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.