Marketing fertilisers in Europe Paris, 9 September 2009
Practical implementation of Articles 28, 30 and 95 Harmonised legislation guarantees that goods are Article 95 compliant. (Harmonised area) Mutual recognition is a method for ensuring free movement of goods in the non-harmonised area within the EU (Art 28 and 30) Concept developed in the Cassis de Dijon judgement of the Court of Justice (case 120/78)
TREATY ETABLISHING THE EUROPEAN COMMUNITY (EC Treaty) FREE MOVEMENT OF GOODS Article 28 (general rule) Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. Article 30 (safeguard clause) The provisions of Articles 28 and 29 shall not preclude 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. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
Problems with Mutual Recognition for products in the non-harmonised area 1. Lack of awareness of the principle (businesses and administrations) 2. Legal uncertainty about: a) the scope of the principle and b) the burden of proof (businesses and administrations) 3. Risk of not getting access to market in another Member State (businesses) 4. The absence of dialogue between authorities (administrations)
(Regulation )
Summary of the Regulation Denial of mutual recognition becomes the exception. Definition of rights and obligations: Burden of proof on receiving Member State Tight deadlines for receiving Member State Product Contact Points in Member States will provide information to enterprises and competent authorities
Mutual recognition = basic rule (EC Treaty) Both actual and possible denial of mutual recognition governed by Regulation Possible denial of mutual recognition? Obligation for national authorities to start dialogue with the economic operator and to follow the procedural requirements established by the Regulation
Possible denial of mutual recognition: procedure Step 1: MS intends to adopt decision to deny MR Written notice to economic operator Specifying the technical rule Setting out technical or scientific evidence: that the intended decision is justified by overriding reason of public interest; that no less trade-restrictive measure can be taken Intended decision must be based on the characteristics of the product or type of product in question.
Possible denial of mutual recognition Step 2: economic operator can submit comments within time limit set out in written notice Step 3: assessment of comments (if any) Step 4: decision by public authorities
Possible denial of mutual recognition Competent authorities must: Immediately inform economic operator and Provide technical or scientific justification for their decision on the grounds of Article 30 of the EC Treaty
Competent authority fails to notify a negative decision within period of 20 (+possibly another 20) working days: Presumption of lawful marketing (Article 6(4))
Product Contact Points Member States must designate at least one Product Contact Point and inform EC & MS Member States are free to entrust the role of Product Contact Point to new or existing private or public bodies Tasks: to be performed upon request and free of charge within 15 working days
Tasks: Product Contact Points Provide technical rules applicable to a specific type of product in that Member State Advise whether the product is subject to prior authorisation Give contact details of the competent authorities Describe remedies generally available in the national territory in the event of a dispute between competent authorities and economic operators
Preliminary authorisation Mandatory requirements by a MS prior to the placing on the market Interpretation of recitals 11 and 12 Not a technical rule (Cf. recital 12) as such but rather a condition for the placing on the market MS may withdraw from the market a product not subject to prior authorisation Operator should enquire about the existence of technical rules or preliminary authorisation not covered by 764R2008 and in place in the MS of destination. The final decision by the MS of destination should be in conformity with 764R2008 so that operators may benefit from the its legal procedures.
Regulation will apply from 13 May 2009 Find the text of the Regulation on: http://eur-lex.europa.eu/lexuriserv/lexuriserv.do?uri=oj:l:2008:218:0021:0029:en:pdf For more information please visit: http://ec.europa.eu/enterprise/regulation/goods/mutrec_en.htm Questions: entr-mutual-recognition@ec.europa.eu
The mutual recognition principle applied to growing media, soil improvers, organo-mineral fertilisers Mutual recognition is the current solution for growing media, soil improvers and organo-mineral fertilisers Mutual recognition could provide an interim solution pending harmonised legislation EN standards exist so that harmonised legislation is feasible. Possibility for exclusion from the scope of 764R2008: - Harmonisation - Modification of the scope of 764R2008 by codecision under justifications based under Art 30.