual 
recognition and the preliminary options for improving mutual recognition and asked for 
feedback from the delegations.  
As regards the possible introduction of a declaration of compliance some Member States 
stressed the possible administrative burden on economic operators while acknowledging that 
such declaration would facilitate their tasks.  
The Commission also presented options intended to incite national authorities to comply with 
the obligation to notify administrative decisions denying or restricting mutual recognition, 
such as more transparency and using an IT tool, and the possibility of creating a new fast 
track mechanism which would be an alternative to the costly and lengthy court procedures 
currently available.  
The option of a system of prior authorisation to placing products on the market received 
opposition from many Member States expressed their opposition to this option, as it would 
hinder the free movement of goods.   
As regards the option of ensuring free movement of goods guaranteed by compliance with 
European standards, Member States considered that focusing on essential requirements is 
more beneficial than using standards.  

1  

The members of this Committee are the national authorities responsible for mutual recognition in the 28 Member States and in Iceland, 
Liechtenstein, Norway, Switzerland and Turkey. Representatives of other third parties or other experts may be invited to participate on 
a specifc topic, on a case by case basis. 

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Member States supported the possibility to enlarge and enhance the Product Contact Points as 
the Product Contact Points lack resources and staff.  
Member States were strongly against harmonisation of certain basis requirements, since 
partial harmonisation only for the sake of free movement does not bring benefits 
proportionate to the level red tape it adds.   
2.2.  Stakeholder conference of 17 June 2016 

A stakeholders' event was organised on 17 June 2016, to identify the main issues related to 
the functioning of mutual recognition and to identify possible ways forward. 144 participants 
attended the event, representing businesses (62), national authorities (60) and others (22), 
such as consumer organisations, representatives of trade unions. The detailed minutes of this 
conference, participants and presentations can be found at: 
http://ec.europa.eu/DocsRoom/documents/17963 
Presentations and discussions were followed by 3 workshops, with a balanced representation 
of national authorities, businesses and associations. 
2.3.  Public Consultation 

153 replies were received during the public consultation. Businesses were strongly 
represented (91), followed by Member States authorities (45), and citizens (17). 45 
authorities from Member States replied to the public consultation. Individual companies (44) 
and business organisations (44) were equally represented.  
In terms of activity sectors, manufacturing is the most represented sector (46%), followed 
by wholesale and retail trade (13%), agriculture, forestry and fishing (8%) and water 
supply (6%).  
The geographical representation is quite well balanced for businesses. As for national 
authorities, 18 Member States and Norway participated in the public consultation.  
2.3.1. How stakeholders see mutual recognition and its potential shortcomings 

The majority of responding companies wishing to sell products in another Member State 
check the applicable rules in that Member State, and, if these rules prevent them from selling 
the product, most of them adapt it. This happens despite the fact that 70% of them are fully 
aware of the mutual recognition principle. More than half of the businesses responding tried 
to use mutual recognition for entering a new market. Among them, half had their market 
access denied, and only 2% challenged this decision successfully.  
Despite the indicated high level of awareness about mutual recognition, the majority of 
respondents consider that awareness-raising remains necessary. 
As regards the obstacles to the functioning of mutual recognition, businesses identified the 
lack of quick remedies for challenging national decisions denying market access as the 
highest one, followed by insufficient communication among authorities. 52% of the 
respondents faced such obstacles themselves.  
2.3.2. Functioning of the Mutual Recognition Regulation 

Effectiveness: to what extent has the Regulation achieved its objectives?  
The majority of respondents are aware of the Regulation, and consider that most of the tools 
put in place are useful and still necessary. As regards whether or not the Regulation has met 
its objective, very few economic operators consider that it is easier to sell products in other 
Member States since the Regulation entered into force. The majority consider that the 
Regulation has not improved the situation, or do not know, either because they do not use 
mutual recognition or they do not sell products abroad.  
Efficiency: costs and benefits of the Regulation  

