Explanatory Memorandum to COM(2007)36 - Procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State - Main contents
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| dossier | COM(2007)36 - Procedures relating to the application of certain national technical rules to products lawfully marketed in another Member ... |
|---|---|
| source | COM(2007)36  |
| date | 14-02-2007 |
The Internal Market for Goods is a fundamental element of European Integration. An integrated borderless market is the best way to enhance the competitiveness of the European economy. A better functioning Internal Market is thus a critical element of the re-launched strategy for Jobs and Growth to enable the EU to compete and succeed in a globalised economy, in which our main trading partners have large and unified markets.
Articles 28 and 30 of the EC Treaty entail inter alia that Member States of destination cannot forbid the sale on their territories of products lawfully marketed in another Member State and which are not subject to Community harmonisation, unless the technical restrictions laid down by the Member State of destination are justified on the grounds described in Article 30 of the EC Treaty, or on the basis of overriding requirements of general public importance recognised by the Court of Justice's case law, and that they are proportionate. This is the so-called 'principle of mutual recognition' that results from an analysis of the case law of the Court of Justice (see the famous 'Cassis de Dijon'-judgment of 20 February 1979 and the Communication from the Commission on this given by the Court of Justice on 20 February 1979 in Case 120/78 (Cassis de Dijon), OJ C 256 of 3 October 1980.
The implementation of the 'principle of mutual recognition' under Articles 28 and 30 of the EC Treaty is hampered by several problems:
3. The lack of awareness of enterprises and national authorities about the existence of the mutual recognition principle.
4. The legal uncertainty about the scope of the principle and the burden of proof. Firstly, it is often unclear to which categories of product mutual recognition applies.
5. The risk for enterprises that their products will not get access to the market of the Member State of destination.
6. The absence of regular dialogues between competent authorities in different Member States.
In its Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the Internal Market Strategy for 2003-2006 [COM(2003)238], the Commission outlined some of the problems related to the implementation of the 'mutual recognition principle' in the non-harmonised area of goods and indicated that the possibility of a new legislative instrument would be examined in order to ensure the free circulation of goods within the European Community.
This proposal is one of the deliverables of the Internal Market Strategy for 2003-2006. Its objective is to define 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. In particular, the proposal concentrates on the burden of proof by setting out the procedural requirements for denying mutual recognition. Moreover, the proposal aims at reducing the risk for enterprises that their products will not get access to the market of the Member State of destination and at enhancing regular dialogues between competent authorities by establishing one or several 'Product Contact Points' in each Member State. Their main task will consist of providing information on technical rules on products to enterprises and to competent authorities in other Member States, as well as providing the contact details of the latter. That will allow public authorities to identify their colleagues in other Member States so that they can easily obtain information from, and start a dialogue with, the competent authorities in other Member States.
- General context
The combination of various information sources (complaints and infringement cases under Article 226 EC Treaty, notifications pursuant to Directive 98/34/EC, surveys, case studies, literature review and the stakeholder consultations) indicates that many problems still surround the implementation of the 'mutual recognition principle', specifically for technically complex products or products which can pose safety or health problems. The Commission has already published interpretative communications setting out how mutual recognition should actually work. It has also organized conferences, seminars and round tables to raise the awareness of businesses and national authorities. It is, however, very difficult to reach businesses through these gatherings, especially when these events are organised across different industrial sectors.
Although current policy has succeeded in eliminating an overwhelming amount of technical barriers without harmonisation measures at EC level, stakeholders indicated that current policy has reached its limits or that it has come to a standstill. Furthermore, the functioning of the mutual recognition principle has been on the political agenda since long. The Internal Market Council of March 1998 stressed the need for political attention to be directed towards the effective application of mutual recognition. It also underscored the direct responsibility of the Member States in this matter. The Council supported the Commission by adopting a Council Resolution on mutual recognition on 28 October 1999.
According to the 'Kok report', the free movement of goods within the EU continues to be hindered by a range of local rules, often applied arbitrarily and in clear contradiction to the mutual recognition principle. The report suggests that such obstacles must no longer be tolerated and that the Commission should treat the removal of these obstacles as a top political priority.
The results of the public consultation on the future of the Internal Market launched by the Commission in April 2006 [SEC(2006)1215 of 20.09.2006] confirm that national technical rules still constitute important barriers to free trade within the EU. Respondents argue that national technical rules still lead to substantial obstacles to the free movement of goods within the EU, and that this causes extra administrative controls and tests.
