CELEX: 51992PC0491
Language: en
Date: 1992-11-27
Title: Proposal for a COUNCIL DIRECTIVE amending for the second time Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations

23 . 12 . 92                         Official Journal of the European Communities                                 No C 340 / 7
                                                             II
                                                    (Preparatory Acts)
                                               COMMISSION
             Proposal for a Council Directive amending for the second time Directive 83/ 189/EEC laying
             down a procedure for the provision of information in the field of technical standards and
                                                        regulations
                                                      (92 / C 340 / 10)
                                             COM(92) 491 final — SYN 445
                                  (Submitted by the Commission on 27 November 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                         a result ; whereas any subsequent notification or
                                                                  communication relating to the progress of national acti­
                                                                  vities must depend on the interest in such activities
Having regard to the Treaty establishing the European             expressed by those to whom this new subject has already
Economic Community, and in particular Articles 100a,              been communicated ;
213 and 43 thereof,
                                                                  Whereas the Commission must nevertheless be able to
Having regard to the proposal from the Commission,                request the communication of part or all of the national
                                                                  standardization programmes so that it can review the
                                                                  development of standardization activity in particular
In cooperation with the European Parliament,                      economic sectors ;
                                                                  Whereas the European standardization system must be
Having regard to the opinion of the Economic and                  organized by and for the parties concerned, on a basis of
Social Committee ,
                                                                  coherence, transparency, openness, consensus , inde­
                                                                  pendence of special interests , efficiency and
Whereas measures designed to ensure the proper func­              decision-making based on national representation ;
tioning or to continue the development of the internal
market after 1 January 1993 should be adopted ;                   Whereas the functioning of standardization in the
                                                                  Community must be based on fundamental rights for the
                                                                  national standardization bodies , such as the possibility of
Whereas to this end as much transparency as possible              obtaining draft standards , being informed of the action
should be ensured as regards national initiatives for the         taken in response to comments submitted , being as­
establishment of technical standards or regulations by            sociated   with   national  standardization    activities or
amending the procedure for the provision of information           requesting the preparation of European standards in
laid down in Directive 83 / 189 /EEC ;                            place of national standards ; whereas it is for the Member
                                                                  States to take the appropriate measures in their power to
                                                                  ensure that their standardization bodies observe these
Whereas in order to remove barriers to the smooth func­           rights ;
tioning of the Single Market the scope of the said
Directive should be extended ;                                    Whereas the provisions contained in the Directive
                                                                  concerning the standstill arrangements applicable to
Whereas in the light of past experience the procedure for         national standardization bodies when a European
notifying the work programmes of the national stan­               standard is in preparation must be brought into line with
dardization bodies should be amended in order to define           the relevant provisions adopted by the standardization
more clearly the information which has to be notified             bodies within the framework of the European standardi­
                                                                  zation bodies ;
and to make the procedure more flexible and less
cumbersome ;
                                                                  Whereas , as far as technical regulations for products are
                                                                  concerned , the measures designed to ensure the proper
Whereas systematic notification is actually necessary             functioning or the continued development of the market
only in the case of new subjects for standardization and           include greater transparency of national intentions and a
in so far as the treatment of these subjects at national          broadening of the criteria and conditions for assessing
level may give rise to differences in national standards          the potential effect of the proposed regulations on the
which are liable to disturb the operation of the market as         market ;
 ---pagebreak---  No C 340 / 8                          Official Journal of the European Communities                                      23 . 12 . 92
Whereas it is therefore necessary to assess all the              Whereas experience has shown that, in order to be suited
requirements laid down in respect of a product and to            to its purpose, the standstill period must be prolonged in
take account of developments in national practices for           order to make additional allowance for the time taken by
the regulation of products ;                                     discussions in the Council ; whereas , also with a view to
                                                                 facilitating the adoption of Community measures by the
Whereas requirements , other than technical specifi­             Council, Member States should refrain from adopting
cations , referring to the life cycle of a product after it      technical regulations once the Council has adopted a
has been placed on the market are liable to affect the           common position on the Commission proposal,
free movement of that product or to create obstacles to
the proper functioning of the internal market ;                  HAS ADOPTED THIS DIRECTIVE :
Whereas the implementation of the Directive has
revealed the need to clarify the concept of a de facto                                            Article 1
technical regulation ; whereas , in particular, the              Directive 83 / 189 / EEC is hereby amended as follows :
