49 Amendments of Morten LØKKEGAARD related to 2017/0354(COD)
Amendment 45 #
Proposal for a regulation
Recital 3
Recital 3
(3) The principle of mutual recognition derives from the case-law of the Court of Justice of the European Union. According to this principle, Member States may not prohibit the sale on their territory of goods which are lawfully marketed in another Member State, even where the goods have been produced or manufactured in accordance with different technical rules. But the principle is not absolute. Member States can oppose the marketing of goods lawfully marketed elsewhere, when such restrictions are justified on the grounds set out in Article 36 of the Treaty or on the basis of other overriding reasons of public interest recognised by the ECJ jurisprudence in relation to the free movement of goods, and which in either case are proportionate to the aim pursued.
Amendment 52 #
Proposal for a regulation
Recital 4
Recital 4
(4) The concept of overriding reasons of public interest is an evolving concept developed by the Court of Justice in its case-law in relation to Articles 34 and 36 of the Treaty. This concept covers, inter alia, the effectiveness of fiscal supervision, the fairness of commercial transactions, protection of consumers, protection of the environment, the maintenance of press diversity and the risk of seriously undermining the financial balance of the social security system. Such overriding reasons, where legitimate differences exist from one Member State to another,Where legitimate differences exist from one Member State to another, such overriding reasons may justify the application of national rules by the competent authorities. However, such decisions need to be always duly justified, andthoroughly explained, and in full respect with the principle of proportionality must always be respected, regard being had to whether the competent authority has in fact made the least restrictive decision possible. In order to improve the functioning of the single market for goods, the Commission and the Member States should initiate, as part of this Regulation, an ongoing process of assessing whether national rules are fit for purpose and do not create disproportionate non-tariff barriers. Furthermore, administrative decisions restricting or denying market access in respect of goods lawfully marketed in another Member State must not be based on the mere fact that the goods under assessment fulfil the legitimate public objective pursued by the Member State in a different way from the way that domestic goods in that Member State fulfil that objective.
Amendment 53 #
Proposal for a regulation
Recital 4 a (new)
Recital 4 a (new)
(4a) In order to assist Member States in their task to justify restrictions to the principle of mutual recognition, the Commission should provide guidance on the concept of overriding reasons of public interest and how to apply the principle of mutual recognition.
Amendment 55 #
Proposal for a regulation
Recital 7
Recital 7
(7) Regulation (EC) No 764/2008 has several shortcomings, and should therefore be revised and strengthened. For the sake of clarity, Regulation (EC) No 764/2008 should be replaced by this Regulation. This Regulation should establish clear procedures to ensure the free movement to goods lawfully marketed in another Member State and to ensure that free movement can be restricted only where Member States have duly justified legitimate public interest grounds for doing so and the restriction is proportionate. It ensures that existing rights and obligations deriving from the mutual recognition principle are observed, by both economic operators and national authorities.
Amendment 59 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) To raise awareness and improve the application of the principle of mutual recognition, Member States are urged to insert in their national technical regulations clear and unambiguous 'single market clauses', which ensure that goods lawfully marketed in one Member State are presumed to be compatible with the national technical rules of another Member State.
Amendment 61 #
Proposal for a regulation
Recital 15
Recital 15
(15) The evidence required to demonstrate that goods are lawfully marketed in another Member State varies significantly from Member State to Member State. This causes unnecessary burdens delays and additional costs for economic operators, while preventing national authorities from obtaining the information necessary for assessing the goods in a timely manner. This may inhibit application of the mutual recognition principle. It is therefore essential to make it easier for economic operators to demonstrate that their goods are lawfully marketed in another Member State. Economic operators should be able to benefit from a process of self-declaration, which should provide competent authorities with all necessary information on the goods and on their compliance with the rules applicable in that other Member State. The use of the voluntary declaration does not prevent national authorities from taking a decision restricting market access, on the condition that such a decision is proportionate, duly justified and respects the mutual recognition principle and this Regulation.
Amendment 71 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to enhance the efficiency and competitiveness of businesses operating in the non-harmonised area, it should be possible to benefit from new information technologies for the purposes of facilitating the provision of the mutual recognition declaration. Therefore, economic operators should be able and encouraged to make their declaration available online.
Amendment 74 #
Proposal for a regulation
Recital 20 a (new)
Recital 20 a (new)
(20a) The Commission should ensure that a template for the Mutual Recognition Declaration and relevant guidelines to complete the declaration are made available on the Single Digital Gateway in all of the official languages of the Union.
