Abstract
The EU has promoted the mutual recognition of national administrative acts and therefore helped provide extraterritorial effectiveness to the administrative decisions of the Member States. This phenomenon has been carried out in the EU through secondary legal norms, in areas where the EU has intense competence or powers. These community norms of secondary legislation are an expression of the principle of mutual recognition, which has been the axis around which the EU internal market has been built.
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Notes
- 1.
Communication from the Commission “Mutual recognition in the context of the follow-up of the action plan for the single market” (COM (1999) 299 final).
- 2.
Ibidem.
- 3.
Council Resolution of 28 October 1999 on mutual recognition [Official Journal C 141 of 19/5/2000].
- 4.
Specifically there exist mutual recognition agreements between the EU and Australia, Canada, New Zealand and the United States of America.
- 5.
Communication from the Commission “Mutual recognition in the context of the follow-up of the action plan for the single market” (COM (1999) 299 final).
- 6.
Council Resolution of 24 June 1999 on the management of agreements on mutual recognition [Official Journal C 190 of 7/7/1999].
- 7.
Bocanegra Sierra and García Luengo, “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 15.
- 8.
Sentence by the Court of Justice of 22 January 2002, Canal Satélite Digital SL, case C-390/99, section 36.
- 9.
The lack of mutual trust in the acts of the other Member States has been one of the most prominent obstacles for the free rendering of services in the EU (Communication from the Commission “Mutual recognition in the context of the follow-up of the action plan for the single market” (COM (1999) 299 final).
- 10.
It has been highlighted by the reports of Germany (Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective), Italy (Della Cananea, Giacinto, From the recognition of foreign acts to trans-national administrative procedures) or USA (Reitz, J., Recognition of Foreign Administrative Acts in the United States).
- 11.
Bocanegra Sierra and Sierra Luengo understand, correctly, that regulatory dumping “(…) clearly distorts the principle of equality and the public interests at stake, with the de facto result of the establishment of a downward harmonization, by using the processing and regulation of the less demanding State in the protection of public interests” (“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 27).
- 12.
Communication from the Commission “Mutual recognition in the context of the follow-up of the action plan for the single market” (COM (1999) 299 final).
- 13.
It has been highlighted by national reports from Germany (Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective.) or Greece (Douga, A. E., On the recognition of foreign administrative acts in Greece.).
- 14.
Council Resolution of 28 October 1999 on mutual recognition (Official Journal C 141, 19/05/2000).
- 15.
Without being exhaustive, we quote below a list of Community secondary legislation based on a model of mutual recognition that specifies the conditions of extraterritorial effectiveness of certain administrative acts:
-
Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC; Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications.
-
Directive 1999/5/CE of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity; Directive 2002/46/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to food supplements; Regulation No. 258/97 of the Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients.
-
Regulation No 883/2004 on the coordination of social security systems; Regulation No 987/2009 laying down the procedure for implementing Regulation No 883/2004 on the coordination of social security systems; Regulation No. 1231/2010 extending Regulation (EC) No. 883/2004 and Regulation No. 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality.
-
Directive 2001/40/CE of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals.
-
Council Framework Decision 2002/584/JHA of 13 June 2002 on European arrest warrant and surrender procedures between Member States.
-
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties.
-
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.
-
Directive 2006/126/CE of the European Parliament and the Council of 20 December 2006 on driving licenses.
-
Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures and the implementation of Regulation 1189/2011 of 18 November 2011; Council Directive 2011/16 of 15 February 2011 on administrative cooperation in the field of taxation.
-
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on Access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.
-
Regulation No 952/2013, of 9 October 2013, laying down the Union Customs Code.
-
- 16.
Bocanegra Sierra and García Luengo informs of the “inevitable need, imposed by reality itself, of the existence of this figure and of its legal delimitation and construction (“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 13).”
- 17.
Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective.
- 18.
This is the case of the authorisations for credit activities (D. 2013/36), driving licenses (D. 2006/126), the decision for the marketing of food ingredients (R. 258/97) or decisions on the use and marketing of biocides (R. 528/2012).
- 19.
Ibidem.
- 20.
The German reporter alludes in this case to a real transnational effect (Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective).
- 21.
“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 20 et seq.
- 22.