provisions by which the public authority refers to
technical specifications or other requirements, or                 1 . Article 1 is amended as follows :
encourages the observance thereof, and the provisions
referring to products with which the public authority is
associated, in the public interest, have the effect of                 — paragraph 7 becomes paragraph 1 ,
conferring on such requirements or specifications a more
binding value than they would otherwise have by virtue                 — paragraph 1 is replaced by the following para­
of their private origin ;                                                  graphs :
Whereas experience of the operation of the Directive has                   ' 2 . "technical specification": a specification
also revealed the need to clarify or explain in more detail                        contained in a document which lays down the
certain definitions , rules of procedure or obligations of                         characteristics required of a product such as
the    Member     States   under the    Directive , without                        levels of quality, performance , safety or
prejudice to their obligations concerning the implemen­                            dimensions , including the requirements
tation or other Community directives ;                                             applicable to the product as regards the name
                                                                                   under which the product is sold , terminology,
Whereas the aim of the internal market is to create an                             symbols , testing and test methods , packaging,
                                                                                   marking or labelling and production methods
environment that is conducive to the competitiveness of                            and processes , as well as conformity
undertakings ; whereas increased provision of infor­                               assessment procedures ;
mation is one way of helping undertakings to make more
of the advantages of this market ; whereas it is therefore
necessary to enable economic operators to give their                           3 . "other requirement", a requirement, other
assessment of the impact of the national technical regu­                           than a technical specification, imposed on a
lations proposed by other Member States by providing                               product for the purpose of protecting , in
for the regular publication of the titles of notified drafts                       particular, consumers or the environment and
and by amending the provisions relating to the confiden­                           which affects its life cycle after it has been
tiality of such drafts ;                                                           placed on the market, such as conditions of
                                                                                   use , maintenance , recycling, re-use or
                                                                                   disposal ;',
Whereas the Directive lays upon the Member States clear
and unconditional obligations designed to ensure that                  — paragraphs 2 , 3 and 4 become respectively para­
new technical regulations, once adopted, are in                            graphs 4 , 5 and 6 ,
conformity with Community law ; whereas individuals
may enforce these obligations before the courts ; whereas
it is therefore appropriate, in the interests of legal                 — paragraph 7 is replaced by the following :
certainty, that Member States publicly announce that a
national technical regulation has been adopted in                          c7 . European standardization body : a body
accordance with the formalities laid down in the                                   referred to in Annex I to this Directive ;'
Directive ;
                                                                       — the following paragraphs are added :
Whereas it is inherent in the internal market that, in
particular where the principle of mutual recognition                         ' 8 . " national standardization body": a body
cannot be implemented by the Member States, the                                    referred to in Annex II to this Directive ;'
Commission proposes the adoption of binding
Community acts ; whereas a specific temporary standstill                     '9. "technical regulation", technical specifi­
period has been established in order to prevent the intro­                         cations and other requirements , including the
duction of national measures from compromising the                                 relevant administrative provisions , the
adoption, by the Council , of Commission proposals in                              observance of which is compulsory, de jure or
the same field ;                                                                   de facto, in the case of marketing or use in a
 ---pagebreak--- 23 . 12 . 92                                Official Journal of the European Communities                               No C 340 /9
                Member State or a major part thereof, as well              by including them in their standardization
                as laws, regulations or administrative                     programme, to prepare or amend a standard, unless
                provisions, except those provided for in                   it is the transposition in full of an international or
                Article 10 of this Directive, prohibiting the              European standard ;
                manufacture, importation, marketing or use
                of a product;                                              2.     This information shall indicate, in particular,
                                                                           whether the standard :
                De facto technical regulations include :
                                                                           — will transpose an international or European
                                                                                standard, incorporating certain national diver­
                — laws,      regulations     or    administrative               gencies or amendments,
                    provisions of a Member State which refer
                    to technical specifications or other                   — will be a new national standard,
                    requirements or to professional codes or
                    codes of practice containing them, or                  — will amend a national standard .
                    which confer on compliance with such
                    specifications, requirements or codes a                After consulting the Committee referred to in Article
                    presumption of conformity to the                       5, the Commission may draw up rules for the
                    requirements they impose,                              consolidated presentation of this information and a
                                                                           plan and criteria governing the presentation of this
                                                                           information in order to facilitate its evaluation .
