The Principle of Mutual Recognition: It Doesn't Work Because It Doesn't Exist
Noria Distribution Srl, a judgment of the First Chamber of the Court of Justice delivered on 27 April 2017 (Case C-672/15), appears trivial. The company had been prosecuted in France for supplying products which were not authorised; the Court found a violation of EU law because the relevant French law offered the company no adequate procedures through which to challenge this impediment to its commercial activity. And it is trivial. That, however, is where the interest lies. How can such a straightforward and obvious blockage to the functioning of the internal market be cluttering up the courts in 2017, a quarter of a century since the EU’s internal market was supposed to be complete? My paper explains that the reasons lie in the structure of EU free movement law – most of all, that there is no principle of mutual recognition, but rather only a conditional or non-absolute principle of mutual recognition. EU law disciplines national regulatory autonomy by requiring that a Member State must justify a restriction on inter-State trade and also demands that intervention be open to challenge, but it does not demand that goods and services marketed in one Member State shall be automatically entitled to release on to all other markets.
The model of conditional or non-absolute mutual recognition has benefits. Where national measures are found to be unjustified, the EU internal market is opened up to trade in diverse products, thereby advancing consumer choice without the need for harmonised EU standards. The promise is of a relatively lightly regulated market: unjustified national measures are simply set aside, not replaced, whereas EU measures are confined to areas where national regulation is justified. But there are costs too. According to the model of non-absolute or conditional mutual recognition a trader is expected to press the public authorities in his or her target market to set aside obstructive rules and, if they do not, to commit time and money to litigation, albeit with no firm expectation of victory given that there is always room for the public authorities to try to justify their rules. Some traders do this: Noria did. But we do not know how many traders give up in the face of such daunting obstacles to the development of an integrated commercial strategy for the entire EU.
The issue here is whether a functioning internal market can be built and maintained in the absence of a State-like institutional and constitutional infrastructure at European level. Can this market, founded on an optimistic assumption of administrative co-operation across borders coupled to litigation driven by traders, be effectively managed? The EU’s most obvious instrument for controlling intervention of the type pursued by the French authorities in the Noria case is Regulation 764/2008, the (unfortunately named) ‘Mutual Recognition Regulation’ which lays down procedures that should be followed when national technical rules are applied to imported products which have been lawfully marketed in another Member State. It is meant to improve the practical management of the internal market. Yet the Regulation is not even mentioned in the questions referred nor in the answers given in Noria. The paper explains that the meagre evidence available shows the Regulation is little used and largely ignored. The paper shows that there are improvements to be made to the practical detail of the Regulation’s regime, and it muses too on whether the Court might be tempted to borrow from case law in analogous areas and to insist that national measures taken in defiance of the procedural demands of the Regulation should be treated as devoid of legal effect. This could sharpen incentives for Member States to stick to the rules of the internal market game. However, the paper’s main point is to warn that one should be carefully attentive to the persistingly incomplete nature of the internal market and, most of all, to grasp that the elegant beauty of the EU’s model which mandates that public authorities shall tolerate regulatory regimes that differ from their own, subject only to the exceptional possibility that a sufficient justification may be found for insisting on compliance with local rules, is sometimes cold comfort to the trader faced by local bureaucratic intransigence. There is no principle of mutual recognition!
Stephen Weatherill is the Jacques Delors Professor of European Law at the University of Oxford.