COMMON POSITION (EC) No 11/98 adopted by the Council on 26 January 1998 with a view to adopting Directive 98/.../EC of the European Parliament and of the Council substantively amending for the third time Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations
Date: 1998-01-26
Institutions: Council of the European Union
Subjects: European standard, access to information, exchange of information, standard, standardisation, technical standard

C  62/48

EN

Official  Journal  of  the  European  Communities

26.2.98

COMMON  POSITION  (EC)  No  11/98

adopted  by  the  Council  on  26  January  1998

with  a  view  to  adopting  Directive  98/. . ./EC  of  the  European  Parliament  and  of  the  Council
substantively  amending  for  the  third  time  Directive  83/189/EEC  laying  down  a  procedure  for
the  provision  of  information  in  the  field  of  technical  standards  and  regulations

(98/C  62/05)

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL  OF
THE  EUROPEAN  UNION,

Having  regard  to  the  Treaty  establishing  the  European
Community,  and  in  particular  Article  100a  and  213
thereof,

Having  regard  to  the  proposal  from  the  Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty (3),

(1)  Whereas, 

the  smooth
to  promote 
in  order 
functioning  of  the 
internal  market,  as  much
transparency  as  possible  should  be  ensured  as
regards  the  future  national  rules  and  regulations
applying 
information  society  services,  by
amending  Directive  83/189/EEC (4);

to 

(2)  Whereas  a  wide  variety  of  services  within  the
meaning  of  Articles  59  and  60  of  the  Treaty  will
benefit  by  the  opportunities  afforded  by  the
information  society  of  being  provided  at  a
distance,  electronically  and  at 
individual
request  of  a  recipient  of  services;

the 

(3)  Whereas 

internal 

the  area  without 

frontiers
comprising  the  internal  market  enables  providers
of  such  services  to  develop  their  cross-border
activities  with  a  view 
their
competitiveness,  and  thus  affords  citizens  new
opportunities  to  transmit  and  receive  information
regardless  of  frontiers,  and  consumers,  new  forms
of  access  to  goods  and  services;

increasing 

to 

(4)  Whereas  the  extension  of  the  scope  of  Directive
83/189/EEC  should  not  prevent  Member  States
from taking account of the different social, societal
and  cultural  implications  inherent  in  the  advent  of
the  information  society;  whereas,  in  particular,  the
use  of  the  procedural  rules  laid  down  in  that
Directive  for  information  society  services  should
not  affect  cultural  policy  measures,  particularly  in
the  audiovisual  field,  which  Member  States  might
adopt  in  accordance  with  Community  law,  taking
account  of  their  linguistic  diversity,  their  specific
national  and  regional  characteristics  and  their
cultural  heritage;  whereas  the  development  of  the
information  society  should  ensure,  in  any  event,
proper access of European citizens to the European
cultural 
digital
environment;

supplied 

heritage 

in 

a 

(5)  Whereas  Directive  83/189/EEC  is  not  intended  to
apply  to  national  rules  relating  to  fundamental
rights, such as constitutional provisions concerning
freedom  of  expression  and,  more  particularly,
freedom of the press; whereas it is not intended to
apply  to  the  general  criminal  law  either;  whereas,
furthermore,  it  does  not  apply  to  agreements
governed  by  private 
credit
institutions,  in  particular,  to  agreements  on  the
execution  of  payments  between  credit  institutions;

law  between 

level 

in  order 

(6)  Whereas  the  European  Council  has  stressed  the
need  to  create  a  clear  and  stable  legal  framework
at  Community 
the
development  of  the  information  society;  whereas
law  and  the  rules  governing  the
Community 
internal  market  in  particular,  including  both  the
principles  enshrined  in  the  Treaty  and  secondary
legislation,  already  constitute  a  basic 
legal
framework  for  the  development  of  such  services;

foster 

to 

(1)  OJ  C  307,  16.10.1996,  p.  11.
(2)  OJ  C  158,  26.5.1997,  p.  1.
(3)  Opinion of the European Parliament of 16 May 1997 (OJ C
167,  2.6.1997,  p.  238),  Council  Common  Position  of  26
January  1998  and  Decision  of  the  European  Parliament  of
. . .  (not  yet  published  in  the  Official  Journal).

(4)  OJ  L  109,  26.4.1983,  p.  8.  Directive  as  last  amended  by
Commission  Decision  96/139/EC  (OJ  L  32,  10.2.1996,
p.  31).

