Preventing technical barrierswithin the Customs Union

The notification procedure laid down by Directive 98/34/EC

Ankara, 20 September 2012

Giuseppe CASELLA – European Commission, DG ENTR Sigrid BRETTEL – European Commission, DG ENTR

Introduction 1995: EU-Turkey Customs Union• Decision 1/95, Art.8: Turkey shall incorporate into its internal legal

order the [EU] instruments relating to the removal of technical barriers to trade.

1997: Directive 98/34 is one of these instruments• Decision 2/97, Annex II, XIX: describes how Directive 98/34/EC shall

apply to Turkey.

2002: Turkey incorporates Directive 98/34 in its legal Order

2004: First Turkish notifications under Directive 98/34

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Today’s Presentation

1. Directive 98/34/EC and the Internal Market 2. Turkey and the 98/34 procedure3. Presentation of the 98/34 procedure

What needs to be notified? When to notify?How does the notification procedure work in practice?

4. Results of the procedure in Turkey5. What about other notification procedures

The procedure laid down in Art. 57 of Decision 1/95The TBT notification procedure

•1. Directive 98/34 •and the Internal market

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Cassis de Dijon judgment of the ECJ New policy for the Internal Market Adoption of Directive 83/189/EEC Now, Directive 98/34/EC

Historical background

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A system of notification of technical regulations

in draft form applying standstill periods

during which the Commission and all Member States

can react in a specific form

What is Directive 98/34/EC?

Transparency

Prevention

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All participants in the notification procedure are informed

Avoiding barriers to trade before they even appear

Detecting those cases where EU intervention appears most appropriate

Subsidiarity

+ Better Regulation

Objectives

+ Benchmarking

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27 EU Member States

+ Non-EU Members of the EEA

+ Switzerland

+ Turkey

Participants

•2. Turkey •and the 98/34 procedure

Turkey is an actor of the 98/34 procedure

• It must notify

• It can comment

• It can receive comments • Remember: Turkey must insert a Mutual Recognition Clause

in its technical regulations

•3. Presentation •of the 98/34 procedure

Factors triggering a notification:

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Measure must be imputable to the State

Measure must contain technical regulations

What needs to be notified? (1)

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A. Technical specifications

(products)

B. Other requirements

(products)

D. Rules on (information society) services

C. Laws, regulations or admin. provisions prohibiting the manufacture, importation,

marketing/use of a product

Technical regulations

What needs to be notified? (2)

?

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Levels of quality, performance, safety

Dimensions Terminology, symbols,

labeling, … Testing, test methods Conformity assessment

procedures

Technical specifications

What needs to be notified? (3)

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Affecting the life cycle after placing on the market

such as conditions of use, recycling, reuse or disposal

Other requirements

What needs to be notified? (4)

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It goes well beyond a limitation to certain possible uses of the product in question and covers ‘national measures which leave no room for any use which can be made of the product concerned other than a purely marginal one’ (C-267/03 Lindberg)

Other legislation prohibiting the manufacture, importation, marketing/use of a product or prohibiting the provision/use of a service

What needs to be notified? (5)

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De facto technical

Regulationsare… Voluntary agreements

Fiscal or financial measures affecting the consumption of products or services

De facto technical regulations

What needs to be notified? (6)

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Rules on (information society) services

Principle (98/34 notification required):

Service

At a distance

By electronic means

At the individual request of a recipient of services

[+ specifically aimed at a service]

What needs to be notified? (7)

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- significantly altering its scope

- shortening the timetable for implementation

- adding specifications or requirements

- making specifications or requirements more restrictive

=> (no new notification required when amendments take account of a detailed opinion or comments)

What needs to be re-notified? (8)

Amendments necessitating re-notification

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-Implementation of an ECJ judgement

- Amendment of a technical regulation in accordance with a Commission request

- Complying with binding EU Acts;

- Fulfilment of obligations under an international agreement

- Making use of safeguard clauses;

-General product safety Directive

What needs to be notified? (9)Exceptions

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- When the text is at a draft stage

- When substantial amendments can still be made

=> In any case, before its adoption!

When (and what) to notify? (1)

When should a text be notified?

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notification message text of the notified draft basic texts any other useful texts (impact studies etc.)

Documents to be submitted for notification:

When (and what) to notify? (2)

When (and what) to notify? (3)- The notification message

1. Special Code This is entered by the Commission.

2. Member StateSender of the message.

3A. Department ResponsibleName and address (telephone N° , fax N° and e-mail address) of the Department in charge of circulating information ( Central Unit).

3B. Originating DepartmentDepartment responsible for preparing the draft.

4. Notification Number and Product codeThis is generated by the system. This number should then be used in all messages or correspondence concerning the draft.

5. TitleThe notifying Member State must give the full formal title of the draft.

6. Products and/or Services ConcernedThe notifying Member State must indicate the products and/or services

concerned by the draft regulation in plain language.7. Notification Under Another Community Act

The notifying Member State should specify at point 7 any other Community act under which it also wishes to notify the draft.

8. Main ContentThe notifying Member State must summarise the content of the draft technical regulation not more than 20 lines. The length of the summary should be in keeping with the importance of the draft.

