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Bartels, Lorand --- "The legality of the EU mutuL recognition clause under WTO law" [2006] ELECD 419; in Shuibhne, Nic Niamh (ed), "Regulating the Internal Market" (Edward Elgar Publishing, 2006)

Book Title: Regulating the Internal Market

Editor(s): Shuibhne, Nic Niamh

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420338

Section: Chapter 12

Section Title: The legality of the EU mutuL recognition clause under WTO law

Author(s): Bartels, Lorand

Extract:

12. The legality of the EC mutual
recognition clause under WTO law
Lorand Bartels

INTRODUCTION
One of the cornerstones of the internal market is the principle of mutual recog-
nition of goods, according to which the technical legislation of European
Union (EU) Member States must allow the marketing of goods lawfully manu-
factured or marketed in another EU Member State, provided that the goods
provide an equivalent level of protection of the various legitimate interests
involved. With the conclusion of the EEA Agreement and the EC­Turkey
customs union, this principle has, with some variation, now been extended to
goods originating in the European Economic Area (EEA) and Turkey. The
European Commission (the Commission), a keen supporter of mutual recog-
nition, has sought to implement the principle by insisting that EU Member
States insert a `mutual recognition clause' in their technical legislation.
The purpose of this chapter is to examine whether the Commission's model
of the mutual recognition clause poses any problems under World Trade
Organization (WTO) law. The difficulty is that this clause, if implemented, gives
a preference to goods of EEA/Turkish origin compared to goods of other origin,
which prima facie violates the non-discrimination provisions of the General
Agreement on Tariffs and Trade (GATT 1994) and the Agreement on Technical
Barriers to Trade (TBT Agreement).1 Consequently, when a mutual recognition
clause is contained in Member State legislation, the EC (representing that
Member State in the WTO) may be in breach of its WTO obligations. ...


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