(7)  Whereas it should be possible to adapt the existing
national rules and regulations applicable to services
available  at  present  so  as  to  take  account  of  new
information  society  services,  either  with  a  view  to
ensuring that the general interest is better protected

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C  62/49

or,  on  the  other  hand,  with  a  view  to  simplifying
such  rules  and  regulations  where  their  application
is  disproportionate  to  the  objectives  they  pursue;

(8)  Whereas,  without  coordination  at  Community
level, this foreseeable regulatory activity at national
level  might  give  rise  to  restrictions  on  the  free
freedom  of
movement  of 
establishment, leading in turn to a refragmentation
of 
internal  market,  over-regulation  and
regulatory inconsistencies;

services  and 

the 

the 

(9)  Whereas,  in  order  to  ensure  real  and  effective
protection  of 
the  general-interest  objectives
involved  in  the  development  of  the  information
society, there is a need for a coordinated approach
at  Community  level  when  questions  relating  to
activities  with 
transnational
connotations as those of the new services are dealt
with;

highly 

such 

in 
there 

the  case  of 

telecommunications
(10)  Whereas, 
is  already  harmonisation  at
services, 
Community  level  or,  in  some  cases,  arrangements
for  mutual  recognition,  and  whereas  the  existing
Community  legislation  provides  for  adaptations  to
take  account  of  technological  developments  and
the  supply  of  new  services  and,  as  a  result,  the
majority  of  national 
concerning
telecommunications  services  will  not  be  subject  to
notification  within  the  meaning  of  this  Directive
since  they  will  come  under  the  exemptions  set  out
in  Article  10(1)  or  Article  1  point  5  of  Directive
83/189/EEC;  whereas, 
certain
national  provisions  specifically  aimed  at  matters
which  are  not  subject  to  Community  legislation
may  affect  the  free  movement  of  information
society  services  and  to  that  extent  they  must  be
notified;

nevertheless, 

regulations 

(11)  Whereas,  for  the  other  still  little  known  fields  of
the  information  society,  it  would,  however,  be
premature 
rules  and
to  coordinate  national 
regulations  by  means  of  extensive  or  exhaustive
the
harmonisation  at  Community 
substantive  law,  given  that  enough  is  not  yet
known  about  the  form  the  new  services  will  take
or their nature, that there is as yet, at national level
no specific regulatory activity in this field, and that
the  need  for,  and  content  of,  such  harmonisation
in  the  light  of  the  internal  market  cannot  be
defined  at  this  stage;

level  of 

(12)  Whereas  it  is  therefore  necessary  to  preserve  the
smooth  functioning  of  the  internal  market  and  to
avert the risks of refragmentation by providing for

a  procedure  for  the  provision  of  information,  the
holding  of  consultations,  and  administrative
cooperation  in  respect  of  new  draft  rules  and
regulations;  whereas  such  a  procedure  will  help,
inter  alia,  to  ensure  that  the  Treaty,  in  particular
Articles  52  and  59  thereof,  is  effectively  applied
and, where necessary, to detect any need to protect
the  general  interest  at  Community  level;  whereas,
moreover,  the  improved  application  of  the  Treaty
made  possible  by  such  an  information  procedure
will  have  the  effect  of  reducing  the  need  for
Community  rules  to  what  is  strictly  necessary  and
proportional in the light of the internal market and
the  protection  of  general-interest  objectives;
whereas,  lastly,  such  a  procedure  will  enable
businesses to exploit the advantages of the internal
market  more  effectively;

(13)  Whereas  Directive  83/189/EEC  pursues  the  same
objectives  and  whereas  this  procedure  is  effective,
being  the  most  comprehensive  one  for  attaining
these  objectives;  whereas  the  experience  that  has
been gained in implementing that Directive and the
procedures  provided  for  therein  can  be  applied  to
draft rules on information society services; whereas
the procedure it lays down is now well established
among  national  authorities;

(14)  Whereas,  moreover,  in  accordance  with  Article  7a
of  the  Treaty,  the  internal  market  comprises  an
area  without  internal  frontiers  in  which  the  free
movement of goods, persons, services and capital is
ensured  and  whereas  Directive  83/189/EEC
provides  only  for  an  administrative  cooperation
procedure  and  not  for  any  harmonisation  of
substantive  rules;

(15)  Whereas, 

therefore,  amendment  of  Directive
83/189/EEC  with  a  view  to  applying  it  to  draft
rules  and  regulations  on 
information  society
services is the approach best suited, with regard to
the legal framework of the said services, to meeting
effectively the need for transparency in the internal
market  as  far  as  the  legal  framework  for  the  said
services  is  concerned;

(16)  Whereas  notification  should  be  provided 

for
notably  in  the  case  of  rules  which  are  likely  to
in  future;  whereas  services  which  are
evolve 
provided  at  a  distance,  electronically,  and  at  the
individual  request  of  a  recipient  of  services
(information  society  services)  are  likely,  in  view  of
to
their 
their  diversity  and 
necessitate and generate the largest number of new
rules  and  regulations;  whereas  provision  must
accordingly  be  made  for  the  notification  of  draft
rules  and  regulations  relating  to  such  services;

future  growth, 

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26.2.98

(17)  Whereas specific rules on the taking-up and pursuit
of  service  activities  which  are  capable  of  being
carried  on  in  the  manner  described  above  should
thus  be  communicated  even  where  they  are
included  in  rules  and  regulations  with  a  more
general  purpose;  whereas,  however,  general
regulations  which  do  not  contain  any  provision
specifically  aimed  at  such  services  need  not  be
notified;

rules 
information 

(18)  Whereas  ‘rules  on  the  taking-up  and  pursuit  of
laying  down
service  activities’  means 
requirements 
society
concerning 
services, such as those relating to service providers,
services  and  recipients  of  services  and  to  economic
activities  capable  of  being  provided  electronically,
at  a  distance  and  at  the  individual  request  of  the
recipient  of  the  services;  whereas,  for  example,
rules  on  the  establishment  of  service  providers,  in
particular  those  on  authorisation  or 
licensing
arrangements,  are  accordingly  covered;  whereas  a
provision  specifically  aimed  at  information  society
services  must  be  considered  as  being  such  a  rule
even if part of a more general regulation; whereas,
on  the  other  hand,  measures  of  direct  and
individual  concern  to  certain  specific  recipients
(such as, for example, telecommunications licences)
would  not  be  covered;

