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 delivered on 27 April 2017, 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? 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. This means that the internal market requires management, in order to sift out and, better still, prevent barriers to inter-State trade which cannot be shown to meet the standards of justification embedded in the conditional pattern of mutual recognition asserted by EU law. The EU's most obvious instrument for controlling intervention of the type pursued by the French authorities is Regulation 764/2008, the (unfortunately named) "Mutual Recognition Regulation", which lays down procedures relating to the application of national technical rules to products lawfully marketed in another Member State. Yet the Regulation is not even mentioned in the questions referred or in the answers given in Noria. This deepens the intrigue attached to this trivial but illuminating ruling.