Last edit: 01/08/2023
The Old Approach reflected the traditional manner in which national authorities drew up technical legislation, going into great detail, usually motivated by a lack of confidence in the rigour of economic operators on issues of public health and safety. That is the way DPR 547/55, the first Italian Health and Safety regulation, was written.
In certain sectors (e.g. legal metrology) this even led public authorities to deliver certificates of conformity themselves. The unanimity required in this field until 1986 made the adoption of such legislation very unwieldy and the continued recourse to this technique in a number of sectors is often justified for reasons of public policy (e.g. food legislation) or by international traditions and/or agreements which cannot be changed unilaterally (e.g. automobile legislation or food again).
The first attempt to break out of this situation came with the adoption of Directive 83/189/EEC on 28 March 1983 setting up an information procedure between the Member States and the Commission to avoid the creation of new technical barriers to the free movement of goods which would take a long time to correct through the harmonisation process.
The Cassis de Dijon case
An important episode in this process towards the free movements of goods inside Europe is represented by the Cassis Dijon Case.
Rewe, a large German retail company, wanted to import and sell Cassis de Dijon, a crème de cassis blackcurrant liqueur produced in France. The liqueur contained between 15 and 20 per cent alcohol by volume (ABV). Germany, however, had a law specifying that products sold as fruit liqueurs be over 25 per cent ABV. The Bundesmonopolverwaltung für Branntwein (Federal Monopoly Administration for Spirits), part of the Federal Ministry of Finance, informed Rewe that it would not be able to market Cassis in Germany as a liqueur.
Rewe challenged the decision as a breach of European law, specifically of Article 30 Treaty of Rome (TEC).
In 1979, the European Court of Justice held that the German legislation represented a measure having an effect equivalent to a quantitative restriction on imports and was thus in breach of article 34 of the Treaty.
The ‘Cassis de Dijon’ case provides the key elements for mutual recognition. The effect of this case law is as follows.
— Products lawfully manufactured or marketed in one Member State should in principle move freely throughout the Union where such products meet equivalent levels of protection to those imposed by the Member State of destination.
— In the absence of Union harmonisation legislation, Member States are free to legislate on their territory subject to the Treaty rules on free movement of goods (Arts 34-36 TFEU).
— Barriers to free movement which result from differences in national legislation may only be accepted if national measures:
- are necessary to satisfy mandatory requirements (such as health, safety, consumer protection and environmental protection),
- serve a legitimate purpose which justifies overriding the principle of free movement of goods, and
- can be justified with regard to the legitimate purpose and are proportionate with the aims.
To help implement these principles, the European Parliament and the Council adopted, in the 2008 goods package, Regulation (EC) No 764/2008 of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision 3052/95/EC.