- Existing provisions in the area of the proposal
There are no existing provisions in the area of the proposal.
- Consistency with the other policies and objectives of the Union
Not applicable.
Consultation methods, main sectors targeted and general profile of respondents
The objective of the stakeholder consultation via the Commission's 'Your Voice in Europe' Internet site was to canvass the opinion of Member States, businesses and consumer organisations on possible options for improving the functioning of mutual recognition in the field of products. 135 replies were received which seems to be the average number of replies for a consultation on a technical issue.
The profile of respondents: representative organisations (22.7%), enterprises (19.7%), public bodies (13.6%) and consumers (31.1%).
According to the replies to the consultation with the stakeholders via the Commission's 'Your Voice in Europe' Internet site, the Commission should do more, inter alia, to improve the functioning of mutual recognition in the non-harmonised area. About 60% of the respondents think that a legislative instrument is necessary whilst about 33% are of the opinion that it is not.
The responses were used for selecting the policy options in the impact assessment.
An open consultation was conducted over the internet from 17/02/2004 to 30/04/2004. The Commission received 135 response(s). The results are available on europa.eu.int/yourvoice/consultations.
- Collection and use of expertise
2There was no need for external expertise.
- Impact assessment
- Option 1: Status quo, i.e. to continue current policy ;
- Option 2: a non-regulatory approach, i.e. to complement current policy with additional actions: the creation of a specific website with a list of products to which mutual recognition applies, a general screening by the Commission and the Member States of all national technical rules on a specific category of products and the identification of national authorities responsible for these rules, the systematic inclusion of the final text of all technical rules notified pursuant to Directive 98/34/EC in the TRIS database, conferences and seminars organised in the Member States and targeted at enterprises and competent authorities, specific publications explaining mutual recognition for specific categories of products, more detailed 'mutual recognition clauses' and administrative cooperation through the existing committees established by secondary EC legislation.
- Option 3: the regulatory approach, i.e. the adoption of a regulation that organises mutual recognition in the non-harmonised field of products and which establishes 'Product Contact Points'. The scope of the regulation would consist of a list of products or aspects of products to which mutual recognition applies. It would define 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. The task of the 'Product Contact Point(s)' in each Member State would consist of providing information on technical rules on products to enterprises and to competent authorities in other Member States, as well as providing the contact details of the latter.
- Option 4: a regulation accompanied by non-legislative actions: Option 4 is based on the regulation set out under option 3, with one major difference: instead of including a list of products or aspects of products to which mutual recognition applies into the scope of the regulation, option 4 creates a website with a list of products to which mutual recognition applies, as set out under option 2.
The Commission carried out an impact assessment listed in the Work Programme, whose report is accessible on ec.europa.eu/enterprise/regulation/goods
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- 2. Grounds for and objectives of the proposal
- 7. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- 8. Consultation of interested parties
- Summary of responses and how they have been taken into account
- 10. Summary of the proposed action
- 12. ADDITIONAL INFORMATION
- 13. Repeal of existing legislation
The proposal tackles two aspects of ensuring the free movement of goods in the non-harmonised area: it lays down the procedure that national authorities have to follow when they intend to impose a national technical rule (i.e. in cases when mutual recognition is not being applied for any reason). The proposal also provides for the establishment of one or more Product Contact Points in each Member State, whose main task is to provide information on the technical rules applicable, or to refer the persons interested to the competent authorities/organisations.
With the adoption of the proposal, the Council Decision 3052/95/EC establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community (OJ L 321, 30.12.1995, p. 1.) has to be repealed.
- Legal basis
Articles 37 and 95 EC.
- Subsidiarity principle
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason(s).
The elimination of technical obstacles to the free movement of goods between Member States cannot be sufficiently achieved by the Member States and can, by reason of the scale of the action, be better achieved at Community level. It is necessary to establish procedures to minimise the possibility that national technical rules create unlawful obstacles to the free movement of goods between Member States. The absence of such procedures in Member States causes additional obstacles to the free movement of goods, since it discourages enterprises to sell their products, lawfully marketed in another Member State, on the territory of the Member State laying down technical rules. Surveys have shown that many enterprises, and in particular small and medium-sized enterprises (SMEs), either adapt their products in order to comply with the technical rules of the Member State of destination, or refrain from marketing them there. National authorities also lack appropriate procedures for applying their technical rules to specific products lawfully marketed in another Member State. The lack of such procedures compromises their ability to assess the conformity of products in accordance with the Treaty.