                — voluntary agreements with which a public
                    authority is associated and which provide,
                    in the public interest, for compliance with            3.     The Commission may ask for all or part of the
                    technical specifications or other require­             standardization programmes to be communicated to
                                                                           it.
                    ments, excluding public procurement
                    contracts ,
                                                                           The Commission shall make this information
                                                                           available to the Member States in a form which
                — laws, regulations or administrative                      allows the different programmes to be assessed and
                    provisions, except for those linked to                 compared .
                    national social security systems, referring
                    to a technical specification or other                  4.     The Commission shall amend Annex II on the
                    requirement which, without formally                    basis of communications from the Member States .
                    making the latter mandatory, encourage
                    compliance with it, in particular by fiscal            5.     The Council shall decide, on the basis of a
                    or financial measures .
                                                                           proposal from the Commission, on any amendment
                                                                           to Annex I. '
                Technical regulations which are imposed by
                local authorities other than the authorities at        3. Article 3 is replaced by the following :
                the level immediately below               central
                government shall be excluded.                              'Article 3
                                                                           The standardization bodies referred to in Annexes I
           10 . "draft technical regulation", the text of a                and II, and the Commission, shall be sent all draft
                technical specification or other requirement,              standards on request; they shall be kept informed by
                including administrative provisions, formu­                the body concerned of the action taken on any
                lated with the aim of enacting it or of ulti­              comments they have made relating to drafts.'
                mately having it enacted as a technical regu­
                lation, the text being at a stage of preparation        4. Article 4 is replaced by the following :
                at which substantial amendments can still be
                made ;'                                                    'Article 4
                                                                            1.    Member States shall take all necessary steps to
                                                                           ensure that their standardization bodies :
 2. Article 2 is replaced by the following :
                                                                           — communicate information in accordance with the
     'Article 2                                                                 provisions of Article 2 and Article 3,
      1.    The Commission and the standardization
     bodies referred to in Annexes I and II shall be                       — publish the draft standards in such a way that
     regularly informed of the new subjects for which the                       comments may also be obtained from parties
     national bodies referred to in Annex II have decided,                      established in other States,
 ---pagebreak--- No C 340 / 10                            Official Journal of the European Communities                                     23 . 12 . 92
    — grant the other bodies referred to in Annex II the                        extending its scope, shortening the timetable
          right to be involved passively or actively (by                        originally envisaged for implementation, adding
          sending an observer) in the planned activities,                       specifications or requirements, or making the
                                                                                latter more restrictive .
    — do not object to a subject for standardization in                         Where, in particular, the draft seeks to limit the
          their work programme being discussed at                               marketing or use of a chemical or pharmaceutical
          European level and undertake no action which                          substance, preparation or product on grounds of
          may prejudice a decision in this regard.                              public health, or of the protection of consumers
                                                                                or the environment, Member States shall also
                                                                                forward either a summary or the references of all
    2 . Member States shall refrain in particular from                          relevant data relating to the substance, prep­
    any act of recognition, approval or use by reference                        aration or product concerned     and to known and
    of a national standard adopted in breach of the                             available substitute products,    and communicate
    provisions of Article 2 , 3 and 4 .'                                        the anticipated effects of the   measure on public
                                                                                health, the protection of the    consumer and the
                                                                                environment.
5 . Article 7 ( 1 ) is replaced by the following :
                                                                               The Commission shall immediately notify the
                                                                               other Member States          of the draft and       all
    * 1 . Member States shall take all appropriate                             documents which have been forwarded to it ; it
    measures to ensure that, during the preparation of a                       may also refer this draft to the Committee
    European standard referred to in the first indent of                       referred to in Article 5 and, where necessary, to
    Article 6 (3) or after its approval, their standard­                       the committee responsible for the field in
    ization bodies shall not take any action which could                       question for an opinion.',
    prejudice the harmonization intended and, in
    particular, that they shall not publish in the field in             — paragraphs 3 and 4 are replaced by the
    question a new or revised national standard which is                       following :
    not completely in line with an existing European
    standard .'                                                                '3 .    Member    States   shall  communicate     the
                                                                               definitive text of a technical regulation to the
                                                                               Commission without delay.
