The notification procedure in brief
According to Directive (EU) 2015/1535 Member States must inform the Commission of any draft technical regulation prior to its adoption. Starting from the date of notification of the draft, a three-month standstill period – during which the notifying Member State cannot adopt the technical regulation in question – enables the Commission and the other Member States to examine the notified text and to respond appropriately.
Where it emerges that the notified drafts may create barriers to the free movement of goods or to the free provision of Information Society services or to EU secondary legislation, the Commission and the other Member States may submit a detailed opinion to the Member State that has notified the draft. The detailed opinion has the effect of extending the standstill period by additional three months for products and by additional one month for services. In the event of a detailed opinion being issued, the Member State concerned has to explain the action that it intends to take in response to the detailed opinion.
The Commission and the Member States can also make comments about a notified draft that appears to comply with European Union law but that requires clarification on its interpretation. The Member State concerned shall take such comments into account as far as possible.
The Commission can also block a draft for a period of 12 to 18 months if European Union harmonisation work is to be undertaken or is already underway in the same field.
At the end of the 2015/1535 procedure, the Member States are bound to inform the Commission of final texts as soon as those texts have been adopted and to indicate cases in which the notified draft has been abandoned, in order to allow the 2015/1535 procedure to be closed. This also allows the Commission and other Member States to check whether the notifying State has taken into account the reactions received during the procedure.
Member States are obliged to renotify the draft measure with the application of a new standstill period if the draft technical regulation undergoes substantial changes, such as for instance a shortening of the timetable originally envisaged for implementation or extension of the scope.
The Directive also provides for an urgency procedure, which is designed to allow the immediate adoption of a national draft, subject to certain conditions, i.e. ‘serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants'. The Commission decides on the justification for the urgency procedure as soon as possible. If the request to apply the urgency procedure is accepted by the Commission, the three-month standstill period does not apply and the notified text can be adopted immediately.
There are two very important judgements of the Court of Justice relating to the interpretation of the 2015/1535 procedure. The first one is called ‘CIA-Security’ of 30 April 1996 according to which, a national provision which was not notified under the '98/34 procedure' while it should have been, can be declared inapplicable to individuals by national courts. The second one is called 'Unilever' of 26 September 2000, according to which, a technical regulation, adopted in breach of the obligation to postpone the adoption of a notified national legislation, i.e. to respect the standstill period, can also be declared inapplicable to individuals by national courts.
Notification Procedure Quick Facts
- The draft can be adopted after expiration of the 3 months standstill period
- Extension of the standstill to 6 months for products and 4 months for Information Society services and Voluntary agreements
- The Member State takes into account the detailed opinion and is obliged to reply to it
- Dialogue between the Member State notifying, the Commission and other Member States
- Extension of the standstill to 12 months
- Extension of the standstill to 18 months if the Council adopts a common position during the extended 12 months standstill period