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- Practical Guide -
Page 16 of 153
2.
Free trade, approximation of legislation and public health
Achievement of the Single Market is associated with the removal of barriers to free trade,
such as tariffs and equivalent taxes, quantitative restrictions to imports, or technical rules
with an equivalent effect, as well as with control of the Members States' funding to national
industries. However, the completion of the Single Market requires many additional issues to
be addressed by the ongoing harmonisation of national legislations.
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Where national laws and regulations aim at protecting the consumer, and when the
Member States recognise each other's measures as equivalent. In this way, they avoid
the tedious task of designing a new and consolidated legislation for the European Union
as a whole and act in agreement with the subsidiarity principle that the Commission
should not legislate on matters satisfactorily handled in national legislation. They
guarantee the free trade in their country of products enjoying legal recognition in
another EC Member State (principle of 'mutual recognition').
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Where existing national norms and technical rules impair the functioning of the Single
Market, whether as a result of deliberate protectionism or differences in cultures or
traditions, the Commission shall propose harmonised regulations. The provision in Art.
95, point 3
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that approximation of national laws must take into account a high level of
protection of health, security and environment, is of great importance to the sector of
materials and articles intended to come into contact with foodstuffs.
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Where a Member State deems it necessary to set out new technical rules (in a broad
meaning, as defined in Dir. 83/189/EEC) to face a new situation, or in a field where no
EU legislation exists, the Member State must notify these rules to the Commission,
which has the duty to check them against the Treaty. These new rules must further
comply with the so-called 'principle of proportionality' now recognised in the European
Court jurisprudence, i.e. their effect must not go beyond the enunciated objective; in
particular, no discrimination or no new barrier to free trade, whether open or disguised,
may result from these measures. The instruments available to the Commission in order
to guarantee free trade are numerous and range from initiating proceedings against the
Member State pursuant to Art. 28, to revising EU legislation;
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In addition, where a Member State believes that measures are required in order to
protect public health, security, human or animal life, according to Art. 28, these new
measures (which may only have a provisional character) must be notified to the
Commission which will investigate them (Art. 95, points 4 and 5)
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; they must also
comply with the 'principle of proportionality'.
3.
Architecture of the legislation on food contact materials
The directives adopted can be divided into three categories:
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Framework Directive 89/109/EEC applicable to all materials and articles
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Art. 95 has been added to the Treaty according to the Single Market Act and takes into account many particularities of the
approximation of the national legislations.
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Art. 95 point 5, also states that the harmonisation measures taken by the Council may include, as appropriate, a 'safeguard clause' as
well as a EU procedure to verify the provisional regulations taken by the Member State pursuant to Art. 30.