DECISION No  3052/95/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 December 1995
establishing a  procedure for the exchange of information on national measures derogating from the principle of the  free movement of goods within the Community
THE EUROPEAN PARLIAMENT AND THE COUNCIL  OF THE EUROPEAN UNION
,
Having regard to the Treaty establishing the European Community, and in particular Article 100a  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),
Whereas the Commission has, in accordance with Article 100b of the Treaty, drawn up the inventory  of national laws, regulations and administrative provisions which fall under Article 100a of the  Treaty and which have not been harmonized pursuant to that Article;
Whereas that inventory has revealed that most of the obstacles to trade in products reported by  Member States are dealt with either by measures taken under Article 100a or through proceedings  initiated under Article 169 of the Treaty for failure to fulfil obligations under Article 30;
Whereas the transparency of national measures banning products may make it easier to deal quickly  and at the appropriate level with problems which may jeopardize the free movement of goods, inter  alia by approximating such measures in good time or adjusting them pursuant to Article 30 of the  Treaty;
Whereas, in order to facilitate such transparency, a simple and pragmatic procedure should be  established for the exchange of information between Member States and with the Commission so that  any problems that may arise in connection with the operation of the internal market can be settled  satisfactorily for both businesses and consumers;
Whereas the main purpose of this procedure is to enhance knowledge concerning the implementation of  the free movement of goods in non-harmonized sectors and to identify the problems encountered with  a view to finding appropriate solutions to them;
Whereas such a procedure should cover only those cases in which a Member State takes steps to  prevent, on grounds of non-conformity with its own national rules, the free movement or placing on  the market of goods lawfully produced or marketed in another Member State;
Whereas only measures which act as a barrier to a particular model or type of goods should be  covered and measures relating to second-hand goods which, with time or use, have become unsuitable  for being placed or kept on the market should therefore be excluded from the scope of this  Decision;
Whereas measures relating exclusively to the protection of public morality or public order should  also be excluded;
Whereas other Member States and the Commission should have the opportunity to react to the measures  notified within the framework of this Decision;
Whereas, moreover, the procedure should not duplicate notification or information procedures  provided for by other Community measures; whereas these different procedures should be properly  coordinated;
Whereas 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;
Whereas the procedures established to 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 the free movement of goods within the  Community;
Whereas, in the interests of transparency, there should be full and up-to-date information  available to all interested parties on the implementation of this Decision;
Whereas the removal of obstacles to the free movement of goods is of fundamental importance to the  Community and whereas it is necessary for the Community to establish measures in this area to  achieve that objective; whereas this measure clearly complies with the principle of  proportionality, as a complement to the principle of subsidiarity, since it is confined to ensuring  awareness of cases where the application of non-harmonized national rules is liable to affect the  satisfactory operation of the internal market,
Where a Member State takes steps to prevent the free movement or  placing on the market of a particular model or type of product lawfully produced or marketed in  another Member State, it shall notify the Commission accordingly where the direct or indirect  effect of the measure is:
- a general ban on the goods,
- a refusal to allow the goods to be placed on the market,
- the modification of the model or type of product concerned before it can be placed or kept on the  market, or
- withdrawal of the goods from the market.
For the purpose of this Decision:
- 'modification of the model or type of product' means any modification of one or more of the  product's characteristics as listed in the 'technical specification' definition given in Article 1  of Directive 83/189/EEC (1),
- 'judicial decision' means any decision taken by a judicial body whose role it is to give a  ruling,
- 'measure' means any measure other than a judicial decision.
1. The notification requirement laid down in Article 1 shall apply to measures taken by  the competent authorities of the Member States so authorized, with the exception of judicial  decisions.
Where a particular model or type of product is the subject of several measures, adopted under  identical substantive conditions and procedures, only the first of those measures shall be subject  to the notification requirement.