6 . Article 8 is amended as follows :
                                                                               4 . The information supplied under this Article
                                                                               shall be confidential at the request of the
    — paragraph 1 is replaced by the following :                               notifying Member State, supported by reasons in
                                                                               every case.',
         ' 1 . Subject to the provisions of Article 10 ,                — the following paragraph is added :
         Member States shall immediately communicate to
         the Commission any draft technical regulation,                        '5 .   When draft technical regulations form part
         except where such technical regulation merely                         of    measures which are required to be
         transposes the full text of an international or                       communicated to the Commission at the draft
         European standard, in which case information                          stage under another Community act, Member
         regarding the relevant standard shall suffice ; they                  States may make a communication within the
         shall also let the Commission have a statement of                     meaning of Article 8 ( 1 ) of this Directive under
         the grounds which make the enactment of such a                        that other act, provided that they formally
         technical regulation necessary, where these are                       indicate    that  the   said   communication     also
         not already made clear in the draft.                                  constitutes a communication for the purposes of
                                                                               this Directive .
         Where appropriate — and unless it has already                         The absence of a reaction from the Commission
         been sent with a prior communication —                                under this Directive to a draft technical regu­
         Member States shall simultaneously communicate                        lation shall not prejudice any decision which
         the text of the basis legislative or regulatory                       might be taken under other Community acts .'
         provisions principally and directly concerned,
         should knowledge of such text be necessary to              7 . Article 9 is replaced by the following :
         assess the implications of the draft technical
         regulation .                                                   'Article 9
                                                                        1 . Member States shall postpone the adoption of a
         Member States shall communicate the draft again                draft technical regulation for three months from the
         under the above conditions if they make changes                date of the communication referred to in Article 8
         to the draft that have the effect inter alia of                ( 1 ).
 ---pagebreak--- 23 . 12 . 92                              Official Journal of the European Communities                              No C 340 / 11
     2. Without prejudice to paragraphs 3, 4 and 5,                       very short space of time in order to enact and
     Member States shall postpone the adoption of a                       introduce them immediately without any consul­
     draft technical regulation for six months from the                   tations being possible. The Member State shall give,
     date of the communication referred to in Article 8                   in the communication referred to in Article 8 , the
     ( 1 ) if the Commission or another Member State                      reasons which warrant the urgency of the measures
     delivers a detailed opinion, within three months of                  taken . The Commission shall decide whether to
     that date, to the effect that the measure envisaged                  accept or refuse the urgent procedure within a time
     may create obstacles to the proper functioning of the                limit of not more than five working days. It shall
     internal market.                                                     take appropriate action in cases where improper use
                                                                          is made of this procedure.'
     The Member State concerned shall report to the
     Commission on the action it proposes to take on                  8 . Article 10 is replaced by the following :
     such detailed opinions. The Commission shall
     comment on this reaction .                                           'Article 10
                                                                          Articles 8 and 9 shall not apply to the laws, regu­
                                                                          lations and administrative provisions of the Member
     3 . Member States shall postpone the adoption of a                   States by means of which Member States :
     draft technical regulation for 12 months from the
     date of the communication referred to in Article 8
     ( 1 ) if, within the three months following that date,               — comply with binding Community acts which
     the Commission announces its intention to propose                        result in the adoption of technical specifications,
     or adopt a binding Community act on this matter.
                                                                          — fulfil the obligations arising out of international
                                                                               agreements which result in the adoption of
     4. Member States shall postpone the adoption of a                         common technical specifications in the
     draft technical regulation for 18 months from the                         Community,
     date of the communication referred to in Article 8
      ( 1 ) if, within the three months following that date,              — make use of safeguard clauses provided for in
     the Commission announces its finding that the draft                       binding Community acts,
     technical regulation concerns a matter which is
     covered by a proposal presented to the Council for a                 — apply Article 8 ( 1 ) of Directive 92/59/EEC on
     binding Community act.                                                    general product safety,
      5.      Member States shall refrain from adopting a                 — restrict themselves to implementing a judgment
                                                                               of the Court of Justice of the European
     draft technical regulation as soon as the Council has                     Communities,
      adopted a common position on the proposal from
      the Commission .
