The Legality of the EC Mutual Recognition Clause Under WTO Law

One of the cornerstones of the EC internal market is the principle of mutual recognition of goods, according to which the technical legislation of EU Member States must allow the marketing of goods lawfully manufactured 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 EC-Turkey customs union, this principle has, with some variation, now been extended to goods originating in the EEA and Turkey. The European Commission, a keen supporter of mutual recognition, has sought to implement the principle by insisting that EU Member States insert a lsquo;mutual recognition clause' in their technical legislation. The purpose of this article is to examine whether the Commission's model mutual recognition clause poses any problems under 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). 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