Volume 50 (2013) / Issue 5
This paper attempts to reconcile the principle of assimilation with the principle of mutual recognition with respect to third country goods entering the EU. It argues that third country goods in free circulation should benefit from the principle of mutual recognition when imported into other Member States if those goods are marketable in any one of the Member States. Following the principle of assimilation, such goods should be able to rely on Article 34 TFEU "without distinction" between goods of EU origin and third country origin. Mutual recognition, on the other hand, allows traders to challenge indistinctly applicable product rules if goods are "lawfully produced and marketed in another Member State". This article assesses four different ways of reconciling these two principles. The article argues that the preferred option is to allow goods in free circulation that are "lawfully marketable" in another Member State to benefit from the presumption of equivalence that follows from mutual recognition when those goods are imported into another Member State. This is the least trade restrictive way to achieve the fundamental purpose of mutual recognition: subjecting goods within the EU internal market, as much as possible, to only one set of technical regulations, not two or zero. If goods of third country origin can be marketed in one Member State according its technical rules, those goods should be presumed to meet equivalent standards set by the Member State of importation. The burden of proof should be on the Member State seeking to apply its technical rules to the imported products in question to demonstrate their necessityin light of public interest requirements.
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