Bocanegra Sierra and García Luengo state that these type of acts “affect the sovereignty of the country that “receives” the act in a more intense manner, whereby it is not easy to find examples of these assumptions”. The authors use as an example the transfer of waste (idem, pp. 20 and 21). An example of transnational decisions of this type can be seen in Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on the shipment of waste. This norm establishes a notification procedure that requires that the competent authorities of the countries affected by the shipment (country of dispatch, country of transit and country of destination) give their consent prior to any shipment. The countries of destination and of transit adopt decisions that have effects in other territories and for people who reside in another country.
- 23.
Under this type of assumption, Bocanegra Sierra and García Luengo point out that it is “(…) difficult to identify assumptions for transnational acts in the strict sense, because the Administration’s trans-border activity usually has a fundamentally material nature (for example, the hot pursuit of a presumed criminal by the State’s police within the territory of a neighbouring State) or because they are procedural activities to be carried out for the adoption of an administrative act within the State itself (such as information activities or as proof that they are performed abroad as part of an administrative file)” (idem, pp. 21 and 22).
- 24.
The Regulation on mutual recognition was included in the EEA Agreement by virtue of the Joint Committee Decision of EEA Agreement No. 126/2912, of 13 July 2012 which modified annex II (Technical regulations, Standards, Testing and Certification) of EEA Agreement (DI L 309 of 8 November 2012).
- 25.
The obligation to apply the principle of mutual recognition to products lawfully manufactured and/or marketed in Turkey is based on Articles 5–7 of Decision 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (OJ L 35 of 13 February 1996), which provide for the elimination of measures having an effect equivalent to quantitative restrictions between the EU and Turkey. Although the principle of mutual recognition also applies to EU-Turkey relations, the Mutual Recognition Regulation as such does not (Commission Working Document. Guidance document. The concept of ‘lawfully marketed’ in the Mutual Recognition Regulation (EC) No. 764/2008, COM(2013) 592 final, Brussels, 16/8/2013, p. 5).
- 26.
Communication from the Commission to the European Parliament and the Council, First Report on the application of Regulation (EC) No. 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State, COM (2012) 292, 15/06/2012, p. 5.
- 27.
Commission interpretative communication on facilitating the access of products to the markets of other Member States: the practical application of mutual recognition [C/2003/3944- Official Journal C 265 of 4/11/2003].
- 28.
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, establishes a system for mutual recognition for national authorisation to financial institutions and of the supervision systems. This norm enables “the granting of a single licence recognised throughout the Union”.
- 29.
Directive 2006/126/CE of the European Parliament and the Council of 20 December 2006 on driving licenses. Article 2 establishes that “driving licences issued by Member States shall be mutually recognised”.
- 30.
Regulation (EC) No. 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients envisages that, if there is no opposition by another Member State or by the European Commission, or if a complementary evaluation is not necessary, the decision regarding the marketing of these products by a Member State will be effective in the entire EU territory (Art. 4). See article 4 et seq. of Regulation (EC) No. 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients
- 31.
Regulation (EU) 528/2012, of 22 May, on the marketing and use of biocides establishes that the biocides authorised by a Member State, as per the procedure envisaged by this norm, “may be marketed in all the Member States without the need for mutual recognition”, provided that the owner fulfils the requirement of communicating his intention of marketing the product in the domestic market, and uses the official languages in the labelling (Art. 27.1).
- 32.
Therefore, this is the case of Regulation (EU) 528/2012, of 22 May, on the trading and use of biocides.
- 33.
This is what is contemplated by Regulation 258/97 concerning novel foods and novel food ingredients (Art. 7).
- 34.
Bocanegra Sierra, R., García Luengo, J., “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 16.
- 35.
Bocanegra and García Luengo consider that it is “hard to believe that these degrees constitute transnational acts in the strict sense, given the general need to subject the degree to a recognition process as a prior requirement to be able to exercise the profession” (“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 18).
- 36.
Nevertheless, the applicant must hold a training qualification obtained in another Member State that attests to a level of training at least equivalent to the level immediately below that required in the host Member State.
- 37.
On the other hand, it must taken into account that the Directive considers specific automatic recognition systems for degrees for specific professions, such as doctor, nurse, dentist, veterinary surgeon, midwife, pharmacist and architect, or qualifications attested by professional experience in certain industrial, craft and commercial activities.
- 38.
Bocanegra Sierra, R., García Luengo, J., “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 16.
- 39.
Della Cananea, Giacinto, From the recognition of foreign acts to trans-national administrative procedures.
- 40.
Idem.
- 41.
