**Avis juridique important**

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# 31986Y1001(01)

**Commission communication concerning the non-respect of certain provisions of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations***Official Journal C 245 , 01/10/1986 P. 0004 - 0004*

Commission communication  concerning the non-respect of certain provisions of Council Directive 83/189/EEC of 28 March 1983  laying down a procedure for the provision of information in the field of technical standards and  regulations(86/C 245/05)

A major feature of the Community's policies for completing the  internal market is the prevention of the creation of new national obstacles to intra-Community  trade. In this context, the Commission wishes to draw the attention of Member States and other  interested parties to the fact that national technical standards and regulations adopted in breach  of Directive 83/189/EEC are unenforceable against third parties and, the Commission would expect  national courts to refuse to enforce them.

  Experience shows that a State's membership of the  Community is not always sufficiently reflected in the attitudes and outlook of its administration.  When Member State governments deem new acts or regulations to be necessary for national purposes,  they do not always or automatically, in drafting their national instruments, take account of the  Community dimension or of the need to minimise the difficulties for trade between Member States.  Opportunities are thus lost of making simple and inexpensive improvements.

  In order to prevent the  erection of new barriers, Directive 83/189/EEC now requires all Member States to communicate to the  Commission, all draft technical regulations for industrial products (with the exception of food  products for human consumption, pharmaceutical and cosmetic products) so that the Commission can  examine them prior to their adoption in national law.

  Upon notification, the Directive requires  Member States, other than in the special cases referred to in Article 9 (3) of the Directive  (urgent reasons relating to the protection of public health or safety) , to suspend the adoption of  technical regulations:

  - automatically for a period of three months;

  - for a period of six months  when the Commission or another Member State raises a serious objection;

  - for a period of 12 months dating from the initial communication, when the Commission decides to initiate Community  legislation in the field covered by the draft national legislation.

  The Directive thus enables the  Commission and the other Member States to play an important role in preventing the creation of new  technical barriers to trade. The Commission is thereby given an opportunity to warn a Member State  of cases where draft technical regulations, if adopted, would run counter to Community law, and in  particular the provisions of Article 30 of the Treaty. In such a case, the Member State can modify  its draft in order to avoid creating barriers to trade. In the case where a national draft  regulation might be justified under Article 36 but might nonetheless create barriers to  intra-Community trade, the Commission can henceforth oblige the Member State to suspend the  adoption of its technical regulation for a period of 12 months to enable the Commission to initiate  Community legislation on the subject.

  Member States obligations are therefore clear and unequivocal:

  1. they must notify all draft technical regulations falling under the Directive;

  2. they must suspend the adoption of the draft technical regulations automatically for three months,  other than in the special cases covered by Article 9 (3) of the Directive;

  3. they must suspend the adoption of the draft technical regulations for a further period of three or nine months depending  on whether objections have been raised or whether Community legislation is envisaged.

  It is clear  that the failure by Member States to respect their obligations under this information procedure  would lead to the creation of serious loopholes in the internal market, with potentially damaging  trade effects.

  The Commission therefore considers that when a Member State enacts a technical  regulation falling within the scope of Directive 83/189/EEC without notifying the draft to the  Commission and respecting the standstill obligation, the regulation thus adopted is unenforceable  against third parties in the legal system of the Member State in question. The Commission therefore  considers that litigants have a right to expect national courts to refuse to enforce national  technical regulations which have not been notified as required by Community law.