Conclusion

• Pages: 72-73

Page 72

In the context of the 2005 renewed Lisbon strategy and as part of its Better Regulation programme, the Commission announced its intention to launch a comprehensive initiative to ensure that the regulatory framework in the EU meets the requirements of the twenty-first century. Closer cooperation with the Member States to ensure that better regulation principles are applied consistently throughout the EU and the reinforcement of the constructive dialogue between all regulators at the EU and national level and with stakeholders were identified as key action lines in this respect.

It is clear from a review of more than twenty years’ experience with the implementation of the Notification Procedure during which time the Commission has screened more than 10.000 draft national measures that significant progress has been made in preventing the emergence of new barriers to trade, simultaneously saving onerous legal, administrative and economic costs. In this respect the 98/34 Notification procedure may be considered a precursor for better regulation as it has proved to be an efiective instrument of industrial policy and competitiveness which has created various channels of communication between all the main stakeholders. Consequently, it represents a model of regulatory transparency and administrative cooperation whose scope of application might be further extended and provide similar benefits in other sectors.

Although the completion of the internal market in 1993 does not appear to have diminished Member States’ need to enact detailed legislation on products, they have become gradually familiar with the rules of the internal market, the principle of mutual recognition arising from the ‘Cassis de Dijon’ precedent and the principles of transparency and co-operation, which now govern their activities in the field of technical standards and regulations. Similarly, even if more recently, in the area of services this mechanism has played an important educational role in the case of national authorities, notably as regards the need to make a clear legal distinction between operators acting under the freedom of establishment and those only wishing to provide crossborder services.

This is evident, among other things, from the inclusion of the mutual recognition clause in certain draft national legislative texts at the notification stage; the goodwill shown by the Member States in correcting errors discovered by the Commission or by the other Member States in notified drafts; the compliance in the vast majority of cases with the obligation to notify planned new standardisation activities and draft technical regulations; and from the rapid development of European stand-ardisation.

In more or less 95% of the cases where the Commission reacted in order to bring the national draft regulations into conformity with Community law, Member States agreed to carry out the necessary changes and to align their legislation with EC law, thus avoiding the launching of the more cumbersome infringement procedures by the Commission. The cooperation and discussion fostered between Member States through the 98/34 procedure is evidenced by the fact that between 2002 and 2004, for instance, Member States exchanged 230 detailed opinions

This progress in European integration, which facilitates the maintenance and growth of trade, is the fruit of the joint efiorts of the Commission and the Member States. By acting together to prevent the emergence of new technical barriers to trade, they reduce the need for legislation on a Community level, and at the same time enhance the quality of the technical standards and regulations adopted at national level. Directive 98/34/ EC is the key instrument of Community policy to combat barriers to trade which has made this possible.

Despite its success, the procedure laid down by Directive 98/ 34/EC could still be improved. This requires clear identification of the points in need of improvement.

Page 73

As far as standards are concerned, late notifications and sometimes rather vague descriptions of new work are the shortcomings most frequently mentioned by the European standardisation bodies when examining the notifications. In addition, the number of comments submitted by the national standardisation bodies remains very low in comparison with the number of notifications received. This is a sign that economic operators in the Union are still not making full use of their opportunities to express objections to texts which constitute a potential threat to the satisfactory operation of the internal market.

The reason seems to be that the European standardisation bodies can still not fully rely on the assistance of their national counterparts in organising, on a national level, the widest possible distribution of the information which they have on draft standards in preparation in other Member States, with a view to encouraging comments or participation by manufacturers in their sector of activity. By being on the alert and requesting the necessary information from the proper quarters, industry itself can contribute to a more efiective circulation of information, since the voicing of its needs could encourage the establishment, where necessary, of appropriate information relays.

With regard to the procedure for the provision of information applicable to technical regulations and rules on Information Society services, experience has shown that in some cases Member States are failing to notify their drafts, in breach of the provisions of the Directive, or applying some of these provisions erroneously as a result of insuficient knowledge of the procedure on the part of the bodies responsible for preparing the texts of these regulations. The Commission intends to pursue its information activities in this area, in particular through enhanced dialogue with the national authorities.

The Commission appreciates industry’s increased participation in the examination of draft measures. Some European federations exercise a high degree of ‘legislative vigilance’ and are very active in defending their legitimate interests by informing the Commission or the national authorities about certain drafts which, if adopted, would create technical barriers. The involvement of individual enterprises and particularly small and medium-sized businesses, which are often more reserved, could be improved. They should not hesitate to seek information and speak up, even in a confidential way, when they consider that the technical product specifications being prepared in countries to which they export could harm their interests, if adopted as they stand.

The Commission has taken some important steps to facilitate the participation of industry. In principle, notified drafts are translated into all Community languages and are then available free of charge to the public on the Europa site, via the TRIS (Technical Regulations Information System) database. Furthermore, the Commission has set up an automatic alert system to which the public may subscribe. This permits economic operators to be automatically notified by TRIS via e-mail as soon as a new notified text is received in the product or Information Society services category or categories selected.

Directive 98/34/EC is at a turning point: the adoption of Directive 98/48/EC on Information Society services and the accession of ten new Member States to the Union on 1 May 2004 have radically changed the application of the legislation, the geographical scope of which will continue to expand.

The next big challenge concerns the probable extension of the 98/34 Notification Procedure. Following a Commission Report which analysed barriers to the freedom to provide services and the freedom of establishment in the Internal Market⁹², the

Commission is currently working on a proposal concerning the possible extension of Directive 98/34/EC to cover services other than Information Society services in order to ensure that this increasingly important and largely predominant area of the EC economy will no longer fall outside the preventive control set up by this procedure.

[92] COM(2002) 441 final.