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 Comparaison between the notification procedures established by Directive 98/34/EC and the TBT Agreement.

Introduction

Within the Community legal system, Directive 98/34/EC (the Directive) represents a priority instrument at the service of the Internal Market. It provides for a notification system allowing Member States and the Commission to become acquainted with proposed national regulations and to check these to ensure that they are compatible with Community law, in particular with the EC Treaty principles on the free movement of goods, the free provision of services and the freedom of establishment (the last two aspects in relation to the notification of measures on Information Society services). As an instrument of transparency and control, the Directive is also valuable for identifying the harmonisation needs at Community level.

The Agreement on Technical Barriers to Trade (the Agreement) is the main international instrument adopted to date in the field of technical regulations. It aims to ensure that regulations, standards and testing and certification procedures do not create unnecessary obstacles to international trade. It provides for a notification procedure intended to allow all WTO Members to become acquainted with the technical regulations and conformity assessment procedures envisaged by other Members.

Even though these stem from the same philosophy (prevention of obstacles to trade), given the totally different legal contexts in which they sit the two notification procedures have major differences, particularly in terms of the efficiency of the control established and the consequences of non-compliance with the obligations arising from these.

Criteria for notification

According to the Directive, any technical regulation on products must be announced. The only exceptions to the notification obligation are those set out in Article 10.

The Directive does not contain any "de minimis" rule. Accordingly, each technical regulation is notifiable, whatever its impact on intra-Community trade.

The Directive also considers that even a measure which complies with relevant international standards, where observance of this is compulsory, is liable to create obstacles to trade. According to Article 10, only provisions by means of which Member States fulfil the obligations arising out of an international agreement, which result in the adoption of common technical specifications within the Community, need not be announced.

On the other hand, the Agreement lays down the obligation to announce a technical regulation or conformity assessment procedure only if the following two conditions are met:

there are no relevant international standards (for technical regulations) or no relevant guides and recommendations issued by an international standardising body (for conformity assessment procedures) or the technical content of a proposed technical regulation or proposed conformity assessment procedure is not in accordance with relevant international standards or relevant guides and recommendations issued by an international standardising body;

the technical regulation or conformity assessment procedure may have a significant effect on trade of other Members.

Regulations issued by regional authorities.

A technical regulation adopted by a regional authority must be announced under the Directive. According to the latter, to be qualified as a technical regulation, a regulation must be compulsory in nature for the marketing or use of a product in a Member State or in a major part of this State. A list of authorities subject to the notification obligation has been established.

The Agreement also provides for, in Articles 3 and 7, the announcement of technical regulations and conformity assessment procedures of local governments on the level directly below that of central government.

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