Amendment 75 #
Proposal for a regulation
Recital 22
Recital 22
(22) Where producers decide not to make use of the mutual recognition declaration mechanism, it should be forthe competent authorities of the Member State tomay request thespecific and clearly defined information that it considers necessaryindispensable for the assessment of the goods, taking due accounin full respect of the principle of proportionality.
Amendment 79 #
Proposal for a regulation
Recital 22 a (new)
Recital 22 a (new)
(22a) The economic operator should be given appropriate time within which to submit documents or any other information requested by the competent authority of the Member State of destination, or to present any comments or arguments in relation to the assessment of the goods in question.
Amendment 81 #
Proposal for a regulation
Recital 23
Recital 23
(23) Directive (EU) 2015/1535 of the European Parliament and of the Council requires Member States to communicate to the Commission and to the other Member States any draft national technical regulation concerning any product, including agricultural and fish products, and a statement of the grounds which make the enactment of that regulation necessary. It is necessary, however, to ensure that, following the adoption of such a national technical regulation, the principle of mutual recognition is correctly applied in individual cases to specific goods. This Regulation should lay down procedures for the application of the mutual recognition principle in individual cases by, for example, requiring Member States to indicate the national technical rules on which the administrative decision is based and the legitimate public interest ground justifying the applicable national technical rule on which the administrative decision is justifibased. This requirement does not, however, oblige Member States to justify the national technical rule itself, but rather the application of that national technical rule with respect to a product lawfully marketed in another Member State. The proportionality of the administrative decision should always be demonstrated by means of a case-by case evaluation.
Amendment 87 #
Proposal for a regulation
Recital 25
Recital 25
(25) While a competent authority is assessing goods before deciding whether or not it should deny or restrict market access, it should not be able to take decisions suspending market access, except where rapid intervention is required to prevent harm to safety and health of users or to prevent the goods being made available where the making available of such goods is generally prohibited on grounds of public morality or public security, including for example the prevention of crimein a situation where under normal or reasonably foreseeable conditions of use, the goods may pose a serious risk, including one where the effects are not immediate, which should require rapid intervention by the competent authority.
Amendment 91 #
Proposal for a regulation
Recital 30
Recital 30
(30) Any administrative decision taken by competent authorities of Member States pursuant to this Regulation should specify the remedies available so that an economic operator can appeal the decision or bring proceedings before the competent national court or tribunal. The administrative decision should also refer to the possibility of economic operators to use the SOLVIT network and to have access to the problem- solving procedure provided for in this Regulation.
Amendment 94 #
Proposal for a regulation
Recital 33
Recital 33
(33) The SOLVIT system has provedthe potential to be an effective non-judicial, problem- solving mechanism that is, provided free of charge. It works under short deadlines and provides practical solutions to citizens and businesses when they are experiencing difficulties with their Union rights being recognised by public authorities. Ther efore, economic operators should have to rely on SOLVIT first before the problem-solving mechanism under this Regulation can be triggered. Where the economic operator, the relevant SOLVIT centre and the involved Member States in question all agree on the appropriate outcome, no further action should be requiredfectiveness of the problem-solving procedure, introduced by this Regulation is based on the SOLVIT system and depends great deal on its efficient performance. To ensure the enhanced performance of the SOLVIT system, Member States and the Commission should urgently take all the necessary measures to equip the national SOLVIT centres with adequate resources and to bring increased awareness, especially amongst businesses regarding the existence and benefits of SOLVIT.
Amendment 95 #
Proposal for a regulation
Recital 34
Recital 34
(34) The economic operators should always rely on SOLVIT as a first measure before the problem-solving mechanism under this Regulation can be triggered. Where the economic operator, the relevant SOLVIT centre and the involved Member States in question all agree on the appropriate outcome, no further action should be required. However, where the SOLVIT's informal approach fails, and serious doubts remain regarding the compatibility of the administrative decision with the mutual recognition principle the Commission should be empowered to look into the matter and provide an assessment to be taken into account by the competent national authorities at the request of any of the SOLVIT centres or an economic operator. The Commission's intervention should be subject to a reasonable time-limit, in compliance witwo-months’ time-limit. The 30 days period does not include the the European Code of Good Administrative Behaviour. ime necessary for receiving the additional information that might be deemed necessary.
Amendment 109 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
The aim of this Regulation is to strengthen the functioning of the internal market by improving the application of the principle of mutual recognition.
Amendment 120 #
Proposal for a regulation
Article 3 – paragraph 1 – point 12
Article 3 – paragraph 1 – point 12
(12) 'legitimate public interest ground' means any of the grounds set out in Article 36 of the Treaty or any other overriding reasons of public interest recognised by the European Court of Justice in relation to Articles 34 and 36 of the Treaty.
