COMMISSION OF THE EUROPEAN CQMVIUNITIES 
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Brussels, 15.06.1994 
'I* Î Amended proposal for a 
FIIROPEAN PARI IAMENT ANP COUNCIL DECISION 
establishing a procedure for the exchange of information 
on national measures derogating from the principle of the free movement of goods 
within the Community 
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of the EC-Treaty) 
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Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DECISION 
establishing a procedure for the exchange of information 
on national measures derogating from the principle of the free movement of goods 
within the Community 
EXPLANATORY MEMORANDUM 
I. General 
1. On 15 December 1993 the Commission adopted a proposal for a Euronean 
Parliament and Council Decision establishing a procedure for the exchange, of 
information on national measures derogating from the principle of the fi;:e 
movement of goods within the Community.1 The proposal was sent by letter to 
Parliament and the Council on the same date. 
2. The Council started discussing the proposal on 9 February 1994. 
The Economic and Social Committee unanimously adopted its opinion on the 
proposal at its 315th plenary session, held in Brussels on 27 April 19942. Since it 
was convinced that a procedure of the kind proposed would ensure that the single 
market functioned in a consistent and transparent manner, it fully endorsed the 
proposal. 
Parliament adopted a legislative resolution embodying its opinion on the proposal 
at its sitting on 20 April 19943. It approved the proposal subject to twelve 
amendments designed, according to the draftsman of the report of the Committee 
on Economic and Monetary Affairs and Industrial Policy, to strengthen further the 
text of the proposal. These amendments are discussed below. 
3. The amended proposal has been drafted with due regard to the outcome of the 
consultation of Parliament and the Economic and Social Committee. 
II- Comments on the amendments proposed by Parliament 
Parliament has proposed twelve amendments to the initial proposal. As explained 
below, the Commission has fully agreed to nine of them, partly accepted one and 
rejected the remaining two. 
1. Amendment 1 inserts a new recital 5a which stresses one of the aims of the 
transparency to be achieved through the information procedure: other 
Member States and/or the Commission should have the opportunity to react to 
OJNoC 18,21.1.1994, p. 13. 
Minutes of the session of 27 April 1994. 
PE 180.707 - minutes of the sitting of 20 April 1994. 
national measures derogating from the principle of the free movement of goods 
within the Community. 
The Commission accepts this amendment. 
2. Amendment 2 expands the sixth recital, stressing the need to coordinate the 
similar notification or information procedures provided for by other Community 
measures. 
It should be read in conjunction with amendment 10, designed to insert a new 
Article 7a, the first sentence of which reflects this concern. 
The Commission agrees to this amendment although the management of existing 
procedures already leads to such coordination. 
3. The aim of amendment 3 is to insert a new recital 6a according to which 
businesses, consumers and other interested parties should know whom to contact 
within the Commission and the administrations of the individual Member States 
when a problem arises with regard to the free movement of goods. 
This amendment should be read in conjunction with amendments 9 and 10, the 
aim of which is to introduce into the operative part of the Decision an obligation 
on Member States and the Commission to establish contact points for businesses, 
consumers and other interested parties. 
The Commission accepts this proposal since it would enable interested parties to 
ascertain their rights and enforce them vis-à-vis the administrations concerned by 
the proper operation of the mutual recognition principle (and therefore the proper 
operation of the procedure). 
4. Amendment 4 inserts a new recital 6b which stresses that the proposed Decision 
should not lead to unnecessary red tape but should ensure that an effective balance 
is struck between safeguarding the legitimate interests of the Member States and 
maintaining unhindered the free movement of goods within the Community. 
The Commission accepts this proposal, stressing the fact that the procedure 
consists simply in transmitting a copy of the national measures concerned and an 
information sheet containing only the particulars that are essential for processing 
the notification. 
5. The aim of amendment 5 is to insert a new recital 6c mentioning the need, in the 
interests of transparency, for full and up-to-date information to be available to all 
interested parties on the implementation of the procedure. 
This amendment should be read in conjunction with amendment 11, which calls 
for information on the procedure to be made available throughout the Community, 
among other things via the annual report on the internal market. 
The Commission agrees to this proposal in so far as the annual report should be 
seen as, a means of regularly assessing how far the Community has achieved its 
aims in this field. 
6. Amendment 6 would insert a second paragraph in Article 1 providing in substance 
that, if the Commission or a Member State indicated that a notified national 
measure would create unjustified barriers to the free movement of goods, the 
Commission could then propose appropriate measures after consulting the 
relevant committee and Parliament. 
