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The free movement of goods facilitated through technical harmonization and the principle of mutual recognition is key for the functioning of the single market.
Legislation – What you should know
Harmonization of technical requirements for products
In the case of so-called harmonized products, technical requirements for these products are regulated uniformly by legislation at the EU level. Harmonization is most often carried out by directives, which are then implemented through national legislation. Therefore, in the case of a product for which the requirements are laid down through these directives, free movement within the EU is automatically ensured, as such a product complies with the technical regulations in all Member States.
In practice, problems may arise in determining whether a product is a harmonized or non-harmonized product. A step towards improving this is the requirement laid down in Regulation (EU) 2019/515 of the European Parliament and of the Council on mutual recognition, which obliges the European Commission to keep an indicative list of non-harmonized products.
This list is continuously amended and updated on the Commission's website. The list also contains information on which aspects related to the product are harmonized. Individual types of goods are sorted here according to internationally recognized CN codes. However, this list does not contain an exhaustive list of all non-harmonized products and is for information only.
We recommend that entrepreneurs always contact the Kontaktní místo pro výrobky information point, even in a case where there is doubt whether a product fits into the harmonized or non-harmonized category. For questions concerning construction products you may contact the Kontaktní místo pro stavební výrobky. Regarding harmonized products, it is also possible to contact the Office for Technical Standardization, Metrology and State Testing.
The Non-harmonized sphere and the principle of mutual recognition
The principle of mutual recognition applies to products in the so-called non-harmonized sphere. These are products for which the requirements have not been laid down uniformly by legislation at EU level. According to this principle, Member States may not restrict sale in their territory of products which have been manufactured or placed on the market in another Member State in accordance with its legislation. The protection of legitimate interests such as life, health and safety are ensured to a very similar level in all EU Member States and thus the implication is that if products are safe for consumers in one Member State it must be the case for other Member States as well.
It is therefore not possible to restrict the free movement of products on the grounds that the manufacturer has manufactured the goods in accordance with other technical rules/parameters and achieves the protection of legitimate interests in a way other than that prescribed for local products. Such a measure can only be taken by a state if the public interest recognized by EU law is jeopardized. Regulation (EU) 2019/515 of the European Parliament and of the Council on mutual recognition lays down specific procedural procedures on how the principle of mutual recognition is to be applied by administrative authorities in their decision-making practice. More information can be found on the Ministry of Industry and Trade website.
If necessary, you can contact the Kontaktní místo pro výrobky, which have been set up in all EU Member States and offer free advice on placing products on the EU internal market.
How to contest a decision of public authorities
In case a public authority intends to restrict the free movement of your product, firstly they are obliged to inform you and justify this intention. After that you have at least 15 days to give your comments. However, the relevant supervisory authority may still insist on its decision and may rule to your disadvantage. You can contest this decision several ways.
The decision, which you disagree with, was issued by an administrative authority in an administrative proceeding. General rules for administrative proceedings are contained in the Administrative Code (Act No. 500/2004 Coll.). They are applicable unless a special law states otherwise (exceptional cases).
Appealing against the decision
If the decision has not entered into force yet, you can appeal against it. This must be lodged with the authority, which issued the decision within 15 days from the notification of the decision. You are obliged to give reasons for the appeal, to indicate what you consider illegal or incorrect in the decision or in the proceedings that had preceded it. Further instructions on how to appeal against a decision should always be evident from the decision itself.
Reopening or reviewing the case
If the decision is in force already, you can use extraordinary remedies. You can propose a reopening of the case, especially if new facts or evidence had occurred. However, these facts or evidence must be able to have a significant influence on the decision. You must not have known or could not have known about them during the original proceedings. You can also suggest the decision to be reviewed by the administrative body that issued it. They will review the decision only where reasonable doubts exist that the decision is not in accordance with the law.
Action against the decision
Even if the appeal is not successful, you still have the opportunity to bring an action against the decision of the administrative authority at the competent regional court. This can be done usually within two months from the notification of the decision of the body that decided on appeal. The decision of the court cannot be appealed. In certain exceptional cases, however, it can be challenged at the Supreme Administrative Court.
Going to the European Commission
In addition to national remedies you can also lodge a complaint with the European Commission. The complaint shall be submitted in writing (letter/fax/e-mail), you can use your own language and it is free of charge. For more information visit the website of the European Commission.
You can also choose to use the services of SOLVIT centres. They informally help resolve situations where your rights guaranteed by European law have been violated. You can address SOLVIT in case you decide not to bring an action to the court (if you just appeal in the administrative proceedings, you can still turn to SOLVIT). SOLVIT has no enforcement power nevertheless, the success rate is very high (almost 90 %). It is a quick alternative and it is free of charge.read more
Reference to legal acts
Regulation (EU) 2019/515 of the European Parliament and of the council on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No. 764/2008
Act No. 102/2001 Coll., on General Product Safety and on Amendment to Certain Acts
Act No. 22/1997 Coll., on the Technical Requirements for Products
Act No. 90/2016 Coll., on conformity assessment of products when made available on the market
Compliance date: Last checked at 11.12.2020