CELEX: 51994PC0250
Language: en
Date: 1994-06-15
Title: 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

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                                                                                           B r u s s e l s , 15.06.1994
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                                                                  Amended p r o p o s a l for    a
                                                       FIIROPEAN PARI I A M E N T ANP COUNCIL DECISION
                             'I* Î
                                                 establishing a procedure for the exchange of information
                                     on national measures derogating from the principle of the free movement of goods
                                                                  within the Community
                                             (presented by the Commission pursuant to Article 189 A (2)
                                                                     of the EC-Treaty)
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 ---pagebreak---                                     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.
 ---pagebreak---    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.
 ---pagebreak---    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
 ---pagebreak---     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
 ---pagebreak---     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.
 ---pagebreak--- 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 rp<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:
 ---pagebreak--- Ini t ial  proposa I                               Amended p r o p o s a l
                     New r e c i t a l after existing 6th r e c i t a l
                                                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                   The information referred to in
Article 1 shall comprise:                        Article 1 shall be provided in
- a copy of the decision taken by the            sufficient detail and in clear and
competent national authority, as                 comprehens ible        form.    it    shall
published and/or notified to the                 comprise:
person concerned, and                            - a copy of the decision taken by the
- an information sheet containing the            competent national authority, as
particulars specified in the Annex to            published and/or notified to the
this Decision.                                   person concerned, and
                                                 - an information sheet containing the
This      information       shall         be     particulars specified in the Annex to
communicated within 30 days of the               this Decision.
date the decision referred to in
Article 1 is taken by the Member                 This     information           shall     be
State concerned.                                 communicated within 30 days of the
                                                 date the decision referred to in
                                                 Article 1 is taken by the Member
                                                 State concerned.
 ---pagebreak---  Initial proposal                         Amended proposal
                                   Article 7
Each Member State shall inform the        Each Member State shall inform the
Commission of the competent national      Commission of the competent national
authority or authorities which it has     authority or authorities which it has
appointed to transmit or receive the      appointed to transmit or receive the
information referred to in Article 1.     information referred to in Article 1.
The Commission shall pass on these        The Commission shall pass on these
particulars to the other Member           particulars to the other Member
States forthwith.                         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 mutual recognition. It
                                          shall also. _seek to ensure that
                                          businesses, consumers and other
                                          interested parties Know whom to
                                          contact when problems arise.
                                       ^
 ---pagebreak---   Ini t i t i al proposa I                       Amended    proposal
                              A r t i c l e 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                 With two years of the date of
notification of this Decision, the            notification of this Decision, the
Commission shall report to the                Commission shall report to the
Council and the European Parliament           Council and the European Parliament
on its implementation and shall               on its implementation and shall
propose any amendment it deems                propose any amendment it deems
appropriate. For the preparation of           appropriate. For the preparation of
that report, Member States shall               that report, Member States shall
communicate to the Commission any              communicate to the Commission any
useful information on the way in              useful information on the way in
which they apply this Decision.                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.
                                           %
 ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(94) 250 final
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