The Application of the Directive

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CONTENT

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The reports which the Commission must submit to the European Parliament, the Council of Ministers and the European Economic and Social Committee describe the operation of the Directive during the reference period.83A specific report from the Commission to the European Parliament and the Council on the evaluation of the application of Directive 98/34/EC in the field of Information Society services was published in 2003 to take stock of the situation since the Directive was extended to this sector in August 1999.84The list of tasks entrusted by the Commission to CEN, CENELEC or ETSI (‘mandates’), and the statistics prepared by the Commission on the basis of communications received under Directive 98/34/EC, are also directly accessible, since they are published every year in the Oficial Journal of the European Union (OJEU).85Reference to the Directive at the time of adoption of technical regulations

Article 12

When Member States adopt a technical regulation, it shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of its oficial publication. The methods of making such reference shall be laid down by Member States.

This Article requires Member States to make reference to Directive 98/34/EC either in the text of the new technical regulations they adopt or as an accompaniment to this text at the time of its publication. The wording of this reference is left to the discretion of the Member States.

Reports and statistics

Article 11

The Commission shall report every two years to the European Parliament, the Council and the Economic and Social Committee on the results of the application of this Directive. Lists of standardisation work entrusted to the European standardisation organisations pursuant to this Directive, as well as statistics on the notifications received, shall be published on an annual basis in the Oficial Journal of the European Communities.

Not later than two years from the 5th of August 1999, the Commission shall submit to the European Parliament and the Council an evaluation of the application of Directive 98/34/EC in particular in the light of technological and market developments for the services referred to in point 2 of Article 1. Not later than three years from the above mentioned date, the Commission shall, if necessary, make proposals to the European Parliament and to the Council for a revision of the said Directive.

To this end, the Commission shall take into account any observations that might be communicated to it by Member States.

This Article sets out the Commission’s obligations in respect of guaranteeing the transparency of information on the application of Directive 98/34/EC, both as regards the Community institutions and bodies representing the political and economic interests of the citizens of the Union, and the citizens themselves.

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Although this reference is not an absolute guarantee of compliance by the Member State with the provisions of the Directive, it does at least establish a presumption that the technical regulation has been duly notified.

This obligation is of fundamental importance for the information of private individuals, who are authorised to assert their rights in the case of the adoption of a technical regulation without prior notification (see the ‘CIA Security’ judgment, referred to in the following Chapter).

Timetable and application methods

Directive 83/189/EEC was adopted on 28 March 1983 and entered into force on 1 April 1984. It was first amended by Directive 88/182/EEC, which entered into force on 1 January 1989. The second amendment came into force on 1 July 1995 and was brought about by Directive 94/10/EC.

The procedure was then codified by Directive 98/34/EC of 22 June 1998 and modified by Directive 98/48/EC of 20 July 1998, mainly to extend its application to Information Society services. This extension came into force on 5 August 1999.

The manner in which these Directives were transposed was left, as for any other Directive, to the discretion of the Member States in accordance with Article 249 of the Treaty which states that ‘A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.86Directive 98/34/EC is characterised by the fact that it contains a large number of procedural rules, which the Member States had to implement by establishing appropriate bodies and administrative mechanisms.

[83] The last report, published under the reference COM(2003) 200 final, 23 May 2003 covers the period 1999 - 2001.

[84] COM(2003) 69 final, 13.2.2003.

[85] This publication obligation was laid down by Directive 94/10/EC, in force since 1 July 1995. Statistics relating to technical regulations notified in 2004 under Directive 98/34/EC were published in OJ C 158, 29.6.2005, p. 20. The statistics can also be consulted on the Website of the Commission dedicated to Directive 98/34/EC.

[86] As opposed to a regulation which ‘shall be binding in its entirety’ and ‘directly applicable in all Member States’.