L_2008218EN.01002101.xml
| 13.8.2008 | EN | Official Journal of the European Union | L 218/21 |
REGULATION (EC) No 764/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 9 July 2008
laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 37 and 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
| (1) | The internal market comprises an area without internal frontiers, in which the free movement of goods is ensured under the Treaty, which prohibits measures having effects equivalent to quantitative restrictions on imports. That prohibition covers any national measure which is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade in goods. |
| (2) | Obstacles to the free movement of goods between Member States may be unlawfully created by the Member States' competent authorities applying, in the absence of harmonisation of legislation, to products lawfully marketed in other Member States, technical rules laying down requirements to be met by those products, such as rules relating to designation, form, size, weight, composition, presentation, labelling and packaging. The application of such rules to products lawfully marketed in another Member State can be contrary to Articles 28 and 30 of the Treaty, even if they apply without distinction to all products. |
| (3) | The principle of mutual recognition, which derives from the case-law of the Court of Justice of the European Communities, is one of the means of ensuring the free movement of goods within the internal market. Mutual recognition applies to products which are not subject to Community harmonisation legislation, or to aspects of products falling outside the scope of such legislation. According to that principle, a Member State may not prohibit the sale on its territory of products which are lawfully marketed in another Member State, even where those products were manufactured in accordance with technical rules different from those to which domestic products are subject. The only exceptions to that principle are restrictions which are justified on the grounds set out in Article 30 of the Treaty, or on the basis of other overriding reasons of public interest and which are proportionate to the aim pursued. |
| (4) | Many problems still exist as regards the correct application of the principle of mutual recognition by the Member States. It is therefore necessary to establish procedures to minimise the possibility of technical rules' creating unlawful obstacles to the free movement of goods between Member States. The absence of such procedures in the Member States creates additional obstacles to the free movement of goods, since it discourages enterprises from selling their products, lawfully marketed in another Member State, on the territory of the Member State applying technical rules. Surveys have shown that many enterprises, in particular small and medium-sized enterprises (SMEs), either adapt their products in order to comply with the technical rules of Member States, or refrain from marketing them in those Member States. |
| (5) | Competent authorities also lack appropriate procedures for the application of their technical rules to specific products lawfully marketed in another Member State. The lack of such procedures compromises their ability to assess the conformity of products in accordance with the Treaty. |
| (6) | The Council Resolution of 28 October 1999 on mutual recognition (3) noted that economic operators and citizens did not always make full and proper use of the principle of mutual recognition because they were not sufficiently aware of the principle and its operational consequences. It called upon the Member States to develop appropriate measures in order to provide economic operators and citizens with an effective framework for mutual recognition, inter alia, by dealing effectively with requests from economic operators and citizens and by replying rapidly to those requests. |
| (7) | The European Council of 8 and 9 March 2007 underlined the importance of giving fresh impetus to the internal market in goods by strengthening mutual recognition, while guaranteeing a high level of safety and consumer protection. The European Council of 21 and 22 June 2007 stressed that the further strengthening of the four freedoms of the internal market (the free movement of goods, persons, services and capital) and improving its functioning remain of paramount importance for growth, competitiveness and employment. |
| (8) | The smooth functioning of the internal market in goods requires adequate and transparent means of solving the problems that result from applying technical rules of a Member State to specific products lawfully marketed in another Member State. |
| (9) | This Regulation should not prejudice further harmonisation of technical rules, where appropriate, with a view to improving the functioning of the internal market. |
| (10) | Trade barriers may also result from other types of measures falling within the scope of Articles 28 and 30 of the Treaty. Those measures may, for example, include technical specifications drawn up for public procurement procedures or obligations to use official languages in the Member States. However, such measures should not constitute technical rules within the meaning of this Regulation and should not therefore fall within its scope. |
| (11) | Technical rules within the meaning of this Regulation are sometimes applied during and by means of mandatory prior authorisation procedures, established by the law of a Member State and in accordance with which, before a product or type of product may be placed on that Member State's market or on a part thereof, the competent authority of that Member State should give its formal approval following an application. The existence of such procedures in itself restricts the free movement of goods. Therefore, in order to be justified with regard to the fundamental principle of the free movement of goods within the internal market, a mandatory prior authorisation procedure should pursue a public-interest objective recognised by Community law, and should be non-discriminatory and proportionate; that is to say, it should be appropriate to ensure achievement of the aim pursued but not go beyond what is necessary in order to achieve that aim. The compliance of such a procedure with the principle of proportionality should be assessed in the light of the considerations set out in the case-law of the Court of Justice. |
| (12) | A requirement that the placing of a product on the market be subject to prior authorisation should, as such, not constitute a technical rule within the meaning of this Regulation, so that a decision to exclude or remove a product from the market exclusively on the grounds that it does not have valid prior authorisation should not constitute a decision to which this Regulation applies. When, however, an application for such mandatory prior authorisation of a product is made, any intended decision to reject the application on the basis of a technical rule should be taken in accordance with this Regulation, so that the applicant could benefit from the procedural protection which this Regulation provides. |
| (13) | Decisions of national courts or tribunals assessing the legality of cases in which, on account of the application of a technical rule, products lawfully marketed in one Member State are not granted access to the market of another Member State, or applying penalties, should be excluded from the scope of this Regulation. |
| (14) | Weapons are products that can constitute a serious risk to the health and safety of persons and to the public security of Member States. Several specific types of weapons lawfully marketed in one Member State might, on grounds of the protection of the health and safety of persons and the prevention of crime, be subject to restrictive measures in another Member State. Such measures might consist of specific controls and authorisations before weapons lawfully marketed in one Member State are placed on the market of another Member State. Member States should therefore be permitted to prevent weapons being placed on their markets until their national procedural requirements are fully met. |
| (15) | Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (4) specifies that only safe products may be placed on the market and lays down the obligations of producers and distributors with respect to the safety of products. It entitles the authorities to ban any dangerous product with immediate effect or, for the period needed for the various safety evaluations, checks and controls, to ban temporarily a product that could be dangerous. It also entitles the authorities to take the necessary action to apply with due dispatch appropriate measures such as those referred to in Article 8(1)(b) to (f) thereof, in the case of products posing a serious risk. Therefore, measures taken by the competent authorities of the Member States pursuant to national laws adopted in implementation of Article 8(1)(d) to (f) and Article 8(3) of that Directive should be excluded from the scope of this Regulation. |
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