Mutual recognition

REGULATION (EC) No 764/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9 July 2008
laying down procedures relating to the application of certain national technical rules to products lawfully
marketed in another Member State and repealing Decision No 3052/95/EC (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:218:0021:0029:en:PDF)



Mutual recognition
 

When „non-harmonised products” (animals, plants, food, furniture, tobacco, precious metals, pharmaceutical products, fertilisers, etc.) are exported, one should bear in mind that in many EU Member States such products are subject to the technical rules of the relevant Member State.
A non-exhaustive list of such products may be found on the European Commission's website http://ec.europa.eu/enterprise/intsub/a12/index.cfm?fuseaction=a12.menuproducts



 










Introduction
 

The internal EU market comprises an area without internal frontiers, in which the free movement of goods is ensured
under the Treaty on the Functioning of the European Union (TFEU), which prohibits measures having effects
equivalent to quantitative restrictions on imports. That prohibition covers any national measure which is capable of
hindering, directly or indirectly, actually or potentially, intra-Community trade in goods.
 
Member States' competent authorities may, in the absence of harmonisation of legislation, unlawfully create obstacles
to the free movement of goods between Member States by applying to products lawfully marketed in other Member
States, technical rules laying down requirements to be met by those products, such as rules relating to designation, f
orm, size, weight, composition, presentation, labelling and packaging. The application of such rules to products lawfully marketed in another Member State can be contrary to Articles 34 and 36 of TFEU.
 
Principle of mutual recognition
 

One of the means of ensuring the free movement of goods within the internal market is the principle of mutual
recognition, which derives from the case-law of the Court of Justice of the European Communities. The principle is
regulated by the Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying
down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State. The Regulation applies only to products or particular features of products which are not subject to
Community harmonisation measures intended to eliminate obstacles to trade between Member States resulting from
the existence of divergent national technical rules.
 
According to that principle, a Member State may not prohibit the sale on its territory of products which are lawfully
marketed in another Member State, even where those products were manufactured in accordance with technical
rules different from those to which domestic products are subject. The only exceptions to that principle are restrictions
which are justified on the grounds set out in Article 36 of TFEU, i.e. prohibitions or restrictions on imports, exports or
goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or
the protection of industrial and commercial property. However, such prohibitions or restrictions must not constitute a
means of arbitrary discrimination or a disguised restriction on trade between Member States, and must be
proportionate to the aim pursued.
 
Scope
 

Regulation 764/2008 applies to administrative decisions addressed to economic operators, whether taken or intended,
on the basis of a technical rule in respect of any product, including agricultural and fish products, lawfully marketed in
another Member State, where the direct or indirect effect of that decision is the prohibition of the placing on the market
of that product or type of product; the modification or additional testing of that product or type of product before it can
be placed or kept on the market; or the withdrawal of that product or type of product from the market.
 
The Regulation does not apply to decisions of a judicial nature taken by national courts or tribunals; decisions of a
judicial nature taken by law enforcement authorities in the course of the investigation or prosecution of a criminal
offence as regards the terminology, symbols or any material reference to unconstitutional or criminal organisations or offences of a racist or xenophobic nature.
 
Definition of technical rule
 

A technical rule is any provision of a law, regulation or other administrative provision of a Member State which is not
the subject of harmonisation at Community level; and which prohibits the marketing of a product or type of product in
the territory of that Member State or compliance with which is compulsory when a product or type of product is
marketed in the territory of that Member State, and which lays down:
 
a) the characteristics required of that product or type of product, such as levels of quality, performance or safety, or dimensions, including the requirements applicable to the product or product type as regards the name under which
it is sold, terminology, symbols, testing and test methods, packaging, marking or labelling; or
 
b) any other requirement which is imposed on the product or type of product for the purposes of protecting
consumers or the environment, and which affects the life-cycle of the product after it has been placed on the market,
such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the
composition, nature or marketing of the product or type of product.
 
Relationship with other provisions of Community law
 

Regulation 764/2008 does not apply to systems or interoperability constituents falling within the scope of
Directives 96/48/EC and 2001/16/EC and in the case of measures taken by the authorities of the Member States
pursuant to Article 8(1)(d) to (f) and Article 8(3) of Directive 2001/95/EC; Article 50(3)(a) and Article 54 of
Regulation (EC) No 178/2002; Article 54 of Regulation (EC) No 882/2004; Article 14 of Directive 2004/49/EC.

 
Technical rules for particular (non-harmonised) products in the Republic of Croatia
 
List of national regulations for products subject to national rules (Under Construction)