(19)  Whereas,  within  the  meaning  of  Article  60  of  the
Treaty, as interpreted by the case-law of the Court
of Justice, ‘services’ means those normally provided
for  remuneration;  whereas  that  characteristic  is
absent in the case of activities which a State carries
out  without  economic  consideration  in  the  context
of  its  duties  in  particular  in  the  social,  cultural,
educational  and  judicial  fields;  whereas  national
provisions  concerning  such  activities  are  not
covered by the definition given in Article 60 of the
Treaty  and  therefore  do  not  fall  within  the  scope
of  this  Directive;

(20)  Whereas  this  Directive  is  without  prejudice  to  the
scope  of  Council  Directive  89/552/EEC  of  3
October  1989  on  the  coordination  of  certain
provisions 
law,  regulation  or
administrative  action  in  Member  States  concerning
the  pursuit  of  television  broadcasting  activities (1),
as amended by Directive 97/36/EC of the European
Parliament  and  of  the  Council (2),  or  any  future
amendments;

laid  down  by 

aimed 

(21)  Whereas,  in  any  event,  this  Directive  does  not
cover  draft  national  provisions 
at
transposing the content of Community directives in
force  or  awaiting  adoption  inasmuch  as  they  are
already  subject  to  specific  examination;  whereas  it
accordingly  covers  neither  national  rules  and
regulations  transposing  Directive  89/552/EEC,  as
amended  by  Directive  97/36/EC,  or  any  future
amendments,  nor  national  rules  and  regulations
transposing,  or  adopted  subsequently  within  the
context  of,  Directive  97/13/EC  of  the  European
Parliament and of the Council of 10 April 1997 on
a  common  framework  for  general  authorisations
licences  for  telecommunications
and 
services (3);

individual 

(22)  Whereas,  moreover,  provision  should  be  made  for
exceptional  cases  in  which  national  rules  and
regulations  concerning  information  society  services
might  be  adopted  immediately  and  whereas  it  is
also  important  to  allow  this  possibility  solely  for
urgent  reasons  linked  to  serious  and  unforeseeable
circumstances,  such  as  circumstances  of  which
there was no previous knowledge and the origin of
which is not attributable to any action on the part
of the authorities of the Member States concerned,
so  as  not  to  jeopardise  the  objective  of  prior
consultation 
cooperation
inherent  in  this  Directive;

administrative 

and 

(23)  Whereas  it  is  appropriate  for  a  Member  State  to
postpone for 12 months, or possibly 18 months in
the  case  of  a  common  position  of  the  Council,  the
adoption of a draft rule on services only where the
draft rule relates to a matter which falls within the
scope  of  a  proposal  for  a  directive,  regulation  or
decision  which 
the  Commission  has  already
submitted  to  the  Council;  whereas  this  standstill
obligation  may  be  imposed  by  the  Commission  on
the  relevant  Member  States  only  if  the  draft
national  rule  contains  provisions  which  are  not
substantively 
the  proposal
consistent  with 
submitted  by  the  Commission;

(24)  Whereas  definition  of  the  framework  for  the
provision  of 
information  and  the  holding  of
consultations at Community level as established by
this  Directive  is  a  precondition  for  consistent  and
effective  participation  by  the  Community  in  work
involving matters relating to the regulatory aspects
of  information  society  services  in  the  international
context;

(25)  Whereas  it  is  appropriate  that,  in  the  context  of
the  functioning  of  Directive  83/189/EEC,  the

(1)  OJ  L  298,  17.10.1989,  p.  23.
(2)  OJ  L  202,  30.7.1997,  p.  1.

(3)  OJ  L  117,  7.5.1997,  p.  15.

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Committee provided for in Article 5 thereof should
meet  specifically  to  examine  questions  relating  to
information  society  services;

(26)  Whereas,  by  the  same  token,  it  should  be  noted
that  whenever  a  national  measure  is  required  also
to  be  notified  at  the  draft  stage  pursuant  to
another  Community  act, 
the  Member  State
concerned  may  make  a  single  communication
pursuant  to  that  other  act,  by  indicating  that  that
communication  constitutes  a  communication  also
for  the  purpose  of  this  Directive,

An  indicative  list  of  services  not  covered  by
this  definition  is  set  out  in  Annex  III.

This  Directive  shall  not  apply  to:

—  radio  broadcasting  services,

—  television  broadcasting  services  covered
by  point  (a)  of  Article  1  of  Directive
89/552/EEC (*).