Few Member States provide for procedures to minimise the possibility that national technical rules creates unlawful obstacles to the free movement of goods between Member States. Given the fact that these obstacles concern in the first place products lawfully marketed in another Member State, Member States do not necessarily have an interest in laying down such procedures.
Community action will better achieve the objectives of the proposal for the following reason(s).
The comments from stakeholders and the review of the situation in Member States reveal that the objective of the elimination of technical obstacles to the free movement of goods cannot be sufficiently achieved by Member States and only Community action can lead to the improvement of the free movement of goods. This proposal respects the subsidiarity principle to the greatest extent, because - if applied correctly - the free movement of goods can be achieved without further harmonisation of national technical rules.
There is legal uncertainty in the Member States concerning the application of the mutual recognition principle, which causes an unpredictable application of the principle and of imposing national technical rules. It results in costs both to enterprises and to society and can lead to reduced trade within the EU by preventing enterprises to enter the market of another Member State. A general framework for the application of national technical rules, where the economic operators concerned can foresee and understand the reasons for the application of a national technical rule to their product is a qualitative indicator that the objectives can be better achieved by the Union.
The proposal defines for the entire EU the rights and the obligations of national authorities on the one hand, and of enterprises who wish to sell their already lawfully marketed product in another Member State on the other hand. The proposal concentrates in particular on the burden of proof by setting out the procedural requirements for denying mutual recognition. The impact assessment shows that there is a gap in the functioning of the free movement of goods in the area covered by the proposal which cannot be solved without a Community legislative action.
The proposal therefore complies with the subsidiarity principle.
- Proportionality principle
The proposal complies with the proportionality principle for the following reason(s).
The scope of the proposal is limited to cases where technical obstacles could arise and do arise and it does not involve the areas where the free movement functions well and where there is no barrier caused by a national technical rule.
The proposal is limited to the most essential provisions to achieve its goal.
Considering that the free movement of goods between Member States is the general principle and its exceptions should be interpreted narrowly, the financial and administrative burden was minimised by limiting the scope of the proposal to cases where technical obstacles could arise and do arise. The proposal will not apply when the free movement functions well and where there is no barrier caused by a national technical rule.
- Choice of instruments
Proposed instruments: regulation.
Other means would not be adequate for the following reason(s).
The form of a Regulation was chosen as the legislative instrument for the envisaged measures because other means would not be adequate. A Regulation seems to be the most appropriate instrument for achieving the objective.The procedural requirements laid down in this proposal are so precise that they can be immediately implemented in national law.
Although the proposal as such has no budgetary implications, the implementation of the regulation will require the establishment of a list of products or aspects of products to which mutual recognition applies and the creation of a website with a list of products to which mutual recognition applies. The establishment of this and the creation of the website will have budgetary implications, which are set out in the legislative financial statement.
The adoption of the proposal will lead to the repeal of existing legislation.
- Review/revision/sunset clause
The proposal includes a review clause.
- Correlation table
The Member States are required to communicate to the Commission the text of national provisions transposing the Regulation as well as a correlation table between those provisions and this Regulation.
- European Economic Area
The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.
- Detailed explanation of the proposal
Articles 2 and 3 define the scope of the proposal, which essentially applies to restrictive decisions taken in respect of any industrially manufactured product or agricultural product, including fish products, lawfully marketed in another Member State, on the basis of a technical rule which is not the subject of harmonisation at Community level, where the direct or indirect effect of that decision is that the product cannot be put on the market in its current form.
Articles 4, 5 and 6 are the core of the proposal, and outline the minimal necessary requirements to be followed by the national authorities before intending to implement a national technical rule (i.e. when mutual recognition is not applied for any reason) in a specific case. The burden of proof is placed on the national authority that is intending to apply a technical rule that restricts the access of the product to the national market.
Articles 7 and 8 define the tasks of the Product Contact Points. Their main task involves providing information on technical rules to enterprises and to the competent authorities of other member States.
Article 9 provides for the possibility to establish a telematics network, in accordance with Decision 2004/387/EC on the interoperable delivery of pan-European eGovernment services to public administrations, businesses and citizens (IDABC).
A reporting scheme is laid down in Article 10.