One of the European Union’s (EU) greatest achievements is the creation of a Single Market. This market was established with the objective of designing an EU without internal borders where goods can move freely. Although food law is relatively harmonised across the EU, regulatory differences still exist, as Member States remain eager to regulate food on a national level. As a result, regulatory differences between Member States have impeded free movement of food across Europe.
The concept of Mutual Recognition was initially introduced in the wake of the conspicuous Cassis de Dijon case, which took place over 40 years ago. Previously, German law imposed restraints on the minimum alcohol content of fruit liqueurs, which in turn made it difficult for Member states to import such drinks into Germany. However, this law changed in response to Cassis de Dijon. The EU Court of Justice ruled that products lawfully produced and sold in one Member State must be accepted in other Member States of the EU.
Over 40 years later, many argue that the principle of mutual recognition still has not worked effectively in ensuring market access and regulatory diversity in the EU. Regulation (EC) 764/2008 was introduced to establish a framework for mutual recognition. However, business operators still faced difficulties in expanding across the EU due to registration delays, duplication of testing and the additional costs involved. Regulation 764/2008 was therefore deemed ineffective in ensuring the principle of mutual recognition was applied.
As a result, Regulation 2019/515 was introduced to repeal Regulation 764/2008. This new regulation, applicable from 19 April 2020, aims to improve the functioning of the Mutual Recognition principle by incorporating the following:
- A voluntary “Mutual Recognition Declaration”, that businesses can demonstrate to Member States to show their products are lawfully marketed in another EU Member State (This declaration may be made by an authorized representative);
- An assessment procedure that Member State competent authorities must follow when assessing compliance of goods. During this assessment, competent authorities shall take account of the Mutual Recognition Declaration, if made available to them. It is important to note, business operators retain the right to continue marketing their goods during this assessment period, unless an administrative decision has been made restricting or denying access to the market;
- An obligation that Member State authorities must clearly justify the grounds for restriction or refusal to market access, so that their decision can be assessed for compatibility with the Mutual Recognition prinicple;
- An alternative, business friendly, non-judical procedure known as SOLVIT. This mechanism aims to settle disputes by enabling businesses to challenge competent authority decisions. At the request of SOLVIT, the EU Commission will look into the matter and provide an Opinion on whether the national decision is compatible with the Mutual Recognition prinicple;
- The establishment of “product contact points” in each EU Member State, which provide free advice to businesses on the interpretation and application of the mutual recognition regulation.
We are hopeful that the recent application of Regulation 2019/515 will improve the free movement of goods throughout Europe through its establishment of : the voluntary Mutual Recognition Declaration, a clear procedure for ensuring any restrictions imposed on goods by competent authorities is clearly justified and presence of SOLVIT networks in each EU Member State.
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