Amendment 137 #
Proposal for a regulation
Article 4 – paragraph 2 – subparagraph 2
Article 4 – paragraph 2 – subparagraph 2
The declaration shall be completed in one of the official languages of the Union and, where that language is not the language required by the Member State of destination, it shall be translated by ththe declaration may always be economic operators into the language or languages required by the Member State of destinationmpleted and submitted in English.
Amendment 140 #
Proposal for a regulation
Article 4 – paragraph 2 – subparagraph 2 a (new)
Article 4 – paragraph 2 – subparagraph 2 a (new)
The Commission shall ensure that a template for the Mutual Recognition Declaration and relevant guidelines to complete the declaration are made available on the Single Digital Gateway in all the official languages of the Union.
Amendment 144 #
Proposal for a regulation
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Economic operators shall ensure that the declaration is kept up to date at all times toby reflecting any changes in the information provided by them in the declaration. The competent authority shall give reasonable time to economic operators for such an update, when necessary.
Amendment 145 #
Proposal for a regulation
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4a. The economic operator may provide the declaration up to 10 working days after the request has been made from the competent authorities.
Amendment 146 #
Proposal for a regulation
Article 4 – paragraph 5
Article 4 – paragraph 5
5. The mutual recognition declaration may be supplied to the competent authority of the Member State of destination for the purposes of an assessment to be carried out under Article 5. It may be supplied either in paper form or by electronic means. or be made available online.
Amendment 148 #
Proposal for a regulation
Article 4 – paragraph 6 – introductory part
Article 4 – paragraph 6 – introductory part
6. EWhere economic operators may make the declaration available on a website, provided thatline, the following conditions arshall be satisfied:
Amendment 152 #
Proposal for a regulation
Article 4 – paragraph 7 – point a
Article 4 – paragraph 7 – point a
(a) the declaration, together with any evidence reasonably required by the competent authority to verifyand the evidence supporting the information contained in it, shall be accepted by the competent authority as sufficient to demonstrate that the goods are lawfully marketed in another Member State; and
Amendment 154 #
Proposal for a regulation
Article 4 – paragraph 7 – point a a (new)
Article 4 – paragraph 7 – point a a (new)
(aa) the economic operator may provide the information up to 10 working days after the request has been made by the competent authorities;
Amendment 155 #
Proposal for a regulation
Article 4 – paragraph 7 – point a b (new)
Article 4 – paragraph 7 – point a b (new)
(ab) refusal to accept a declaration shall be considered a breach of the free movement of goods and the Commission shall act accordingly;
Amendment 161 #
Proposal for a regulation
Article 4 – paragraph 8 – point a
Article 4 – paragraph 8 – point a
(a) any relevant and indispensable information concerning the characteristics of the goods or type of goods in question;
Amendment 165 #
Proposal for a regulation
Article 4 – paragraph 8 – point b
Article 4 – paragraph 8 – point b
(b) any relevant and indispensable information on the lawful marketing of the goods in another Member State;
Amendment 170 #
Proposal for a regulation
Article 4 – paragraph 8 – point c
Article 4 – paragraph 8 – point c
(c) any other information the competent authority considers usefulindispensable for the purposes of its assessment, for which due justification shall be provided.
Amendment 171 #
(c) any other information the competent authority considers usefulnecessary for the purposes of its assessment.
Amendment 177 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Where, as part of their market control activities, a competent authority of athe Member State has doubts as regards goods which the economic operator claimof destination has reasonable and duly justified doubts as to whether goods that are made available or are going to be made available on its market are lawfully marketed in another Member State, the competent authority shall contact the competent authority of that other Member State and the relevant economic operator without delay and shall carry out an assessment the goods.
Amendment 181 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. In carrying out assessments under paragraph 1, the competent authorities of Member States shall take due account ofaptly respect the content of test reports or certificates issued by a conformity assessment body and provided by any economic operator as part of the assessment. Competent authorities of Member States shall not refuse certificates or test reports issued by a conformity assessment body accredited for the appropriate field of conformity assessment activity in accordance with Regulation (EC) No 765/2008 on grounds related to the competence of that body, no matter where the conformity assessment body is established.
Amendment 185 #
3. Where, on completion of an assessment under paragraph 1, the competent authority of a Member State takes an administrative decision with respect to the goods, it shall communicate its decision withiout delay and no later than 210 working days to the relevant economic operator referred to in paragraph 1, to the Commission and to the other Member States. Notification to the Commission and to the other Member States shall be done by means of the system referred to in Article 11.
