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

Procedures

  • Intervals

  • The Directive lays down, in Article 9, very strict intervals between the communication of a draft technical regulation and its adoption. The initial 3-month interval may be extended to 6 months if a Member State or the Commission issues a detailed opinion. The interval is extended to 12 months if the Commission announces its intention to propose or adopt a directive, regulation or decision or announces its finding that the draft technical regulation concerns a matter which is covered by a proposal for a directive, regulation or decision, and to 18 months if the Council adopts a common position.

    The Directive does not stipulate any interval between the adoption of a technical regulation and its entry into force. The only provision in this respect is contained in the third subparagraph of Article 8(1) of the Directive which lays down the obligation for renotification when the draft technical regulation undergoes substantial changes, such as a shortening of the timetable originally envisaged for implementation.

    The Agreement lays down, in Articles 2.9.4 and 5.6.4, that a reasonable time must be allowed for other Members to make comments and, in Articles 2.12 and 5.9, that Members shall allow a reasonable interval between the publication of technical regulations or requirements concerning conformity assessment procedures and their entry into force.

    The TBT Committee has recommended allowing a minimum period of 60 days for comments and has encouraged the extension of this period to 90 days. The interval between the publication of a text and its entry into force should be 6 months.

  • Reactions

  • Under the Directive, Member States and the Commission may issue reactions to announced drafts in the form of comments and detailed opinions. Comments are sent when the announced draft, although in accordance with Community law, raises interpretation issues or needs to be clarified in terms of its methods of implementation.

    Detailed opinions are sent when the draft is incompatible with the principles of the EC Treaty on the free movement of goods (or services) or when it infringes a Community harmonisation directive, regulation or decision. The issuing of a detailed opinion leads to an extension of the standstill period and also imposes an obligation on the Member State in question to report to the Commission on the follow-up it intends to give to this opinion.

    The Directive also imposes the obligation on Member States to communicate the definitive texts. This allows the Commission and other Member States to check whether the notifying State has taken into account the reactions received during the procedure.

    Under the Agreement, Members may only issue comments on notified drafts and request a discussion on these comments. The notifying Member must take account of the comments received and the results of discussions.

    The Agreement does not lay down an obligation to communicate the definitive texts. However, it does stipulate that Members shall publish or otherwise make available technical regulations and conformity assessment procedures adopted.

  • Urgency

  • The Directive and Agreement both lay down special procedures for urgent situations.

    The Directive (Article 9(7)) allows a technical regulation to be adopted only after notification of the draft and invocation of the urgency procedure. The Commission must give an opinion on this. In a case of urgency, the standstill periods fixed in Article 9 of the Directive do not apply.

    Depending on the urgency, the Agreement allows, in Articles 2.10 and 5.7, whichever steps of the notification procedure listed in Articles 2.9 and 5.6 to be omitted as necessary.

    The grounds for invoking the urgency procedure are similar. However, the Directive seems stricter as it specifies that Member States may invoke the urgency procedure only in the event of serious and unforeseeable circumstances.

    Consequence of non-compliance with obligations

    In accordance with the case-law of the Court of Justice, non-compliance with the notification obligation and also non-compliance with the obligation to respect the standstill periods laid down by the Directive lead to the unenforceability of the technical regulation in question.

    Non-compliance with the notification obligation in the Agreement comes under the international responsibility of the WTO Member. However, no panel has been requested to form to date solely on the grounds of non-compliance with the notification obligation under the Agreement. In fact, as notification procedures allow the comments of WTO Members to be taken into account, disputes on the content of technical regulations are avoided.

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