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National authorities ranked these costs as average, and agree, fully or partially, that the 
Regulation brings benefits in terms of facilitating market access.  
For businesses, the main costs incurred are triggered by the need to adapt the products to the 
applicable national rules, when mutual recognition is either denied or not used for penetrating 
the market. High costs are also related to delays in entering a market, and to lost 
opportunities, when businesses relinquish entering a market because of different national rules 
that require adapting the products. The costs related to challenging administrative decisions 
denying market access are considered as less important, mainly because few economic 
operators choose to do so.  
Costs also related to assessing if mutual recognition can be used to sell products in another 
Member State. Very few economic operators (2%) are outsourcing this assessment, while 
26% are doing it internally. 46%  are doing both, depending on the product.  
In terms of benefits that the regulation brings, the perception of responding businesses is quite 
mixed. While Member States tend to consider that the costs of the Regulation are 
proportionate to the benefits it generates, businesses mostly disagree with only 9% agreeing.  
Coherence 
There is a consensus among respondents as regards the coherence of the Regulation.  
EU added value  
The European added value of the mutual recognition rules is also strongly underlined by the 
respondents. 
2.3.3. Assessment of communication when using Mutual Recognition 

Most of the responding businesses have never contacted a Product Contact Point to obtain 
information on the applicable product rules, mainly because they are not aware of their 
existence. Responding Member States consider the communication with authorities within 
their own country as good, while communication with authorities from other Member States 
is rather average or poor.  
2.3.4. Priorities to improve Mutual Recognition 

If businesses rank the need for effective remedies as being the highest priority, Member States 
and citizens opt in favour of increasing awareness about mutual recognition.  
2.3.5. Options 

All options put forward for making mutual recognition easier to apply and more reliable 
received a high level of support among respondents.  
As to what would be the most appropriate alternative to mutual recognition, the majority of 
respondents agree that harmonisation is the most appropriate tool to use when mutual 
recognition does not work properly.  
2.4.  Surveys carried out by the external contractors 

In the framework of the external study evaluating the functioning of the mutual recognition 
principle2 , four different surveys were launched on 9 October 2014 and completed on 5 
January 2015. The findings of the surveys and interviews show that the application of the 
mutual recognition principle is challenging and that there are still barriers to free movement 
of lawfully marketed goods due to additional requirements and tests existing in certain 
Member States. The lack of knowledge and awareness about mutual recognition remains 
problematic. Poor communication and cooperation among national authorities has also been 
pointed as a weakness.  

2  

http://ec.europa.eu/DocsRoom/documents/13381 

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In the framework of the study assessing the costs and benefits of the different options 
envisaged for improving mutual recognition, a survey and interviews were carried out by the 
external contactor. The stakeholder consultation focused not only on the current functioning 
of mutual recognition – and its main issues – but also on how to revise the Regulation, 
through the policy options proposed by the Commission. Targeted surveys and interviews 
allowed an understanding of stakeholders’ point of view about the Policy Options. National 
authorities highlight that: the wide scope, size and fragmentation of the market falling under 
mutual recognition and the presence of many different national legislations may create 
difficulties in having clear procedures to apply mutual recognition; products falling in areas 
where partial harmonisation and/or some EU standards exist create difficulties for authorities, 
since a mix of national and EU rules may apply, requiring more effort from their side to check 
and decide; a certain lack of communication exists also across Member States. Businesses 
highlighted obstacles linked to the difficulty of obtaining easy access to information on 
relevant legislation and procedures in place (language barriers) and time to receive a response 
from national authorities.  Both economic operators and national authorities agree that 
measures to improve the situation have to be taken. While among National Authorities there 
is quite a spread consensus about the need for intervention, either through soft-law or hard-
law instruments, economic operators appear to be more cautious on the effectiveness of the 
proposed options in avoiding delayed market access and reducing costs for them. However, 
economic operators and national authorities appear to be in favour of mixing different sub-
options, rather than the adoption of a single, full policy option. 
2.5.  Other contributions received (position papers or e-mail) 

