The European Union single market in goods: between mutual recognition and harmonisation

Abstract

The paper explores the European Union's historical, current and possible future approaches to the use of regulatory competition (be it unconditional or subject to some core common rules before leading to mutual recognition) and regulatory harmonisation in the trade in goods in the Single Market. Section 1 describes the ‘long march’ of the European Commission from the ‘Old’ Approach to the ‘New’ Approach to the ‘New Legislative Framework’, a march far from over. It shows that the Old and New Approaches are much less different—and increasingly so—than generally said. Both are a mix of harmonisation and ‘mutual recognition’—the principle according to which goods lawfully produced in one country cannot be banned from sale on the territory of the other country, even if they are produced with different technical or quality specifications. Finally, section 1 describes the shrinking use of mutual recognition by the EC during the last twenty years. Section 2 examines the EC technical regulations policy in the world context with its two very different tracks, the Mutual Recognition Agreements with its large trading partners and the Deep and Comprehensive Free Trade Agreements with its Eastern and Southern neighbours. The concluding section underlines the increasing gap between the current EC policy and what is desirable from the European consumers’ welfare perspective. The EC is increasingly missing the opportunities offered by the mutual recognition principle—an irony since it was the European Court of Justice which created this notion, and a worrisome evolution since it reflects an increasing mistrust among EC Member States (hereafter, ECMS). Finally, the concluding section presents five proposals for reinvigorating the use of the mutual recognition in EC law.