(*) OJ L 298, 17.10.1989, p. 23. Directive as
last  amended  by  Directive  97/36/EC  (OJ
L  202,  30.7.1997,  p.  1).’;

HAVE  ADOPTED  THIS  DIRECTIVE:

(b) points  2  and  3  shall  become  points  3  and  4

respectively;

Article  1

(c)  the  following  new  point  shall  be  inserted:

Directive  83/189/EEC  is  hereby  amended  as  follows:

1.  The  title  shall  be  replaced  by  the  following:

‘Directive  of  the  European  Parliament  and  of  the
Council laying down a procedure for the provision of
information  in  the  field  of  technical  standards  and
information  society
regulations  and  of  rules  on 
services’.

2.  Article  1  is  hereby  amended  as  follows:

(a)  the  following  new  point  shall  be  inserted:

‘2.  “Service”,  any  information  society  service,
that  is  to  say,  any  service  normally  provided
for  remuneration,  at  a  distance,  by  electronic
means  and  at  the  individual  request  of  a
recipient  of  services.

For  the  purposes  of  this  definition:

—  “at  a  distance”  means  that  the  service  is
the  parties  being

provided  without 
simultaneously present,

—  “by  electronic  means”  means  that  the
service  is  sent  initially  and  received  at  its
destination  by  means  of 
electronic
equipment  for  the  processing  (including
digital  compression)  and  storage  of  data,
and  entirely  transmitted,  conveyed  and
received  by  wire,  by  radio,  by  optical
means  or  by  other  electromagnetic
means,

—  “at the individual request of a recipient of
services”  means 
is
that 
provided through the transmission of data
on  individual  request.

the  service 

‘5.  “Rule  on  services”,  requirement  of  a
general  nature  relating  to  the  taking-up
and pursuit of service activities within the
in  particular
meaning  of  point  2, 
provisions 
service
the 
concerning 
provider,  the  services  and  the  recipient  of
services,  excluding  any  rules  which  are
not  specifically  aimed  at  the  services
defined  in  that  point.

This  Directive  shall  not  apply  to  rules
relating  to  matters  which  are  covered  by
Community  legislation  in  the  field  of
telecommunications  services,  as  defined
by  Directive  90/387/EEC (*).

This  Directive  shall  not  apply  to  rules
relating  to  matters  which  are  covered  by
Community  legislation  in  the  field  of
financial 
listed
non-exhaustively  in  Annex  IV  to  this
Directive.

services, 

as 

With  the  exception  of  Article  8(3),  this
Directive  shall  not  apply  to  rules  enacted
by  or  for  regulated  markets  within  the
meaning  of  Directive  93/22/EEC  or  by  or
for  other  markets  or  bodies  carrying  out
clearing  or  settlement  functions  for  those
markets.

For  the  purposes  of  this  definition:

—  a  rule  shall  be  considered  to  be
specifically  aimed  at 
information
society  services  where,  having  regard
to  its  statement  of  reasons  and  its
operative  part,  the  specific  aim  and
object  of  all  or  some  of  its  individual
provisions  is  to  regulate  such  services
in  an  explicit  and  targeted  manner,

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26.2.98

—  a  rule  shall  not  be  considered  to  be
information
it  affects  such
implicit  or

specifically  aimed  at 
society  services 
services  only 
incidental manner.

if 
in  an 

(*) OJ  L  192,  24.7.1990,  p.  1.  Directive
as  amended  by  Directive  97/51/EC
(OJ  L  295,  29.10.1997,  p.  23).’;

(d) points  4  to  8  shall  become  points  6  to  10;

(e)  point  9  shall  be  renumbered  11  and  shall  read  as

follows:

‘11.  “Technical 

regulation”, 

technical
specifications  and  other  requirements  or
rules  on  services,  including  the  relevant
administrative  provisions,  the  observance  of
which is compulsory, de jure or de facto, in
the case of marketing, provision of a service,
establishment of a service operator or use in
a  Member  State  or  a  major  part  thereof,  as
well  as  laws,  regulations  or  administrative
provisions  of  Member  States,  except  those
provided  for  in  Article  10,  prohibiting  the
manufacture,  importation,  marketing  or  use
of a product or prohibiting the provision or
use  of  a  service,  or  establishment  as  a
service provider.

De  facto  technical  regulations  include:

—  laws, 

regulations  or  administrative
provisions  of  a  Member  State  which
refer  either  to  technical  specifications  or
to  other  requirements  or  to  rules  on
services,  or  to  professional  codes  or
codes  of  practice  which  in  turn  refer  to
to  other
technical  specifications  or 
requirements  or  to  rules  on  services,
compliance  with  which 
confers  a
presumption  of  conformity  with  the
imposed 
obligations 
the
regulations  or
laws, 
aforementioned 
administrative provisions,

by 

—  voluntary  agreements  to  which  a  public
authority  is  a  contracting  party  and
which  provide,  in  the  general  interest,
for 
technical
specifications  or  other  requirements  or
rules  on 
services,  excluding  public
procurement  tender  specifications,

compliance 

with 

—  technical 

other
specifications 
requirements  or  rules  on  services  which

or 

are linked to fiscal or financial measures
affecting the consumption of products or
services by encouraging compliance with
such  technical  specifications  or  other
services;
requirements  or 
technical 
other
specifications 
requirements  or  rules  on  services  linked
to  national  social  security  systems  are
not  included.

rules  on 

or 

technical 

comprises 

This 
regulations
imposed by the authorities designated by the
Member States and appearing on a list to be
drawn up by the Commission before . . . (*),
in the framework of the Committee referred
to  in  Article  5.

