The principle of mutual recognition applies in areas of EU legislation not yet harmonised, for example the use of ingredients other than vitamins and minerals in food supplements.
It stems from the principle of the free movement of goods, which allows a product lawfully marketed in one Member State to be permitted entry onto another Member State’s market, even if that product is not strictly in compliance with that Member State’s national legislations – in theory.
In practice, within the various national markets both the authorities and the food sector have wrongly been under the impression that national rules prevail. How to apply the principle of mutual recognition therefore, has not always been clear.
As a result, the European Commission proposed a Regulation on mutual recognition, giving clear rules for both industry and national authorities. This regulation was adopted in 2008 and became aplicable in the EU on 13 May 2009. The Regulation promises to be one of the most significant tools for the food sector in the fight to break down Member State barriers to trade.
The Regulation defines the procedures for companies to follow when facing restrictive ‘technical’ Member State rules which directly or indirectly:
ban their product
prevent the authorisation for the product to be placed on the market
require product modification before it can be allowed on the market
require the withdrawal of a product from the market
It defines the rights and obligations of both the Member States and companies, and sets clear timings for decisions on product entry to the market.
Two additional highlights for the food sector is that the regulation:
puts the burden of proof on the Member State, not the food companies. (In the past, Member States often required the manufacturer to prove that the product was safe, but the regulation now makes clear that it is the responsibility of the Member State to prove that the product is not safe)
aims to establish Product Contact Points with information for companies and national authorities on the technical rules that apply to different products.
Companies must familiarise themselves with this regulation to get a clear understanding of their rights and be able to use it as a tool for dialogue with national authorities. In the past fighting for mutual recognition meant costly, time-consuming legal processes. The new mutual recognition regulation, however, is mandatory, and national rules do not always prevail.