                                                                          — restrict themselves to amending a technical regu­
                                                                               lation within the meaning of Article 1 (9) of this
      6.      The obligations referred to in paragraphs 3, 4                   Directive, in conformity with a Commission
      and 5 shall lapse in any event :                                         request, with a view to removing an obstacle to
                                                                               trade .'
     — when the Commission informs the Member
                                                                      9. Article 11 is replaced by the following :
            States that it no longer intends to propose or
            adopt a binding Community act,                                'Article 11
     — when the Commission informs the Member
                                                                          The Commission shall report every two years to the
                                                                          European Parliament and the Economic and Social
            States of the withdrawal of its draft or proposal,             Committee on the results of the application of this
                                                                           Directive .'
      — when the Commission or the Council has
            adopted the act.                                         10. Article 12 is replaced by the following :
                                                                           'Article 12
      7. Paragraphs 1 to 5 shall not apply in those cases
      where, for urgent reasons, occasioned by serious and                 1 . The Commission shall publish on a regular
      unforeseeable circumstances, relating to the                         basis in the Official Journal of the European
      protection of public health or safety, the protection                 Communities a list of titles of the draft technical
      of animals or the preservation of plants, a Member                   regulations which have been notified to it pursuant
      State is obliged to prepare technical regulations in a               to Article 8 ( 1 ).
 ---pagebreak--- No C 340 / 12                            Official Journal of the European Communities                                23 . 12 . 92
     2.      Where Member States adopt a technical regu­                6 . FRANCE :
     lation, they shall contain a reference to this Directive               — AFNOR
     or shall be accompanied by such a reference when                          Association Française de Normalisation
     they are published in the Official Journal.                            — UTE
     The procedures for making such a reference shall be                       Union Technique de l'Électricité
     laid down by the Member States.'
                                                                        7 . IRELAND :
11 . The Annex is replaced by the following :                               — NSAI
     'ANNEX I                                                                  National Standards Authority of Ireland
                                                                            — ETCI
     European standardization bodies                                           Electro-Technical Council of Ireland
     — CEN
                                                                        8 . ITALY :
           Comit6 Européen de Normalisation
                                                                            — UNI
     — CENELEC
                                                                               Ente Nazionale Italiano di Unificazione
           Comité Européen de Normalisation Electro­                        — CEI
           technique                                                           Comitato Elettrotecnico Italiano
     — ETSI
                                                                        9 . LUXEMBOURG :
           Institut Européen des Normes de Télécommuni­
           cation                                                           — ITM
                                                                               Inspection du Travail et des Mines
     ANNEX II
                                                                            — SEE
     National standardization bodies in the Member States of                   Service de l'Energie de l'État
     the European Community
                                                                       10 . NETHERLANDS :
       1 . BELGIUM :
                                                                            — NNI
            — IBN/BIN
                                                                               Nederlands Normalisatie Instituut
                Institut Beige de Normalisation
                                                                            — NEC
                Belgisch Instituut voor Normalisatie
                                                                               Nederlands Elektrotechnisch Comite
            — CEB/BEC
                Comité Électrotechnique Belge                          11 . PORTUGAL :
                Belgisch Elektrotechnisch Comité
                                                                            — IPQ
       2 . DENMARK :                                                           Instituto Português da Qualidade
            — DS
                                                                       12 . UNITED KINGDOM :
                Dansk Standardiseringsråd
                                                                            — BSI
            — DEK
                                                                               British Standards Institution
               Dansk Elektroteknisk Komité
                                                                            — BEC
       3 . GERMANY :                                                           British Electrotechnical Committee .'
            — DIN
                Deutsches Institut für Normung eV                                           Article 2
            — DKE
                Deutsche Elektrotechnische Kommission im           1 . Member States shall take the measures necessary to
                DIN und VDE                                        comply with this Directive not later than 1 January 1994.
                                                                   They shall forthwith inform the Commission thereof.
       4 . GREECE :
            — ELOT                                                 2.   Member       States   shall   communicate     to      the
                Hellenic Organization for Standardization          Commission the text of the provisions of national law
                                                                   which they adopt in the field governed by this Directive .
       5 . SPAIN :
            — AENOR                                                                         Article 3
               Asociación Española de Normalización y
                Certificación                                      This Directive is addressed to the Member States .