The  same  procedure  shall  be  used  for
amending  this  list’;

(*) Date 

referred 

first
to 
subparagraph  of  Article  2(1)  of  this
Directive.

the 

in 

(f)  point  10  shall  be  renumbered  12  and  the  first

subparagraph  shall  read  as  follows:

services, 

rule  on 

‘12.  “Draft  technical  regulation”,  the  text  of  a
technical  specification  or  other  requirement
or  of  a 
including
administrative  provisions,  formulated  with
the  aim  of  enacting  it  or  of  ultimately
having  it  enacted  as  a  technical  regulation,
the  text  being  at  a  stage  of  preparation  at
which  substantial  amendments  can  still  be
made’.

3.  The following subparagraph shall be added to Article

6(1):

‘The  Committee  shall  meet  in  a  specific  composition
to  examine  questions  concerning  information  society
services’.

4.  The  sixth  subparagraph  of  Article  8(1)  shall  be

replaced  by  the  following:

‘With  respect  to  the  technical  specifications  or  other
requirements  or  rules  on  services  referred  to  in  the
third  indent  of  the  second  subparagraph  of  point  11
of Article 1, the comments or detailed opinions of the
Commission  or  Member  States  may  concern  only

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C  62/53

aspects which may hinder trade or, in respect of rules
on services, the free movement of services and not the
fiscal  or  financial  aspects  of  the  measure’.

5. 

Article  9  shall  be  amended  as  follows:

(a)  paragraphs  2  and  3  shall  be  replaced  by  the

following:

‘2. Member  States  shall  postpone:

—  for  four  months  the  adoption  of  a  draft
in  the  form  of  a
technical  regulation 
voluntary  agreement  within  the  meaning  of
the 
second
indent 
subparagraph  of  point  11  of  Article  1,

second 

the 

of 

—  without prejudice to paragraphs 3, 4 and 5,
for  six  months  the  adoption  of  any  other
draft  technical  regulation  (except  for  draft
rules  on  services),

from  the  date  of  receipt  by  the  Commission  of
the communications referred to in Article 8(1) if
the  Commission  or  another  Member  State
delivers a detailed opinion, within three months
of  that  date,  to  the  effect  that  the  measure
envisaged  may  create  obstacles  to  the  free
movement  of  goods  within 
internal
market;

the 

—  without  prejudice  to  paragraphs  4  and  5,
for  four  months  the  adoption  of  any  draft
rule  on  services,  from  the  date  of  receipt  by
the  Commission  of 
the  communication
referred to in Article 8(1) if the Commission
or another Member State delivers a detailed
opinion,  within  three  months  of  that  date,
to the effect that the measure envisaged may
create  obstacles  to  the  free  movement  of
services  or  to  the  freedom  of  establishment
of  service  operators  within  the  internal
market.

in  particular 

With  regard  to  draft  rules  on  services,  detailed
opinions  from  the  Commission  or  Member
States  may  not  affect  any  cultural  policy
measures, 
in  the  audiovisual
sphere,  which  Member  States  might  adopt  in
taking
accordance  with  Community 
account  of 
their
their 
specific  national  and  regional  characteristics
and  their  cultural  heritage.

linguistic  diversity, 

law, 

The  Member  States  concerned  shall  report  to
the  Commission  on  the  action  it  proposes  to

on 

take 
Commission  shall  comment  on  this  reaction.

opinions.  The

detailed 

such 

3. With  the  exclusion  of  draft  rules  relating  to
services,  Member  States  shall  postpone  the
adoption  of  a  draft  technical  regulation  for  12
months  from  the  date  of  receipt  by  the
Commission  of  the  communication  referred  to
in  Article  8(1)  if,  within  three  months  of  that
date,  the  Commission  announces  its  intention
of proposing or adopting a directive, regulation
or  decision  on  the  matter  in  accordance  with
Article  189  of  the  Treaty’.

(b) Paragraph  7 
following:

shall  be 

replaced  by 

the

‘7. Paragraphs  1  to  5  shall  not  apply  in  cases
where:

—  for  urgent  reasons,  occasioned  by  serious
and  unforeseeable  circumstances  relating  to
the protection of public health or safety, the
protection  of  animals  or  the  preservation  of
plants,  and  for  rules  on  services,  also  for
public  policy,  notably  the  protection  of
minors,  a  Member  State 
is  obliged  to
prepare technical regulations in a very short
space  of  time 
in  order  to  enact  and
introduce  them  immediately  without  any
consultations  being  possible,  or

—  for  urgent  reasons  occasioned  by  serious
circumstances  relating  to  the  protection  of
the security and the integrity of the financial
system, notably the protection of depositors,
investors  and  insured  persons,  a  Member
State  is  obliged  to  enact  and  implement
rules  on  financial  services  immediately.