Douga, A. E., On the recognition of foreign administrative acts in Greece.
- 42.
Ibidem. Also Reitz, J. Recognition of Foreign Administrative Acts in the United States. See also Bocanegra Sierra, García Luengo, “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 25.
- 43.
Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective.
- 44.
Ibidem.
- 45.
STJUE of 10 September 1996, Commission/Kingdom of Belgium, case C-11/95, note. 37. This sentence includes a settled case-law of the Court. See the following sentences cited in the mentioned case: of 13 November 1964, Commission/Luxembourg and Belgium, joined cases 90/63 and 91/63; of 25 September 1979, Commission/France, 232/78, note 9; and of 23 May 1996, Hedley Lomas, C-5/94, section 20.
- 46.
Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective.
- 47.
Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective.
- 48.
Bocanegra Sierra, García Luengo, “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 24.
- 49.
In this case the competent authorities of destination may review the issued administrative act in accordance with its case with the provisions contained in the applicable Community rules.
- 50.
Bocanegra Sierra and Garcia Luengo point out “(…) given that the figure of transnational administrative act satisfies the demands of various fundamental liberties, it is reasonable to permit a certain modulation of the effective judicial protection, although, in all circumstances, the essential content of the Law in question, must be respected, in such a way that its satisfaction is fully ensured in those countries whose resolutions susceptible of affecting third countries must have immediate effectiveness in Spain” (“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 24).
- 51.
Idem, p. 20 et seq.
- 52.
Idem, p. 26.
- 53.
Bocanegra Sierra and García Luengo consider that “this is so because if the act could be arraigned by each national legislation and the organs of each State, the actual purpose of the transnational effectiveness (avoid the multiplication of procedures and contradictory resolutions) could become completely blurred if the act is declared effective by certain judicial systems and ineffective by others” (idem, p. 23)
- 54.
On this matter see Bocanegra Sierra and García Luengo, “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 28 et seq. In Spain, although the issue of transnational administrative act has not been analysed in depth by the doctrine, a debate has arisen by the analysis of the extraterritorial efficiency of the administrative acts of the Autonomous Regions, particularly after the approval of Law 20/2013 on Warranty of the Spanish Market Unit. On this matter see Alonso Mas, M. J., El nuevo marco jurídico de la unidad de mercado, Comentario a la Ley de Garantía de la unidad de mercado, La Ley, 2014.
- 55.
“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 28.
- 56.
Bocanegra Sierra and García Luengo distinguish between transnational and trans-territorial administrative acts, the latter in the area of federated States (“Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008, p. 11).
- 57.
Griffiths, J., Recognition of foreign administrative acts: report from Australia.
- 58.
Della Cananea, Giacinto, From the recognition of foreign acts to trans-national administrative procedures.
- 59.
Stelkens, U., Mirschberger, M., The recognition of foreign administrative acts: a German perspective.
- 60.
Lopes, Dulce, Report on the recognition of foreign administrative acts.
- 61.
We quote the following: Regulation (EU) No. 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the marketing and use of biocides; Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms; Directive 2009/54/EC of 18 June 2009 of the European Parliament and of the Council on the exploitation and marketing of mineral waters; Regulation No. 1013/2006 of the European Parliament and the Council of 14 June 2006 on the shipment of waste.
- 62.
Della Cananea, Giacinto, From the recognition of foreign acts to trans-national administrative procedures.
Bibliography
Bocanegra, Sierra and García Luengo, “Los actos administrativos transnacionales”, Revista de Administración Pública, No. 177, Madrid, September–December, 2008.
National Reports
Della Cananea, Giacinto. From the recognition of foreign acts to trans-national administrative procedures.
Douga, A. E., On the recognition of foreign administrative acts in Greece.
Griffiths, J., Recognition of foreign administrative acts: report from Australia.
Lopes, Dulce, Report on the recognition of foreign administrative acts.
Reitz, J. Recognition of Foreign Administrative Acts in the United States.
Stelkens, U., Mirschberger, M. The recognition of foreign administrative acts: a German perspective.
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Pernas García, J.J. (2016). The EU’s Role in the Progress Towards the Recognition and Execution of Foreign Administrative Acts: The Principle of Mutual Recognition and the Transnational Nature of Certain Administrative Acts. In: Rodríguez-Arana Muñoz, J. (eds) Recognition of Foreign Administrative Acts. Ius Comparatum - Global Studies in Comparative Law, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-18974-1_2
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