Principle of mutual recognition

The principle of mutual recognition, enshrined in Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union, provides for the prohibition of all restrictions on trade that have an effect equivalent to quantitative restrictions on imports. This group of restrictions also includes national technical requirements for product characteristics, product labelling, quality requirements and similar. Practice has shown that EU Member States often take measures of this kind to protect or prohibit the placing on their markets of these types of product, despite the fact that they have been lawfully placed on the markets of other EU Member States.

As early as 1979, the Court of Justice of the European Union adopted its first judgment in the field of mutual recognition. This was the well-known Cassis de Dijon case, where the Court found that such a practice was unacceptable. The more than 30 years of case law following the Court’s first ruling in the field of mutual recognition provided the basis for the drafting of a European Community Regulation laying down procedures for the application of certain national technical rules to products lawfully marketed in another EU Member State.

This regulation provides for the enforcement of procedures regarding the conduct of public authorities when they wish to prohibit the resale of a product in order to prove that its specific national requirements are justified. The means of communication between the public authority (usually the competent inspectorate) and the business operator concerned are also clearly defined. In accordance with this procedure, there is a period of 20 days in which a public authority must, after obtaining the relevant information on the characteristics of the product and the legal justification for placing the product in question on the market of another EU Member State, make a decision justifying the withdrawal of the product from its market. One legitimate reason for such a decision includes the public interest, such as the protection of the environment, health, human beings, animals and plants, public morals and so on. Moreover, any such decision must be proportionate to its objective.

The regulation also provides for the establishment of product contact points, one in each EU Member State. In Slovenia, this contact point is the Slovenian Institute for Standardization (SIST), which makes it easier for companies to do business by providing information free of charge. The contact point communicates information on products for which national technical requirements exist to the applicant within 15 working days. In addition, the contact point provides information on whether products require prior authorisation to be placed on the market, information on the national authority responsible for technical regulations, and information on how to resolve any disagreements between the authorities and the business operator.

Despite the entry into force of the regulation, the principle of mutual recognition does not work as well as it should. A new regulation on the mutual recognition of goods was adopted to make the principle work more swiftly, straightforwardly and clearly in practice. It entered into force on 19 April 2020. In order to bolster the principle of mutual recognition, the new regulation provides for the strengthening of the network of product contact points, which facilitates communication between authorities and businesses and provides them with often highly technical information on product rules and procedures. The new regulation strengthens cross-border cooperation between contact points, as well as the links between competent authorities in each EU Member State, through the online ‘single digital gateway’ platform. In addition, the new regulation introduces a voluntary mutual recognition declaration that can be completed by business operators. In this declaration, the business operator voluntarily provides information on the national legislation with which the product complies, thus enabling it to be sold elsewhere in the EU. The aim of this declaration is to simplify the collection of product conformity information and to reduce the associated administrative burden. Another important component of the new regulation is the problem-solving procedure, which allows business operators to use the SOLVIT mechanism (free-of-charge resolution of problems for citizens or businesses in the EU internal market) if they experience problems accessing a market. If this fails, the Commission may issue an opinion and make recommendations to assist the parties to come to an agreement.

Preventing technical barriers to trade

The notification of new, non-harmonised technical regulations to EU Member States and the World Trade Organization is done in accordance with the Decree on notification procedures in the field of standards, technical regulations and conformity assessment procedures. The decree lays down the obligations, working methods and cooperation of the competent ministries and the Slovenian Institute for Standardization in carrying out notification procedures under EU rules in accordance with the Directive laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, and with the international rules adopted under the Technical Barriers to Trade Agreement, which is part of the Marrakesh Agreement establishing the World Trade Organization. The contact point providing administrative support for notifications operates within the Slovenian Institute for Standardization (for technical regulations) and the Ministry of Agriculture, Forestry and Food (for sanitary and phytosanitary measures).

The notification procedure under the Decree on notification procedures in the field of standards, technical regulations and conformity assessment procedures enables the national non-harmonised technical rules that EU Member States intend to introduce for industrial, agricultural and fishery products and for information society services to be scrutinised before they are adopted. The aim is to ensure that these texts are brought into line with EU law and with the basic principles of the internal market. It also applies in a simplified form to the EFTA Member States that are parties to the European Economic Area Agreement, and to Switzerland and Turkey.

The notification procedure is published at Product Contact Point (PCP).