In  the  communication  referred  to  in  Article  8,
the  Member  States  shall  give  reasons  for  the
taken.  The
urgency 
the  measures 
of 
the
Commission  shall  give 
communication as soon as possible. It shall take
appropriate  action  in  cases  where  improper  use
is  made  of  this  procedure.  The  European
Parliament  shall  be  kept 
informed  by  the
Commission’.

its  views  on 

6.  Article  10  shall  be  amended  as  follows:

(a)  the  first  and  second  indents  of  paragraph  1  shall

be  replaced  by  the  following:

‘—  comply  with  binding  Community  acts  which
technical

result 
adoption  of 
specifications  or  rules  on  services,

the 

in 

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—  fulfil 

the  obligations 

arising  out  of
international  agreements  which  result  in  the
adoption  of  common  technical  specifications
or  rules  on  services  in  the  Community’;

2. Member  States 
the  main
provisions  of  national  law  which  they  adopt  in  the  field
covered  by  this  Directive  to  the  Commission.

communicate 

shall 

(b) the  sixth  indent  of  paragraph  1  shall  be  replaced

by  the  following:

Article  3

‘—  restrict  themselves  to  amending  a  technical
regulation  within  the  meaning  of  point  11  of
Article  1,  in  accordance  with  a  Commission
request,  with  a  view  to  removing  an  obstacle
to trade or, in the case of rules on services, to
the  free  movement  of  services’;

(c)  paragraphs  3  and  4  shall  be  replaced  by  the

following:

‘3. Paragraphs 3 to 6 of Article 9 shall not apply
to  the  voluntary  agreements  referred  to  in  the
second  indent  of  the  second  subparagraph  of
point  11  of  Article  1.

4. Article  9  shall  not  apply  to  the  technical
specifications  or  other  requirements  or  the  rules
on  services  referred  to  in  the  third  indent  of  the
second  subparagraph  of  point  11  of  Article  1’.

Not later than two years from the date referred to in the
first  subparagraph  of  Article  2(1),  the  Commission  shall
submit  to  the  European  Parliament  and  the  Council  an
evaluation of the application of Directive 83/189/EEC, 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  date
referred  to  in  the  first  subparagraph  of  Article  2(1),  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.

Article  4

7. Annexes  III  and  IV,  which  appear  in  the  Annex  to
this  Directive,  shall  be  added.

This  Directive  shall  enter  into  force  on  the  day  of  its
publication  in  the  Official  Journal  of  the  European
Communities.

Article  2

Article  5

1. Member  States  shall  bring  into  force  the  regulations
and  administrative  provisions  necessary  in  order  to
comply  with  this  Directive  by 
. . . (*).  They  shall
forthwith  inform  the  Commission  thereof.

When  Member  States  adopt  these  measures,  they  shall
contain  a  reference  to  this  Directive  or  shall  be
accompanied  by  such  reference  on  the  occasion  of  their
offical  publication.  The  methods  of  making  such
reference  shall  be  laid  down  by  Member  States.

This  Directive  is  addressed  to  the  Member  States.

Done  at  . . .

For  the  European  Parliament

For  the  Council

The  President

The  President

(*) 12  months  after  the  date  on  which  this  Directive  enters  into

force.

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ANNEX

‘ANNEX  III

INDICATIVE LIST OF SERVICES NOT COVERED BY THE SECOND SUBPARAGRAPH OF POINT 2
OF  ARTICLE  1

1.  Services  not  provided  “at  a  distance”

Services provided in the physical presence of the provider and the recipient, even if they involve the use
of  electronic  devices

(a)  medical  examinations  or  treatment  at  a  doctor’s  surgery  using  electronic  equipment  where  the

patient  is  physically  present;

(b) consultation  of  an  electronic  catalogue  in  a  shop  with  the  customer  on  site;

(c)  plane  ticket  reservation  at  a  travel  agency  in  the  physical  presence  of  the  customer  by  means  of  a

network  of  computers;

(d) electronic  games  made  available  in  a  video-arcade  where  the  customer  is  physically  present.

2.  Services  not  provided  “by  electronic  means”

—  Services  having  material  content  even  though  provided  via  electronic  devices:

(a)  automatic  cash  or  ticket  dispensing  machines  (banknotes,  rail  tickets)

(b) access  to  road  networks,  car  parks,  etc.,  charging  for  use,  even  if  there  are  electronic  devices  at

the  entrance/exit  controlling  access  and/or  ensuring  correct  payment  is  made

—  Off-line  services:  distribution  of  CD  ROMs  or  software  on  diskettes

—  Services  which  are  not  provided  via  electronic  processing/inventory  systems:

(a)  voice  telephony  services

(b) fax/telex services

(c)  services  provided  via  voice  telephony  or  fax

(d) telephone/fax  consultation  of  a  doctor

(e)  telephone/fax  consultation  of  a  lawyer

(f)  telephone/fax  direct  marketing.

3.  Services  not  supplied  “at  the  individual  request  of  a  recipient  of  services”

Services  provided  by  transmitting  data  without  individual  demand  for  simultaneous  reception  by  an
unlimited  number  of  individual  receivers  (point  to  multipoint  transmission):

(a)  television  broadcasting  services  (including  near-video  on-demand  services),  covered  by  point  (a)  of

Article  1  of  Directive  89/552/EEC

(b) radio  broadcasting  services

(c)  (televised)  teletext.