2. Article 1 shall not apply to:
- measures taken solely in pursuance of Community harmonization measures,
- measures notified to the Commission under specific provisions,
- draft measures notified to the Commission under specific Community provisions,
- measures preparing or leading up to the main measure referred to in Article 1, such as preventive  measures or investigations,
- measures relating solely to the protection of public morality or public order,
- measures relating to second-hand goods which, with time or use, have become unsuitable for being  placed or kept on the market.
3. The initiation of proceedings for judicial review of such a main measure shall under no  circumstances result in suspension of the application of Article 1.
1. The notification referred to in Article 1 shall be made in sufficient detail and in  clear and comprehensible form. It shall consist in the dispatch of:
- an information sheet containing the particulars listed in the Annex, and
- a copy of the measure  taken by the authorities referred to in Article 3 (1), as published or notified to the person  concerned.
Information not covered by the headings on the sheet may be omitted from the copy.
2. The information referred to in paragraph 1 shall be communicated within 45 days of the date on  which the measure referred to in Article 1 is taken.
3. The Commission shall send a copy of the information referred to in paragraph 1 to the other  Member States.
1. Where the measure which must be notified under this Decision comprises one or more  Annexes, only a list briefly indicating its/their contents shall be transmitted together with the  copy of the measure.
2. The Member State which has taken the measure may be requested by the Commission or any other  Member State to provide, within one month of the date of any such request, the full text of the  Annexes mentioned in the list referred to in paragraph 1 or any other relevant information on the  measure.
3. Where national law provides that the investigation must remain confidential, the communication  of information not covered by the headings on the sheet referred to in Article 4 (1) shall, where  appropriate, be subject to authorization by the competent judicial authority.
The Member States and the Commission shall take the steps necessary to ensure that  their officials and agents are required not to disclose information obtained for the purposes of  this Decision which, by its nature, is covered by professional secrecy except information  concerning the safety aspects of a given product the disclosure of which is necessitated by the  circumstances in order to protect the health and safety of persons.
Each Member State shall inform the Commission of the competent national authority or  authorities which it has appointed to transmit or receive the information referred to in this  Decision. The Commission shall pass on this information to the other Member States forthwith.
Member States shall seek to ensure that a contact point, which may be the competent national  authority or authorities referred to in the first paragraph, or network of contact points is  established in order to act as an initial point of reference for all inquiries about the grounds on  which other national rules are not recognized, and about the general functioning of this Decision.
1. The Commission shall reinforce its coordination concerning all matters arising out  of the implementation of this Decision, including the coordination of the notification or  information procedures concerned, complaints concerning individual obstacles to the free movement  of goods, and general problems of mutual recognition.
2. The Commission shall seek to ensure that businesses, consumers and other interested parties know  whom to contact when problems arise.
While respecting confidentiality where necessary, and without prejudice to unresolved  cases, the Commission shall provide Community-wide information on national measures notified  pursuant to this Decision which have implications for the principle of free movement of goods in  the non-harmonized sectors. It shall also provide information on follow-up action decided on.
National measures notified shall be listed in an Annex to the annual report on the internal  market.
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For the purposes of implementing this Decision, the Commission shall be assisted by  the Standing Committee set up by Directive 83/189/EEC. It shall keep that Community regularly  informed of the functioning of the procedure provided for by this Decision and of measures notified  by Member States.
Where appropriate, the Commission shall also inform the sectoral committees set up by specific  Community provisions.
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Within two years of the date of implementation of this Decision, the Commission shall  report to the European Parliament and the Council on its operation and shall propose any amendment  it deems appropriate. For the preparation of that report, Member States shall communicate to the  Commission any relevant information on the way in which they implement this Decision.
The Commission's report shall also examine the issue as to whether notification pursuant to this  Decision is being adequately coordinated with notification pursuant to other Community  instruments.
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This Decision whereas shall enter into force on the day of its publication in the  Official Journal of the European Communities.
Within six months of the date of publication, each Member State shall communicate to the Commission  the measures it has taken for the purpose of implementing the Decision.
The Decision shall apply as from 1 January 1997.
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This Decision is addressed to the Member States.