WRITTEN QUESTION P-2214/97 by Karla Peijs (PPE) to the Commission (13 June 1997)

Subject: Implementation of Directive 83/189/EEC by the Netherlands Government

1. Is the Commission aware of the substantial number of laws and regulations of which the Netherlands Government has failed to notify the Commission in connection with the internal market (as required by Directive 83/189/EEC ((OJ L 109, 26.4.1983, p. 8. )) amended in 1989) since 1983?

2. Is the Commission aware that the Netherlands Government has said that this problem is not confined to the Netherlands but also exists in a number of other EU Member States?

3. If so, which Member States, what is the extent of the negligence and what damage has been done to the internal market by the negligent Member States?

4. How does the Commission monitor the implementation of EU legislation in the Member States - i.e. both legislation in general and the relevant Directive in particular?

5. What are the legal consequences of the negligence of the Netherlands Government?

6. Could citizens, businesses and organizations whose interests have been damaged seek compensation from the Commission as the guardian of the Treaties and from the State of the Netherlands as a negligent national authority?

7. Does the Commission agree that the Netherlands Presidency wishes to incorporate a kind of 'general amnesty' in the Amsterdam Treaty, irrespective of the damage this might do to the internal market, private individuals and legal persons?

Answer given by Mr Bangemann on behalf of the Commission (16 July 1997)

1. The Commission has been informed by the Dutch authorities that they have failed to notify a large number of technical regulations to the Commission in accordance with the requirements of Directive 83/189/EEC. The failures cover the whole period since entry into force of the Directive. The number and identity of the measures affected is in the process of being established. The Commission is aware of preliminary figures presented to the Dutch Parliament by the minister of economic affairs.

2 and 3. The Commission is not aware of the existence of a similar problem in other Member States, although it has taken action against all but one of the Member States, at one time or another, for failure to notify a technical regulation. Some 83 infringement proceedings are currently outstanding against Member States for failure to comply with the obligations of Directive 83/189/EEC.

4. The operation of Directive 83/189/EEC is the subject of regular reports to the Parliament by the Commission. The most recent of these was transmitted on 26 June 1996 ((Report from the Commission on the operation of Directive 83/189/EEC in 1992, 1993 and 1994. COM(96) 286 final. )). These reports outline the regular management of the Directive and its results.

The Commission drew the attention of the Member States to their obligations, and to the risks in the event of not respecting them, in its communication of 1986 ((Communication of the Commission concerning the non-respect of certain provisions of Directive 83/189/EEC, OJ C 245, 1.10.1986. )). Further, the Commission has established a system of surveillance of technical regulations published in the Member States, with a view to detecting failures. It is through this means that it has had occasion to open infringement proceedings against Member States. The letters sent in connection with these proceedings make explicit reference to the consequences of failure to comply.

In the context of meetings of the advisory committee on Directive 83/189/EEC, the Commission has repeatedly drawn the attention of the Member States to their obligations. In particular, following the judgement of the Court of justice in case C-194/94 ((Case C-194/94 CIA Security International SA and Signalson SA, Securitel SPRL, 30 April 1996. )), the Commission organised discussion on the consequences of failure to notify in accordance with the Directive and gave explicit guidance to the Member States. This guidance has been reiterated on the occasion of bilateral meetings with Member States to discuss the resolution of outstanding infringements.

5. In the judgement referred to above, the Court of justice held that 'Articles 8 and 9 of Directive 83/189, as amended by Directive 88/182/EEC ((OJ L 81, 26.3.1988. )), are to be interpreted as meaning that individuals may rely on them before the national court, which must decline to apply a national technical regulation which has not been notified in accordance with the directive.'

6. The obligation to notify technical regulations under the Directive falls to the Member States. The Commission cannot be held responsible for the failure of the Member States to execute responsibilities which have been clearly and repeatedly drawn to their attention. The matter of liability is for the courts to decide in the light of the case law of the Court of justice.

7. The Dutch authorities have informed the Commission of their intention to remedy the situation arising from their failure to notify certain technical regulations by compliance with their obligations. The Commission welcomes this position.