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9. Brief Statement of Grounds

The notifying Member State must set out in not more than 10 lines the reasons and the necessity for preparing the draft. (Member States are requested not to repeat information already given under other points of the notification message).10. Reference Documents - Basic Texts11. Invocation of the Emergency Procedure

The notifying Member State must indicate whether Yes or NO it is having recourse to the emergency procedure.12. Grounds for the Emergency

If the Member State answers Yes it must give an exact and detailed justification of the grounds for the emergency.

13. Confidentialitya) The notifying Member State must indicate whether

Yes or No it is requesting that the information supplied under Article 8 be treated as confidential as per Article 8.4.

b) If the Member State answers Yes it must give reasons.

14. Fiscal Measuresa) Yes (if yes the Commission will issue message 5)b) No

15. Impact assessment 16. TBT and SPS Aspects 25

When (and what) to notify? (4)- The notification message

What happens once the draft technical regulation

has been notified to the European Commission?

The notification procedure in practice

Member State notifies

Commission opens 3 month standstill period Analysis of the draft

Comments Detailed opinion Blocking

MS + COM MS + COM only COM

How does the procedure work in practice? (1)

NOT FOR TURKISH

NOTIFICATIONS

… the free movement of goods principle (Art. 34-36 TFEU, as mirrored in Art.5-7 Decision 1/95):

• Non discrimination (imported goods = domestic goods)• Necessity of the proposed measure• Proportionality to the objective of the measure• Mutual Recognition Principle

How does the procedure work in practice? (2)

Commission opens 3 month standstill period Analysis of the draft according to…

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How does the procedure work in practice? (3)

Comments Detailed opinion Blocking

MS + COM MS + COM only COM

NOT FOR TURKISH NOTIFICATIONS

• Comments must be taken into account as far as possible dialogue with the European Commission

• The definitive text must be communicated without delay to the European Commission

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The original 3 months standstill period does not apply if a Member State invokes serious and unforeseeable circumstances relating to:

Protection of public health or safety, protection of animals and plants

For rules on services, also to public policy, notably the protection of minors

An exception to the standstill period

– the urgency procedure

How does the procedure work in practice? (4)

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URGENCY

PROCEDURE Requests Accepted Refused Closed

2008 13 4 7 2

2009 20 9 8 3

2010 33 20 12 1

2011 28 18 10 1

How does the procedure work in practice? (5)

How does the notification procedure function in Turkey?

and

What are the problems encountered?

•4. Results of the procedure in Turkey

Since 2004 : 36 notifications received from Turkey

During the same period, 587 drafts were received from Germany and 143 from Norway

Statistics – Turkish 98/34 notifications (1)

Agriculture, Fishing And Foodstuffs 11

Energy, Minerals, Wood 10

Construction 5

Mechanics 3

Transport 2

Goods And Miscellaneous Products 2

Telecoms 2

Environment 1

0

20

40

60

80

100

120

2004 2005 2006 2007 2008 2009 2010 2011 2012

Turkey

Norway

Germany

Statistics – Turkish 98/34 notifications (2)

Statistics – Turkey’s participation in the 98/34 procedure since 2004

26 comments were sent on Turkish notifications Turkey replied to 7 of them

Turkey sent 1 comment On a Spanish notification (2007/602/E on steel)

How can this be improved? (1)

Awareness raising

Seminars

Posters

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How can this be improved? (2)

Use of the TRIS database

http://ec.europa.eu/enterprise/tris

By authorities and economic operators also a public website

TTechnical RRegulations IInformation SSystem

•5. What about other notification procedures?

Directive 98/34 and Art. 57 of Decision 1/95

Article 57 of Decision 1/95:“Where Turkey is contemplating new legislationin an area of direct relevance to the functioning of the Customs Unionit shall informally seek the views of the Commission […] so that the Turkish legislator may take his decision in full knowledge

of the consequences for the functioning of the Customs Union.”

If Turkey has drafted a TECHNICAL REGULATION, it MUST be notified under the 98/34 PROCEDURE

Directive 98/34 and the TBT procedure (1)

What is the WTO TBT Agreement?

One of the 13 Multilateral Agreements on Trade in Goods of the WTO Agreement of 1994

All WTO Members (including Turkey, the EU and EU Member States) are parties to the TBT Agreement

The TBT Agreement’s notification procedure

Notification of proposed technical regulations and conformity assessment procedures

Comment period of at least 60 days

Central notification authority and enquiry points(EU: European Commission, DG ENTR, unit C/3)

Directive 98/34 and the TBT procedure (2)

Directive 98/34 and the TBT procedure (3)

Same philosophy…• Transparency• Dialogue• Prevention of barriers to trade

… but different concepts• Definitions• Significant impact on trade• Procedure

Directive 98/34 and the TBT procedure (4)

“Double notifications”

Mention TBT in 98/34 notification message (point 16)

Practical issue: Timing of the notification under the TBT Agreement and under the 98/34 procedure

EU TBT public website

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ConclusionsEnd of the Seminar

Thank you for your attention!

Closure of the seminar