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European Commission’s guidance on the free movement of goods

In March, the European Commission adopted three guidance documents to ensure smooth functioning of the free movement of goods principle

– one of the four fundamental freedoms of the Union. Restrictions on the free movement of goods in the context of the current pandemic have been disrupting the well-functioning of the single market, hence these guidances are welcomed to help economic operators fully harness the single market of goods.

The first of the documents adopted is the Guidance on the implementation of the 2019 Regulation on Mutual Recognition for businesses, supplemented by a summary.The principle of mutual recognition implies that goods lawfully marketed in one of the Member States must be considered as compliant also in another Member State, regardless of whether they are actually compliant with the national technical rules of the destination country. The principle applies to both non-harmonized goods and non-harmonized aspects of goods, however it is also subject to exceptions.

As a manufacturer, you can benefit from the principle of mutual recognition if the good is “lawfully marketed” in a Member state, given either of the following criteria is fulfilled:

a. First option:

  • The goods comply with the relevant national technical rules applicable in the Member State of origin; and
  • The goods are made available to end users in that Member State.

Both criteria need to be met for the goods to fall under the mutual recognition principle.

b. Second option:

  • The goods are not subject to any national technical rule in the Member State of origin; and
  • The goods are made available to end users in that Member State.

The guidance offers further clarifications on the mutual recognition declaration for operators, the assessment of goods for national authorities, the support services provided, etc.

The second document adopted by the European Commission are the Guidelines for economic operators and market surveillance authorities on the practical implementation of Article 4 of Regulation (EU) 2019/1020 on market surveillance and compliance of products.Unlike the mutual recognition regulation, it is applicable to products that are regulated at a EU level.

In essence, Article 4 sets out that, for certain products placed on the EU market, including through online platforms, there must be an economic operator based in the EU. Upon request, it shall provide  the authorities with information, or take certain actions, applicable from 16 July 2021.

The products that fall under Article 4 requirements include, amongst others, goods falling under the legislation covering:

  • Safety of toys;
  • Electrical equipment;
  • Radio equipment;
  • Electromagnetic compatibility;
  • Restricting hazardous substances in electrical and electronic equipment (‘RoHS’);
  • Construction products;
  • Machinery;
  • Equipment for use in potentially explosive atmospheres (ATEX);
  • Pressure equipment;
  • Etc.

Who can act as an economic operator in the EU, as referred by Article 4?

  • A manufacturer established in the EU;
  • An importer, where the manufacturer  is  not established in the Union;
  • An Authorized Representative who has a written mandate from the manufacturer designating  it to perform the tasks set out in Article 4(3) on the manufacturer’s behalf – here is where Obelis can help you! Find out more here.
  • A fulfillment service provider established in the EU, where there is no manufacturer, importer or Authorized Representative established in the Union.

The guidance further explains the duties of the economic operators under Article 4 and the risks of non-compliance.

The third published document is the Guide on Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU), aiming to provide a better understanding of the application of the most crucial treaty articles on the free movement of goods, in the light of the relevant CJEU’s jurisprudence. It also touches upon the case law on the principle of mutual recognition and the aforementioned Mutual Recognition Regulation.

All three documents seek to strengthen the single market’s rules under the Single Market Enforcement Action Plan,and help Europe’s economic recovery.

Andra Perv

Regulatory Affairs department

06.05.2021

Are you a non-EU manufacturer wishing to place your products on the EU market in compliance with Article 4 of the Regulation (EU) 2019/1020?

Obelis, acting as professional European Authorized Representative for more than 30 years will gladly assist you!

Contact us today!

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References:

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