The Commission cannot accept this amendment, which is incompatible with the 
Treaty. In its role as guardian of the Treaty, it has to ensure that the provisions of 
the Treaty are properly applied. In the event of an unjustified barrier to the free 
movement of goods, the Treaty provides, among other things, that the 
Commission must enforce Articles 30 et seq. and cannot subordinate its action to 
the preparation of a proposal submitted for prior consultation to another 
Community institution. Where, using its right of initiative, the Commission 
proposes a piece of legislation, the Treaty requires it to follow consultation 
procedures that are specific to each of the legal bases concerned. 
Consultation of the relevant committees is, by definition, already covered by the 
Community rules concerned, so that there is no need for any reference to this in 
the operative part of the Decision. 
7. Amendment 7 concerns the second and third indents of Article 3(2). 
As far as the second indent is concerned, the aim of the amendment is to insert a 
reference to Directive 83/189/EEC laying down a procedure for the provision of 
information in the field of technical standards and regulations4, to 
Directive 92/59/EEC on general product safety5 and to the various internal market 
directives containing safeguard clauses. 
The Commission cannot accept this amendment, for two reasons: first, because it 
would introduce a reference to information or notification procedures laid down 
by harmonization measures (such as the safeguard clauses contained in the 
internal market directives), whereas the proposed procedure concerns only the 
non-harmonized sector; second, because the procedure should act as a "safety net" 
and catch all measures which are taken in the non-harmonized sector and are not 
covered by a procedure such as that laid down in Directive 83/189/EEC (or 
Decision 89/45/EEC6 and Decision 93/580/EEC7 which applies until 
29 June 1994, when Directive 92/59/EEC on general product safety enters into 
OJ No L 109, 26.4.1983, p. 8, as last amended by Directive 94/10/EC (OJ No L 100, 19.4.1994, 
p. 30). 
OJNoL228, 11.8.1992, p. 24. 
OJ No L 17, 21.1.1989, p. 51, as amended by Decision 90/352/EEC (OJ No L 173, 6.7.1990, 
p. 49). The dangers in question here must be serious and immediate. 
OJ No L 278, 11.11.1993, p. 64 concerning the institution of a Community system for the 
exchange of information in respect of certain products which may jeopardize consumers' health or 
safety. 
3 
force). There is therefore no need to mention any particular procedure in the 
operative part of the Decision. 
As regards the third indent of Article 3(2) of the proposal, the amendment would 
delete the reference to preventive measures. 
On grounds of proportionality, the Commission cannot accept this amendment. 
The reference to preventive measures should be retained in order to avoid 
overloading the information procedure with measures taken pending the main 
decision, which is usually taken shortly afterwards, validating or invalidating the 
measures taken and/or planned. The period of one month in which 
Member States have to communicate their national measures is granted for 
practical reasons and makes allowance for the fact that, in most cases, preventive 
measures are superseded or replaced by the main decision. 
8. The aim of amendment 8 is to specify, in the first sentence of Article 4, that 
information transmitted under the procedure must be provided in sufficient detail 
and in a clear and comprehensible form. 
Although the type of information required is set out clearly in Article 4 and in the 
Annex to which it refers, the Commission accepts the form of this amendment. 
9. Amendment 9 adds a second paragraph to Article 7 requiring Member States to 
seek to ensure that a contact point or network of contact points is established in 
order to act as an initial point of reference for all enquiries concerning 
non-recognition of national rules and about the general functioning of the 
Decision. 
The Commission accepts this proposal for the same reasons as those given in 
connection with amendment 3. 
10. Amendment 10 adds a new Article 7a requiring the Commission to reinforce its 
coordination of all matters arising out of the implementation of the Decision, 
complaints concerning individual obstacles to the free movement of goods, and 
general problems of mutual recognition. This new Article also provides that the 
Commission must seek to ensure that businesses, consumers and other interested 
parties know whom to contact when problems arise. 
The Commission accepts this proposal for the reasons already given in connection 
with amendments 2 and 3. 
11. The aim of amendment 11 is to insert a new Article 7b providing, in substance, 
for the dissemination of information on the application of the Decision, among 
other things via the annual report on the internal market and a Community 
database within the INFO 92 framework. 
The Commission accepts this amendment except for the reference, in the 
operative part of the Decision, to databases (such as INFO 92) which change and 
develop rapidly. Exclusion of this reference from the operative part of the 
Decision is without prejudice to information on the procedure, which could, in 
practice, be disseminated in an appropriate manner via databases. 
12. Amendment 12 adds a second paragraph to Article 8 stipulating that the report 
which the Commission must draw up pursuant to that Article must also examine 
whether notification under the Decision is being adequately coordinated with 
notification under other Community instruments. 
