Trade & Customs- European Union.Background
On February 14 2007 the European Commission announced Communication 2007/35 proposing a broad package of measures to ensure the smoother functioning of the European Union's internal market for goods. The package may make it easier for EU companies to trade their products within the European Union and for exports to the European Union to circulate more freely between member states.
The commission intends to address national technical rules that constitute significant barriers to free trade and continue to represent substantial obstacles to the free movement of goods within the European Union, resulting in additional burdensome administrative controls and tests for enterprises. In addition, the commission intends to address the various shortcomings of the 'CE' marking, which provides assurance that the product has fulfilled all necessary regulatory requirements.
Considering the many barriers to free trade remaining within the European Union, the commission has proposed the following initiatives which may be relevant to businesses.
Regulation on National Technical Rules
The proposed regulation aims to achieve greater transparency in exchanges of information between enterprises and national authorities. It also aims to improve efficiency by avoiding duplication of checks and testing, while allowing member states to maintain a high level of environment and consumer protection.
Furthermore, this proposal addresses the burden of proof by setting out the procedural requirements to be followed when a product is denied market access. It establishes that the member state of destination must justify in writing the precise technical or scientific reason for its intention to refuse the product access to the national market. All economic operators, including manufacturers, distributors and importers, will be entitled to defend their cases before the relevant authorities.
Regulation on Accreditation and Market Surveillance
Some of the rules and procedures governing the internal market for goods are acknowledged as excessively burdensome for enterprises, causing unnecessary administrative costs and legal inconsistencies in their application. Although originally designed to improve on health and safety considerations, technical regulations can also become instruments for market protectionism.
It is recognized that the illegal application of such rules represents a significant barrier to trade, with the commission noting in one survey that approximately 35% of enterprises reported problems with technical rules in another member state.
Several factors explain why such rules are not applied or are applied incorrectly. Firstly, rules on the conformity assessment of products should be made significantly less complicated for enterprises. Currently some products must undergo various procedures to meet the requirements of several different directives. In some cases manufacturers must obtain approval from different testing bodies to have the same product certified under different directives.
For example, certain bicycles produced in small numbers cannot be put on the market in certain member states because the rules applicable to bells, brakes and lights differ. Another example refers to the barriers imposed by one member state requiring the testing of clothes' chemical reactions when exposed to human sweat and saliva. In this case a national distributor considered that there was no immediate positive benefit from the testing completed exclusively for this member state and decided not to sell children's clothing in this country. Therefore, the commission proposes that all national accreditation authorities should be organized at European level. This would allow the certificates and test reports to be uniform and readily accepted throughout the European Union.
Secondly, market surveillance legislation is not implemented consistently throughout the European Union. National authorities lack the necessary means to apply market surveillance efficiently because they are allegedly constantly confronted with new challenges such as the increasing number of third-country imports and new products on the market. The consequence is that unsafe products enter the market, bringing health and financial risks to consumers.
The commission proposes, therefore, to establish an equivalent level of market surveillance throughout the European Union using a common legal framework which would allow national authorities flexibility to take domestic conditions into account while establishing specific minimum requirements for operation. The commission also foresees the extension of existing cooperation mechanisms. Furthermore, it aims to improve the traceability of products and clarify the obligations for all economic operators.
The commission hopes that unsafe or non-compliant products will be more easily identifiable and will ultimately be removed from the entire EU market.
Common Legal Framework for Industrial Products
A common framework would encompass simple, common definitions and procedures for the marketing of industrial products and serve as a tool for future legislation. These measures would have an impact on 22 industrial sectors, including:
Improvements are also proposed for goods that do not specifically fall under EU legislation.
In parallel with this proposal, the commission intends to improve the understanding of the CE marking, concerning which there is confusion among many traders both within and outside the European Union. Consequently, a number of products bearing the CE marking do not, in fact, comply with the legislation. The commission proposes that the CE marking should be registered as an EU-wide trademark. This new protection should allow public authorities to take rapid and efficient action against abuses. It should also protect businesses respectful of the rules against competition from rogue traders which put the CE marking on products that do not offer the level of protection required in Europe.
One of the priorities of the commission is to facilitate the free movement of goods by the simplification and modernization of internal market rules and principles. In order to benefit from these measures, enterprises must understand their legal obligations and increase recourse to legal expertise in order to implement the law properly. Businesses targeting the European Union to sell their goods should therefore examine the proposals carefully, or seek legal advice, if they believe that they will or could be affected by the future regulations and decision.
International Law Office | 