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INDICATIVE  LIST  OF  THE  FINANCIAL  SERVICES  COVERED  BY  THE  THIRD  SUBPARAGRAPH
OF  POINT  5  OF  ARTICLE  1

ANNEX  IV

—  Investment  services

—  Insurance  and  reinsurance  operations

—  Banking services

—  Operations  relating  to  pension  funds

—  Services  relating  to  dealings  in  futures  or  options.

Such  services  include  in  particular:

(a)  investment services referred to in the Annex to Directive 93/22/EEC (1); services of collective investment

undertakings,

(b) services  covered  by  the  activities  subject  to  mutual  recognition  referred  to  in  the  Annex  to  Directive

89/646/EEC (2),

(c)  operations  covered  by  the  insurance  and  reinsurance  activities  referred  to  in:

—  Article  1  of  Directive  73/239/EEC (3),

—  the  Annex  to  Directive  79/267/EEC (4),

—  Directive  64/225/EEC (5),

—  Directives  92/49/EEC (6)  and  92/96/EEC (7).

(1)  OJ  L  141,  11.6.1993,  p.  27.
(2)  OJ  L  386,  30.12.1989,  p.  1.  Directive  as  amended  by  Directive  92/30/EEC  (OJ  L  110,  28.4.1992,  p.  52).
(3)  OJ  L  228,  16.8.1973,  p.  3.  Directive  as  last  amended  by  Directive  92/49/EEC  (OJ  L  228,  11.8.1992,  p.  1).
(4)  OJ  L  63,  13.3.1979,  p.  1.  Directive  as  last  amended  by  Directive  90/619/EEC  (OJ  L  330,  29.11.1990,  p.  50).
(5)  OJ  56,  4.4.1964,  p.  878/64.  Directive  as  amended  by  the  1973  Act  of  Accession.
(6)  OJ  L  228,  11.8.1992,  p.  1.
(7)  OJ  L  360,  9.12.1992,  p.1.’

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STATEMENT  OF  THE  COUNCIL’S  REASONS

I. 

INTRODUCTION

1.  On  30  August  1997  the  Commission  submitted  a  proposal  for  a  Directive  of  the
European  Parliament  and  of  the  Council  amending  for  the  third  time  Directive
83/189/EEC  laying  down  a  procedure  for  the  provision  of  information  in  the  field  of
technical  standards  and  regulations.

2.  The  European  Parliament  delivered  its  opinion  on  first  reading  on  16  May  1997;  the

Economic  and  Social  Committee  delivered  its  opinion  on  20  May  1997.

Further  to  the  European  Parliament’s  opinion,  the  Commission  submitted  an  amended
proposal  on  18  November  1997.

3.  On  26  January  1998  the  Council  adopted  its  common  position  in  accordance  with

Article  189b  of  the  Treaty.

II.  OBJECTIVE

The  purpose  of  the  proposal  is  to  introduce  a  system  of  information  and  consultation
between  the  Commission  and  the  Member  States  on  future  national  legislative  initiatives
relating  specifically  to  information  society  services.

These services represent an extremely extensive range of new activities which will undergo
considerable development in the coming years and are provided at a distance by electronic
means  on  the  individual  request  of  a  service  receiver.  (Such  services  include  electronic
newspapers,  distance  healthcare  services,  electronic  distance  sales  of  goods  and  services  in
interactive  entertainment,  leisure  and  education).  The  Member  States  will  thus  be  obliged
to  intervene  more  and  more  frequently  to  adapt  their  rules  to  these  new  services  with  the
risk  of  different  responses  resulting  in  refragmentation  of  the  internal  market.  The
information  and  consultation  system  proposed  is  designed  specifically  to  preclude  this
risk.

In  practical  terms  the  proposal  confines  itself  to  extending  the  procedures  laid  down  in
Directive  83/189/EEC  on  technical  rules  for  goods  to  information  society  services  and  to
adapting  them  to  the  particular  features  of  those  services.

III.  ANALYSIS  OF  THE  COMMON  POSITION

1.  General  comments

Broadly  speaking,  in  its  common  position  the  Council  endorsed  the  aims  proposed  by
the  Commission  and  supported  by  the  European  Parliament.

The following concerns underlay the Council’s changes to the Commission proposal as
well  as  its  attitude  to  the  European  Parliament’s  amendments:

—  the  need  to  take  account  of  the  very  specific  nature  of  information  society

services,

—  the  need  to  take  greater  account  of  the  diversity  of  national  situations,  particularly

as  regards  culture,

—  the  need  to  make  the  scope  of  certain  provisions  clearer  and  more  precise.

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2.  Specific  comments

A.  Principal changes made to the Commission proposal to take account of the specific

nature  of  information  society  services

The Council considered that a number of changes should be made to the procedures
already  in  place  for  goods  in  order  to  adapt  them  to  the  particular  features  of
information  society  services  and  to  maintain  the  effectiveness  of  action  by  national
authorities  in  this  area.

These  changes  relate  essentially  to  the  following  questions:

(i)  Standstill  clause:  Article  1(5)  (referring  to  Article  9(1)  to  (5)  of  Directive

83/189/EEC)

Since  in  this  area  it  is  often  necessary  to  adopt  rules  within  a  short  space  of
time,  the  common  position  provides  that  (where  the  Commission  or  a  Member
State  objects  within  three  months  of  notification)  the  adoption  of  a  draft
technical  regulation  on  services  shall  be  postponed  for  four  months  rather  than
the  six  months  laid  down  for  drafts  relating  to  goods  (postponement  made
obligatory).

