Preventing technical barriers
within 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
Today’s Presentation
1.
2.
3.
Directive 98/34/EC and the Internal Market
Turkey and the 98/34 procedure
Presentation of the 98/34 procedure
What needs to be notified?
When to notify?
How does the notification procedure work in practice?
4.
5.
Results of the procedure in Turkey
What about other notification procedures
The procedure laid down in Art. 57 of Decision 1/95
The TBT notification procedure
4
• 1. Directive 98/34
• and the Internal market
Historical background




Cassis de Dijon judgment of the ECJ
New policy for the Internal Market
Adoption of Directive 83/189/EEC
Now, Directive 98/34/EC
6
What is Directive 98/34/EC?
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
7
Objectives
Transparency
All participants in the notification procedure are informed
Prevention
Avoiding barriers to trade before they even appear
Subsidiarity
Detecting those cases where EU intervention appears most
appropriate
+ Better Regulation
+ Benchmarking
8
Participants
27 EU Member States
+ Non-EU Members of the EEA
+ Switzerland
+ Turkey
9
• 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
What needs to be notified? (1)
Factors triggering a notification:
Measure must contain technical regulations
Measure must be imputable to the State
13
What needs to be notified? (2)
Technical regulations
A. Technical specifications
B. Other requirements
(products)
(products)
D. Rules on (information
society) services
?
C. Laws, regulations or admin.
provisions prohibiting the
manufacture, importation,
marketing/use of a product
14
What needs to be notified? (3)
Technical specifications





Levels of quality,
performance, safety
Dimensions
Terminology, symbols,
labeling, …
Testing, test methods
Conformity assessment
procedures
15
What needs to be notified? (4)
Other requirements
 Affecting the life cycle after
placing on the market
 such as conditions of use,
recycling, reuse or disposal
16
What needs to be notified? (5)
Other legislation prohibiting the manufacture,
importation, marketing/use of a product or
prohibiting the provision/use of a service
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’ (C267/03 Lindberg)
17
What needs to be notified? (6)
De facto technical regulations
De facto
technical
Regulations
are…
Fiscal or financial measures
affecting the consumption of
products or services
Voluntary agreements
18
What needs to be notified? (7)
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]
19
What needs to be re-notified? (8)
Amendments necessitating re-notification
- 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)
20
What needs to be notified? (9)
Exceptions
- Complying with binding EU Acts;
- Fulfilment of obligations under an
international agreement
-Implementation of an ECJ judgement
- Amendment of a technical regulation in
accordance with a Commission request
- Making use of safeguard clauses;
-General product safety Directive
21
When (and what) to notify? (1)
When should a text be notified?
- When the text is at a draft stage
- When substantial amendments can still be
made
=> In any case, before its adoption!
22
When (and what) to notify? (2)
Documents to be submitted for notification:




notification message
text of the notified draft
basic texts
any other useful texts (impact studies etc.)
23
When (and what) to notify? (3)
- The notification message
1.
2.
3A.
3B.
4.
5.
6.
7.
8.
Special Code
This is entered by the Commission.
Member State
Sender of the message.
Department Responsible
Name and address (telephone N° , fax N° and e-mail address) of the
Department in charge of circulating information ( Central Unit).
Originating Department
Department responsible for preparing the draft.
Notification Number and Product code
This is generated by the system. This number should then be used in
all messages or correspondence concerning the draft.
Title
The notifying Member State must give the full formal title of the draft.
Products and/or Services Concerned
The notifying Member State must indicate the products and/or services
concerned by the draft regulation in plain language.
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.
Main Content
The 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.
24
When (and what) to notify? (4)
- The notification message
9.
10.
11.
12.
13.
14.
15.
16.
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).
Reference Documents - Basic Texts
Invocation of the Emergency Procedure
The notifying Member State must indicate whether Yes or NO it is having
recourse to the emergency procedure.
Grounds for the Emergency
If the Member State answers Yes it must give an exact and detailed
justification of the grounds for the emergency.
Confidentiality
a)
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.
Fiscal Measures
a)
Yes (if yes the Commission will issue message 5)
b)
No
Impact assessment
TBT and SPS Aspects
25
What happens
once the draft technical regulation
has been notified to the European Commission?
 The notification procedure in practice
How does the procedure work in practice? (1)
Member State notifies
Commission opens 3 month standstill period
 Analysis of the draft
Comments
MS + COM
NOT FOR
Blocking
Detailed opinion
TURKISH
only COM
MS + COM
NOTIFICATIONS
How does the procedure work in practice? (2)
Commission opens 3 month standstill period
 Analysis of the draft according to…
… 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? (3)
Comments
MS + COM
NOT
FOR
TURKISH
Blocking
Detailed opinion
NOTIFICATIONS
only COM
MS + COM
• 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
29
How does the procedure work in practice? (4)
An exception to the standstill period
– the urgency procedure
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
30
How does the procedure work in practice? (5)
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
31
How does the notification procedure
function in Turkey?
and
What are the problems encountered?
• 4. Results of the procedure
in Turkey
Statistics – Turkish 98/34 notifications (1)
 Since 2004 : 36 notifications received from Turkey
Agriculture, Fishing And Foodstuffs
11
Energy, Minerals, Wood
10
Construction
5
Mechanics
3
Transport
2
Goods And Miscellaneous Products
2
Telecoms
2
Environment
1
 During the same period, 587 drafts were received
from Germany and 143 from Norway
Statistics – Turkish 98/34 notifications (2)
120
100
80
Turkey
60
Norway
Germany
40
20
0
2004
2005
2006
2007
2008
2009
2010
2011
2012
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
How can this be improved? (2)
 Use of the TRIS database
T
echnical
R
egulations
I
nformation
S
ystem
http://ec.europa.eu/enterprise/tris
 By authorities and economic operators
 also a public website
38
• 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 legislation
in an area of direct relevance to the functioning of the Customs Union
it 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
Directive 98/34 and the TBT procedure (2)
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 (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
Closure of the seminar
Conclusions
End of the Seminar
Thank you for your attention!
46