Amendment 189 #
Proposal for a regulation
Article 5 – paragraph 5 – point b
Article 5 – paragraph 5 – point b
(b) the legitimate public interest ground on which the decision is justified and which the national technical rule referred to in point (a) seeks to protect;
Amendment 194 #
Proposal for a regulation
Article 5 – paragraph 5 – point e
Article 5 – paragraph 5 – point e
(e) the evidence demonstrating that the decision is appropriate for the purpose of achieving the objective pursued and that it does not go beyond what is necessary in order to attain that objective including how less restrictive means to achieve the objective regarding that product have been considered.
Amendment 196 #
Proposal for a regulation
Article 5 – paragraph 6
Article 5 – paragraph 6
6. The administrative decision referred to in paragraph 3 shall clearly specify the remedies available under the law in force in the Member State concerned, how economic operators may avail themselves from these remedies, and the time limits applicable to those remedies, and it shall also include a reference to the procedure under Article 8.
Amendment 197 #
Proposal for a regulation
Article 5 – paragraph 7
Article 5 – paragraph 7
7. The administrative decision referred to in paragraph 3 shall not take effect before it has been notified to the relevant economic operator and to the Commission under that paragraph.
Amendment 200 #
Proposal for a regulation
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. While the competent authority of a Member State is carrying out an assessment of goods pursuant to Article 5, it shall not temporarily suspend the making available of those goods on the domestic market in that Member State, except in one or the other of the following situations:a situation where under normal or reasonably foreseeable conditions of use, the goods may pose a serious risk, including one where the effects are not immediate, which should require rapid intervention by the competent authority
Amendment 202 #
Proposal for a regulation
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
Amendment 206 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
Amendment 211 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The competent authority of the Member State shall immediately notify the relevant economic operator, the Commission and the other Member States of any suspension pursuant to paragraph 1. The notification to the Commission and other Member States shall be made by means of the system referred to in Article 11. In cases falling within point (a) of paragraph 1 of this Article, tThe notification shall be accompanied by a reasoned technical or scientific justification demonstrating whythat the case is considered to fall within that pointgoods may pose a serious risk, and shall be communicated also to the economic operator.
Amendment 212 #
Proposal for a regulation
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. If the administrative decision referred to in Article 5 or the temporary suspension referred to in Article 6 is also a measure which is required to be notified through RAPEX as referred to in the General Product Safety Directive 2001/95/EC, a separate notification to the Commission and to the Member State under this Regulation is not required, provided that the following conditions are met:
Amendment 216 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. This Article applies if an economic operator affected by an administrative decision has submitted the decision to the Internal Market Problem Solving Network (SOLVIT) and, during the SOLVIT procedure, the Home Centre, the Lead Centre or economic operator asks the Commission to give an opinion to assist in solving the case. The Commission may also give an opinion on its own initiative.
Amendment 218 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The Commission shall, within three moout undue delay, consider the documenths of receipt of the request referred to in paragraph 1, enter into communication with the relevant economic operator or operators and the competent authorities who took the administrative decision in order to assessand information provided within the SOLVIT procedure in order to assess the compatibility of the administrative decision with the principle of mutual recognition and this regulation. Where addition information is needed for the purposes of the assessment referred to above, the cCompatibility of the administrative decision with the principle of mutual recognition and this Regulationmission shall without undue delay enter info communication with the relevant economic operator or operators and the competent authorities.
Amendment 225 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Following completion of its assessment, the Commission mayWithin 30 days of receipt of the request referred to in paragraph 1, the Commission shall complete its assessment and issue an opinion identifying concerns that should, in its view, be addressed in the SOLVIT case and, where appropriate, making recommendations to assist in solving the case. The 30 days period does not include the time necessary for receiving the additional information and documents as provided for in paragraph 2.
Amendment 231 #
Proposal for a regulation
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. Where, during the assessment referred to in paragraph 2, the Commission is informed that the case is solved, it may decide not to issue an opinion.
Amendment 233 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. The Commission's opinion shall be consideredmmunicated to all parties involved in the case as well as to the market surveillance authorities within the meaning of Regulation (EC) No765/2008 by means of the system referred to in Article 11. The opinion shall be taken into account during the SOLVIT procedure referred to in paragraph 1.
Amendment 241 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. Product Contact Points shall respond within 157 working days of receiving any request under paragraph 3.
Amendment 256 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. By (…), and every fivetwo years thereafter, the Commission shall carry out an evaluation of this Regulation against the objectives it pursues and shall submit a report thereon to the European Parliament, to the Council and to the European Economic and Social Committee.