The  standstill  period  will,  however,  continue  to  be  extended  to  12  months
where  the  draft  relates  to  a  subject  covered  by  a  Commission  proposal  and  to
18  months  where  the  Council  adopts  a  common  position.

However,  recital  23  of  the  common  position  stipulates  that  this  12-month
postponement obligation may be imposed by the Commission only if the draft
national rule is not substantively consistent with the Commission proposal. It
should  also  be  noted  that  the  common  position  no  longer  provides  for  the
possibility of a 12-month postponement in cases where the Commission states
its intention of submitting a proposal in the field covered by the national draft
rule.

(ii) Financial services: Article 1(2)(c) and (5)(b) (relating to Articles 1(5) and 9(7) of

Directive  83/189/EEC)

The Council has seen fit to adopt specific provisions for financial services, which
are  subject  to  different  requirements  from  other  services.

Accordingly,  the  Council  has  made  provision  for:

—  the  specific  exclusion  of  rules  relating  to  matters  already  covered  by
Community legislation in the field of financial services, with Annex IV to the
common  position  giving  an  indicative  list  of  the  services  concerned,

—  de  facto  exclusion  of  rules  on  regulated  markets  (essentially  stock
exchanges),  where  the  Commission  is  only  required  to  be  notified  of  their
final  text,

—  the  application  to  the  other  rules  of  slightly  more  flexible  arrangements  as

regards  the  emergency  procedure.

(iii) Provisions  intended  to  facilitate  application  of  the  new  Directive

Although  the  Council  was  concerned  to  define  information  society  services  as
precisely as possible, it was nonetheless aware that in such a new area practical
application  problems  may  occur.  It  therefore  saw  fit  to  adopt  a  number  of
provisions  intended  to  facilitate  the  interpretation  and  application  of  the
Directive.

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These  provisions  are  as  follows:
—  Annex  III  to  the  common  position  contains  a  non-exhaustive  (but  as
complete  as  possible)  list  of  the  services  which  the  new  Directive  does  not
cover,

—  Article 3 of the common position provides that, no later than two years after
the  Directive’s  entry  into  force (1),  the  Commission  shall  submit  to  the
European Parliament and to the Council an evaluation of the application of
this Directive. It also provides that, no later than three years after entry into
force of the Directive, the Commission may, if necessary, make proposals to
the  European  Parliament  and  to  the  Council  for  a  revision  of  the  text,
—  the  Commission  undertook  to  adopt  a  handbook  on  the  operation  of  the
Directive no later than 4 months after its adoption once it had consulted the
Standing  Committee  set  up  under  its  aegis  by  Directive  83/189/EEC,

—  it  was  also  noted  that  the  Member  States  could  always  consult  the
Commission  before  the  notification  provided  for  (particularly  where  they
had  questions  or  doubts  about  the  need  to  notify  a  technical  rule)  with  the
Commission  undertaking  to  give  decisions  swiftly  on  such  requests.

(b) Council  position  on  the  European  Parliament’s  amendments

(i)  A m e n d m e n t s  

i n c l u d e d  

i n   w h o l e   o r  

i n   p a r t  

i n  

t h e   c o m m o n

p o s i t i o n

The  Council  adopted  amendment  11  verbatim  and,  as  regards  the  principle,
amendments  2,  19  and  20.  It  also  took  the  second  part  of  amendment  14  into
account.

The  content  of  amendment  2  is  included  in  recital  4,  supplemented  by  a
reference  to  the  case-law  of  the  Court  of  Justice;  amendments  19  and  20  are
reflected  in  Article  3  and  recital  19  respectively;  the  second  part  of
amendment 14 has been taken into account in the wording of Article 1(5)(a),
which  relates  to  Article  9(2),  fourth  subparagraph,  of  Directive  83/189/EEC.

(ii) A m e n d m e n t s   n o t   i n c o r p o r a t e d   i n   t h e   c o m m o n   p o s i t i o n

In declining to adopt amendments 1, 4, 5, 8, 14 (first part) and 16, the Council
endorsed  the  Commission’s  position  as  set  out  in  its  amended  proposal.

As regards the remaining amendments, the Council was guided by the following
considerations:

—  amendments  3,  9  and  10:  the  Council  took  the  view  that  it  was
inappropriate  to  insert  recitals  which  did  not  constitute  a  justification  for
provisions  included  in  the  enacting  terms,

—  amendment 12: the Council considered that it was unnecessary to justify in a

recital  the  legal  basis  chosen  for  the  Directive,

—  amendments  15  and  17:  the  Council  considered  it  superfluous  to  add  a
reference to freedom of establishment, which was already inherent in the text
adopted,

—  amendment  18:  the  Council  did  not  deem  it  advisable  to  insert  into  the
enacting terms of this Directive general considerations on the development of
the  market  in  new  services  and  the  possibility  of  initiatives  to  ensure  their
future  development.

(1)  The  Directive  is  due  to  apply  12  months  after  its  publication.