Several interested parties submitted separate position papers, many of which call for more 
ambition to improve mutual recognition and trust among Member States.  
Some mention that the principle of mutual recognition could further be strengthened by the 
introduction of a presumption of conformity to independently (third party) tested products.  
Others stress the need to clarify the scope of the Mutual Recognition Regulation, to provide 
guidance for proportionality assessments and to share of best practices among Member States.  
Also, dissuasive means should be introduced to ensure that Member States notify according to 
their obligations in the Regulation. Moreover, effective remedies must be available to 
businesses in order for them to get quicker clarity on decisions taken against their products on 
the Single Market, including enhanced transparency to see the decisions. In addition, the 
Product Contact Points should be optimised and give businesses easy access to information 
about national decisions and technical rules. Also, there is an overall need for redeeming trust 
and strengthening cooperation among Member State authorities across the Single Market.  
The lack of trust between competent authorities should be overcome and national decisions 
should become more transparent. A Quick Assessment Procedure, allowing for an evaluation 
of decisions denying market access without a binding decision, is a potential tool that can lead 
to better understanding of the Mutual Recognition principle and improve the functioning of 
the current Regulation. 
3.  FEEDBACK TO STAKEHOLDERS 

The consultation processes provided a wide range of views regarding the implementation of 
the Regulation in terms of what has worked well and what has not worked so well, seen 
through the eyes of these stakeholders. The meetings with the stakeholders provided an early 
opportunity to promote the engagement of the national authorities, thus enhancing the chances 
of a good response rate.  
The overall objective of this initiative is to achieve a deeper single market for goods through 
more and better mutual recognition. This will be done by increasing awareness on mutual 

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recognition, enhancing legal certainty for businesses and national authorities when using 
mutual recognition and improving administrative cooperation and trust among authorities. 
This will result in unleashing the full potential of the internal market, by facilitating the use 
and application of mutual recognition, reducing the risk for businesses that their products will 
not get access to or will have to be unjustifiably withdrawn from the market and offering 
more choices at lower prices for consumers. While the expected benefits of more and better 
mutual recognition cannot be estimated with accuracy, a recent study on "The Costs of Non-
Europe in the Single Market" shows that a reduction of trade barriers could lead to an increase 
of intra-EU trade of more than 100 billion EUR per year. The concept of trade barriers in this 
study is broader than mutual recognition only, but it provides an estimation of the expected 
benefits.  
The EU added value of this initiative lies in having a common set of rules which guarantee 
equal treatment and allows a consistent, coherent and correct application of mutual 
recognition. Mutual recognition arises from Articles 34-36 of the Treaty on the Functioning of 
the EU and from the Court of Justice jurisprudence, and directly contributes to achieving the 
internal market for goods, one of the main achievements of the EU. Action by Member States 
alone would weaken the mutual recognition principle and dismantle it in 28 different and 
potentially contradicting national procedures.   
The envisaged policy options included in this impact assessment were: 
• 

Option  2  -  Soft  law  to  improve  the  functioning  of  mutual  recognition  (awareness 
raising, training, exchange of officials, etc.) 

• 

• 

Option 3 - Minimum legislative changes to Regulation (EC) No 764/2008 (transparency 
of administrative decisions, use of EU standards, enlarged role for PCPs) 

Option  4  -  Comprehensive  legislative  changes  to  Regulation  (EC)  No  764/2008 
(voluntary  declaration  of  compliance,  fast  track  appeal  procedure,  enhanced  Product 
Contact Points and cooperation) 

• 

Option 5 - Voluntary prior authorisation to placing on the market  

The option related to repealing the Regulation and the option of proposing further 
harmonisation measures on specific basic requirements covering certain aspects of products 
have been discarded at an early stage, as well as the introduction of a third party declaration 
of compliance.  
The preferred option is option 4 (comprehensive legislative changes to Regulation (EC) No 
764/2008), complemented by option 2 (the soft law measures).   

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