Access to information by private individuals and industry and the remedies available to them

Pages:68-70
 
CONTENT

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Although the implementation of Directive 98/34/EC is above all a matter for the parties involved in the procedure for the provision of information in the field of technical standards and regulations - the Commission, Member States, the European and national standardisation bodies - information on draft national standards and technical regulations is of considerable interest to all the citizens of the Union.

The Commission urges all economic operators, the real beneficiaries of the notification procedure, including all the categories of recipients of Information Society services (companies, professionals, consumers, etc.), to inform themselves of all the initiatives planned by the national standardisation bodies and of all the draft legislation and regulations being prepared by the Member States at a suficiently early stage, in order to be able, should they so wish:

- to take part in the work of preparing standards relating to their field of activity in the standardisation committee of the national body which has initiated this work;

- to anticipate the adoption of future national standards or technical regulations in other Member states, by adapting their production in order to comply with the precise content of these texts. In this way, manufacturers can, when the time comes, immediately export products which comply fully with the requirements of these standards or regulations;

- to express their views on necessary amendments to planned technical regulations which may form barriers to trade, in order to facilitate the access to products and to Information Society services at crossborder level. Economic operators can submit their comments on dificulties which may arise from the application of the texts, once adopted, in their field.

This is invaluable information for the Commission departments, since they do not have equivalent practical experience of the relevant fields.

These comments may be sent directly to the relevant Commission departments or to the national authorities responsible for administering Directive 98/34/EC in the field of technical regulations. The Commission and Member States may then, on this basis, send comments or detailed opinions to the notifying Member State with a view to the removal of protectionist elements identified in the draft.

If the options open to the citizens and undertakings of the European Union under Directive 98/34/EC are to be exercised in full, private individuals and businesses must consult the sources of information made available by the Commission. A list of these information sources is given below:

1. Information published in the Oficial Journal of the European Union, Series C

- Each year the Commission publishes a list in the Oficial Journal of the European Union of the new standardisation work which it has mandated CEN, CENELEC or ETSI to carry out (in accordance with Article 11 of the Directive).

- Each year, the Commission publishes statistics in the OJEU on the notifications received, the reactions to these notifications, and infringement proceedings instituted during the year for failure to fulfil the obligations under the Directive (in accordance with Article 11 of the Directive).87

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- Each week, the Commission publishes in the OJEU the titles of draft national technical regulations notified under the 98/34/ EC procedure and in each case the expiry date of the initial three-month standstill period provided for by the Directive (when the Commission accepts a request for urgency by a notifying Member State, this information is also published in the Oficial Journal of the European Union, Series C).

2. Other sources of information

- In order to facilitate industry’s access to national technical regulations, the Commission has developed a comprehensive database of all notified draft texts called TRIS (Technical Regulations Information System) which is accessible to the public on the Europa website.88In addition to the search system, the general public can use the automatic Alert System via this Website. All one needs to do is register and select one or several notification categories. TRIS will automatically e-mail the subscriber as soon as a new notified text in the chosen category or categories has been received. If a draft under examination subsequently causes the subscriber problems or is likely to hinder trade relations in the European Union, he/she is invited to forward any comments and make any concerns known either to the Commission or to the authorities responsible in his/her particular Member State.

- Interested parties may also obtain the text of draft technical regulations from the central units of the Member States (listed in Annex 1 to this booklet) which are responsible for notifying the Commission of national draft technical regulations.

- They can ask to consult the monthly register at the Central Secretariat of CEN/CENELEC, which is distributed to all the national standardisation bodies (listed in Annex 2 to this booklet), in order to find information communicated on new work entered in the national standards programmes.

- They can contact the national standardisation bodies, members of CEN or CENELEC, in order to obtain the texts of drafts entered in the national standards programmes.

- They can consult the reports on the operation of the Directive, both as regards the ‘standards’ and the ‘technical regulations’ aspect, which are regularly published by the Commission.89- The Commission issues press releases to inform private individuals and companies of infringement proceedings against texts of technical regulations adopted in breach of the Directive. This information can be used by a private individual or a company before a national authority, in support of the principle of non-applicability of a technical regulation adopted in breach of Directive 98/34/EC.

3. The inapplicability of the ‘non notified’ technical regulations

The above cited sources of information enable private individuals and other interested parties to be informed of the notifications and to ensure that technical regulations with which they are obliged to comply have indeed been notified. If this is not so, they can assert their rights through reference to the case-law of the Court of Justice.

The ‘CIA Security’ judgment and the ‘Unilever’ judgment, delivered under the preliminary ruling procedure by the Court of Justice, are key elements in the protection of private individu-

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als against failure on the part of Member States to fulfil their obligations under Directive 98/34/EC.90These judgments specify the consequences of the adoption of a technical regulation in breach of the obligations laid down by Directive 98/34/EC: private individuals can invoke Articles 8 and 9 of the Directive before the national court, which must refuse to apply a national technical regulation that has not been notified in accordance with the Directive or which has been notified but has been adopted during and not after the expiration of the standstill period laid down by the Directive.

Private individuals and enterprises have the possibility to ensure that any technical regulation adopted by a Member State is monitored before its adoption by the Commission and the other Member States (with the exceptions mentioned in the Directive). If this is not the case, a company, for example, can cite the inapplicability of the regulation in question, should it be accused of non-compliance by an authority. In the event of any national court proceedings resulting from the matter, the court must then set aside the application of the regulation and cannot, as a result, regard it as having been breached.

This sanctioning of the principle of the non-applicability to third parties of national technical regulations which have not been notified, supports the position which had been already adopted by the Commission in 198691and enhances the protection of the interests of private individuals and enterprises in this respect.

[87] See the statistics on technical regulations notified in 2004 under Directive 98/34/EC, OJ C 158, 29.6.2005, p. 20.

[88] http://europa.eu.int/comm/enterprise/tris/

[89] The reference numbers of these reports are given in the bibliography for this booklet.

[90] Judgment of 30th April 1996 ‘Interpretation of Article 30 of the EC Treaty and of Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations - National legislation on the marketing of alarm systems and networks - Prior administrative approval,’ delivered in Case C-194/94 ‘CIA Security’ [1996] ECR I-2201 and Judgment of 26th September 2000 ‘Interpretation of Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations - Obligations of notification and postponement of adoption - Applicability in civil proceedings’, delivered in Case C-443/98 ‘Unilever’ [2000] ECR I-7535.’

[91] Communication from the Commission concerning the non-respect of certain provisions of Directive 83/189/EEC, No 86/C 245/05, published in OJ C 245, 1.10.1986, p. 4.