COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE REFIT EVALUATION 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) 476 final  COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE REFIT EVALUATION 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(2017) 472 final} - {SWD(2017) 475 final} - {SWD(2017) 477 final}  
 
 
EXECUTIVE SUMMARY 

Mutual recognition is influential for a proper functioning of the single market for goods. It consists of a 
principle,  embedded  in  Articles  34  and  36  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU), and further elaborated on in the case law, and of a legal act, Regulation (EC) No 764/2008 (the 
Mutual Recognition Regulation), defining the practical modalities of its implementation.  

If  a  business  is  lawfully  selling  a  product  in  one  Member  State,  it  should  be  able  to  sell  it  in  other 
Member States without adapting it to the national rules of that Member State, even when there are no 
common European rules on how the product has to be manufactured (rules on i.e. characteristics of the 
product, size, composition, etc.). The right to sell a product lawfully marketed in another Member State1 
can be refused only when the Member State of destination has diverging product requirements whose 
mandatory imposition is justified by the need to protect a certain public interest, and those requirements 
are necessary and proportionate for achieving that objective. This is the principle of mutual recognition 
in  the  field  of  goods.  The  application  of  the  principle  has  proved  to  be  problematic  in  practice. 
Therefore,  in  2008,  the  Mutual  Recognition  Regulation  was  adopted.  It  introduces  procedural 
guarantees to ensure on one hand that businesses can easily invoke their right to mutual recognition, and 
on  the  other  hand  that  Member  States  use  their  right  to  deny  mutual  recognition  in  the  light  of  the 
proportionality principle.  

This  evaluation  assessed  the  functioning  of  mutual  recognition  in  the  field  of  goods,  i.e.  the  mutual 
recognition principle and the Mutual Recognition  Regulation. Its findings feed the impact  assessment 
for the planned initiative on achieving higher and better mutual recognition, called upon in the Single 
Market Strategy, Upgrading the Single Market: more opportunities for people and business, adopted on 
28  October  20152,  and  one  of  the  main  objectives  of  the  2017  Commission  Work  Programme3.    This 
initiative, called "the Goods package", aims to give citizens and businesses the assurance that the Single 
Market protects and empowers them by proposing, on the one hand, to strengthen the implementation of 
EU  harmonisation  legislation  by  supporting  compliance  and  enforcement  and  on  the  other,  to  give  a 
major  boost  to  mutual  recognition  in  the  area  of  goods.  The  initiative  has  been  linked  to  the  REFIT 
programme due to the impacts that the malfunctioning of mutual recognition has on the internal market.  

Effectiveness 

The  general  objective  of  the  mutual  recognition  principle  and  Regulation  was  to  facilitate  free 
movement  of  goods  in  the  non-harmonised  area.  Additionally,  the  Regulation  had  the  following 
specific objectives: 

 
 
 

To increase awareness of the principle ,  
To ensure legal certainty when using the principle,  
To improve administrative cooperation among national authorities when applying the principle  

Despite the existence of the principle and the adoption of the Regulation, free movement of goods in the 
non-harmonised area remains problematic. Businesses are still facing difficulties with regards to market 
access, even if their products are already lawfully marketed in other Member States. Thus, they often 
adapt  their  products  or  give  up  entering  a  new  market.  The  comparison  of  the  value  of  the  intra  EU 
exports with domestic consumption shows that for harmonised products, the value of intra EU exports 
is 55% of the domestic consumption, while for the non-harmonised and partially harmonised goods it 
represents  only  35%.  Stakeholders'  consultation  shows  that  the  level  of  awareness  about  mutual 
recognition  increased  over  the  years,  but  not  sufficiently.  All  stakeholders  consider  that  awareness 
should  be  increased,  and  that  this  should  be  one  of  the  Commission's  main  priorities.  Legal  certainty 
when using mutual recognition remains a major obstacle to free movement of non-harmonised products, 
and  one  of  the  main  reasons  why  businesses  and  national  authorities  are  reluctant  towards  mutual 

1     
2  

3  

Applies also to EEA products 
Communication from Commission to the European Parliament, the Council, the European Economic and Social Committee and the 
Committee of the Regions, Upgrading the Single Market: more opportunities for people and business, COM 2015 550/2 
http://ec.europa.eu/atwork/key-documents/index_en.htm  

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recognition.  As  regards  administrative  cooperation,  the  evaluation  shows  that  it  needs  to  be  further 
enhanced in order to facilitate the application of the mutual recognition principle. Furthermore, the lack 
of reliable data on the functioning of mutual  recognition  needs to be addressed, in order to allow  the 
gathering of accurate data on how mutual recognition impacts the free movement of goods.  

Efficiency  

In terms of costs, the Regulation generated few costs for national authorities: the implementation and 
functioning of the PCPs (EURO 7417-47 450, based on 1 FTE) and the costs related to the assessment 
of  products  lawfully  marketed  in  another  Member  State  (EURO  420  000  in  one  sector  such  as 
fertilisers). The main costs incurred by businesses are rather due to the incorrect application of mutual 
recognition.  They  have  to  adapt  their  products,  redo  tests  and  procedures  (EURO  1000-150  000  per 
product and market), or lose opportunities (EURO 40 000-500 000 per product and market). National 
authorities  tend  to  agree  that  the  costs  are  proportionate  to  the  benefits,  while  businesses  mostly 
disagree. A study done for the European Parliament4  shows that a reduction of barriers to trade could 
lead  to  an  increase  in  intra-EU  trade  of  more  than  100  billion  EUR  per  year.  The  fact  that  mutual 
recognition does not function as well as it should is, de facto, a regulatory burden triggering barriers to 
trade. Therefore, any efforts to improve it would result in simplification for businesses.  

Coherence 

There does not seem to be any contradiction between mutual recognition and other EU policies in this 
area. Rather, the mutual recognition principle and the Regulation complement and are coherent with a 
number of initiatives such as the "Transparency" Directive5, the Construction Products Regulation6, The 
SOLVIT network7, the General Product Safety Directive8 and EU harmonisation legislation.  

Relevance  

Mutual recognition is seen as an alternative to harmonisation, when the latest is not necessary, justified 
and proportionate. There are currently 0.99 million enterprises operating in the non-harmonised area.  It 
is particularly relevant for supporting innovation.  

EU added value  

There  is  a  general  consensus  among  stakeholders  that  mutual  recognition  allows  free  movement  of 
goods,  while  maintaining  the  Member  States'  regulatory  autonomy  and  diversity.  It  is  widely 
acknowledged that the objectives it sets out can be met only by acting at EU level.  

4  

5  

6  
7  
8  

The  costs  of  non  –Europe  in  the  Single  market,  'Cecchini  Revisited',  An  overview  of  the  potential  economic  gains  from  further 
completion of the European Single Market, CoNE 1/204 
Directive (EU) 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules 
on Information Society services OJ L 241, 17.9.2015, p. 1–15 
Regulation (EU) No 305/2011 on Construction products OJ L 88, 4.4.2011, p. 5–43 
http://ec.europa.eu/solvit/what-is-solvit/index_en.htm  
Directive 2001/95/EC on General Product Safety, OJ, L 001? 15.01.2002 

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