The Commission accepts this amendment in so far as the annual report should be 
viewed as a means of regularly assessing how far the Community has achieved its 
aims with regard to the internal market, in particular by looking into how existing 
information or notification procedures dovetail with one another. 
Proposal for a European Parliament and Council Decision establishing a procedure 
for the exchange of information on national measures derogating from the 
principle of the free movement of goods within the Community 
Initial proposal Amended proposal 
New recital after existing 5th recital 
Whereas other Member States and/or 
the Commission should hâYÊ the 
opportunity to react to these 
measures 
Modification of existing 6th recital 
Whereas, moreover, the procedure Whereas, moreover, the procedure 
should not duplicate notification or should not duplicate notification or 
information procedures provided for information procedures provided for 
by Community measures; by other. Community measures, and 
whereas these riiffgrgnt pr^Tf tlw r p<i 
should be properly coordinated: 
New recital after existing 6th recital . 
Whereas businesses, consumers and 
whom to contact within the Commission 
and the administrations of the 
individual Member states when a 
problem arises with regard to the 
New recital after existing 6th recital 
Whereas the procedures established tn 
implement this Decision should not 
involve the creation of unnecessary 
new bureaucracy while ensuring that 
an effective balance is struck 
between safeguarding the legitimate 
interests of the Member States and 
maintaining unhindered free movement 
of goods within the Community: 
Ini t ial proposa I Amended proposal 
New recital after existing 6th recital 
Whereas. in the interests o£ 
transparency. there Should be full 
and up to date information available 
implementation of this decision; 
Article 4 
The information referred to in 
Article 1 shall comprise: 
- a copy of the decision taken by the 
competent national authority, as 
published and/or notified to the 
person concerned, and 
- an information sheet containing the 
particulars specified in the Annex to 
this Decision. 
This information shall be 
communicated within 30 days of the 
date the decision referred to in 
Article 1 is taken by the Member 
State concerned. The information referred to in 
Article 1 shall be provided in 
sufficient detail and in clear and 
comprehens ible form. it shall 
comprise: 
- a copy of the decision taken by the 
competent national authority, as 
published and/or notified to the 
person concerned, and 
- an information sheet containing the 
particulars specified in the Annex to 
this Decision. 
This information shall be 
communicated within 30 days of the 
date the decision referred to in 
Article 1 is taken by the Member 
State concerned. 
Initial proposal Amended proposal 
Article 7 
Each Member State shall inform the 
Commission of the competent national 
authority or authorities which it has 
appointed to transmit or receive the 
information referred to in Article 1. 
The Commission shall pass on these 
particulars to the other Member 
States forthwith. Each Member State shall inform the 
Commission of the competent national 
authority or authorities which it has 
appointed to transmit or receive the 
information referred to in Article 1. 
The Commission shall pass on these 
particulars to the other Member 
States forthwith. 
Member States shall seek to ensure 
that a contact point or network of 
contact points is established in 
order to act as an initial point of 
reference for all inquiries about why 
other national rules are not being 
recognized, and about the general 
functioning of this decision. 
Article 7a (NEW) 
The Commission shall reinforce its 
Coordination Of all matters arising 
out of the implementation of this 
Decision. complaints concerning 
individual obstacles to the free 
movement of goods. and general problems of 
shall also. mutual recognition. It 
_seek to ensure that 
businesses, consumers and other 
interested parties Know whom to 
contact when problems arise. 
^ 
Ini t i t i al proposa I Amended proposal 
Article 7b (NEW) 
While respecting conridentiaiity 
where necessary, and without 
prejudice to unresolved cases. the 
Commission will provide Community-
wide information on national measure^ 
notified under this Decision with 
implications for the principle pf 
free movement Of goods in non-
harmonized sectors, as well as on any 
follow-up action that has been taken. 
Such measures will be listed in an 
Annex to the Annual Report on the 
Internal Market-
Article 8 
With two years of the date of 
notification of this Decision, the 
Commission shall report to the 
Council and the European Parliament 
on its implementation and shall 
propose any amendment it deems 
appropriate. For the preparation of 
that report, Member States shall 
communicate to the Commission any 
useful information on the way in 
which they apply this Decision. With two years of the date of 
notification of this Decision, the 
Commission shall report to the 
Council and the European Parliament 
on its implementation and shall 
propose any amendment it deems 
appropriate. For the preparation of 
that report, Member States shall 
communicate to the Commission any 
useful information on the way in 
which they apply this Decision. 
The Commission's report shall also 
examine the issue as to whether 
notification under the present 
Decision is being adequately 
coordinated with notification under 
other Community instruments. 
% 
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COM(94) 250 final 
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