Why There Is No ‘Principle of Mutual Recognition’ in EU Law (and Why that Matters to Consumer Lawyers)

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Lately both the Court and the Commission have taken to referring to the principle of mutual recognition in the law of the EU’s internal market. But there is no principle of mutual recognition in the law of the EU’s internal market. There is only a principle of non-absolute or conditional mutual recognition. Put another way, EU law does not require Member States to admit on to their market products or services that comply with the regulatory requirements of the State of origin. Instead EU law requires Member States to show good reasons in the public interest when they wish to refuse admission to such products or services. Internal market law includes space for justified trade barriers. The Court and the Commission are probably not trying to re-write the law of the EU’s internal market. The Court and the Commission are probably just being a bit sloppy and a bit lazy. But such imprecision carries risk. An over-emphasis in internal market law on the impetus towards the liberation of cross-border trade at the expense of the regulatory sensitivities of individual Member States carries the risk that deregulation-by-law will be driven too deep—more deeply than the Treaty envisages. And that same overemphasis on market deregulation also carries the risk of loading too much weight on to the judicial means to construct an internal market—the law of free movement—at the expense of the supplementary role performed by the EU’s legislative process, most prominently in the name of harmonisation. So recognition that there is no principle of mutual recognition in the law of the EU’s internal market is important in grasping the legitimate place of both Statelevel and EU-level regulation in the building of that market.