Preventing technical barriers within the Customs Union The notification procedure laid down by Directive 98/34/EC Ankara, 20 September 2012 Giuseppe CASELLA – European Commission, DG ENTR Sigrid BRETTEL – European Commission, DG ENTR

Introduction 1995: EU-Turkey Customs Union Decision 1/95, Art.8: Turkey shall incorporate into its internal legal order the [EU] instruments relating to the removal of technical barriers to trade. 1997: Directive 98/34 is one of these instruments Decision 2/97, Annex II, XIX: describes how Directive 98/34/EC shall apply to Turkey. 2002: Turkey incorporates Directive 98/34 in its legal Order 2004: First Turkish notifications under Directive 98/34

4 Today’s Presentation 1.Directive 98/34/EC and the Internal Market 2.Turkey and the 98/34 procedure 3.Presentation of the 98/34 procedure What needs to be notified? When to notify? How does the notification procedure work in practice? 4.Results of the procedure in Turkey 5.What about other notification procedures The procedure laid down in Art. 57 of Decision 1/95 The TBT notification procedure

1. Directive 98/34 and the Internal market

6  Cassis de Dijon judgment of the ECJ  New policy for the Internal Market  Adoption of Directive 83/189/EEC  Now, Directive 98/34/EC Historical background

7 A system of notification of technical regulations in draft form applying standstill periods during which the Commission and all Member States can react in a specific form What is Directive 98/34/EC?

Transparency Prevention 8 All participants in the notification procedure are informed Avoiding barriers to trade before they even appear Detecting those cases where EU intervention appears most appropriate Subsidiarity + Better Regulation Objectives + Benchmarking

9 27 EU Member States + Non-EU Members of the EEA + Switzerland + Turkey Participants

2. Turkey and the 98/34 procedure

Turkey is an actor of the 98/34 procedure It must notify It can comment It can receive comments Remember: Turkey must insert a Mutual Recognition Clause in its technical regulations

3. Presentation of the 98/34 procedure

Factors triggering a notification: 13 Measure must be imputable to the State Measure must contain technical regulations What needs to be notified? (1)

14 A. Technical specifications (products) B. Other requirements (products) D. Rules on (information society) services C. Laws, regulations or admin. provisions prohibiting the manufacture, importation, marketing/use of a product Technical regulations What needs to be notified? (2) ?

15  Levels of quality, performance, safety  Dimensions  Terminology, symbols, labeling, …  Testing, test methods  Conformity assessment procedures Technical specifications What needs to be notified? (3)

16  Affecting the life cycle after placing on the market  such as conditions of use, recycling, reuse or disposal Other requirements What needs to be notified? (4)

17 It goes well beyond a limitation to certain possible uses of the product in question and covers ‘national measures which leave no room for any use which can be made of the product concerned other than a purely marginal one’ (C- 267/03 Lindberg) Other legislation prohibiting the manufacture, importation, marketing/use of a product or prohibiting the provision/use of a service What needs to be notified? (5)

18 De facto technical Regulations are… Voluntary agreements Fiscal or financial measures affecting the consumption of products or services De facto technical regulations What needs to be notified? (6)

19 Rules on (information society) services Principle (98/34 notification required):  Service  At a distance  By electronic means  At the individual request of a recipient of services [+ specifically aimed at a service] What needs to be notified? (7)

20 - significantly altering its scope - shortening the timetable for implementation - adding specifications or requirements - making specifications or requirements more restrictive => (no new notification required when amendments take account of a detailed opinion or comments) What needs to be re-notified? (8) Amendments necessitating re-notification

21 -Implementation of an ECJ judgement - Amendment of a technical regulation in accordance with a Commission request - Complying with binding EU Acts; - Fulfilment of obligations under an international agreement - Making use of safeguard clauses; -General product safety Directive What needs to be notified? (9) Exceptions

22 - When the text is at a draft stage - When substantial amendments can still be made => In any case, before its adoption! When (and what) to notify? (1) When should a text be notified?

23  notification message  text of the notified draft  basic texts  any other useful texts (impact studies etc.) Documents to be submitted for notification: When (and what) to notify? (2)

When (and what) to notify? (3) - The notification message 1.Special Code This is entered by the Commission. 2.Member State Sender of the message. 3A.Department Responsible Name and address (telephone N°, fax N° and address) of the Department in charge of circulating information ( Central Unit). 3B.Originating Department Department responsible for preparing the draft. 4.Notification Number and Product code This is generated by the system. This number should then be used in all messages or correspondence concerning the draft. 5.Title The notifying Member State must give the full formal title of the draft. 6.Products and/or Services Concerned The notifying Member State must indicate the products and/or services concerned by the draft regulation in plain language. 7.Notification Under Another Community Act The notifying Member State should specify at point 7 any other Community act under which it also wishes to notify the draft. 8.Main Content The notifying Member State must summarise the content of the draft technical regulation not more than 20 lines. The length of the summary should be in keeping with the importance of the draft. 24

9.Brief Statement of Grounds The notifying Member State must set out in not more than 10 lines the reasons and the necessity for preparing the draft. (Member States are requested not to repeat information already given under other points of the notification message). 10.Reference Documents - Basic Texts 11. Invocation of the Emergency Procedure The notifying Member State must indicate whether Yes or NO it is having recourse tothe emergency procedure. 12.Grounds for the Emergency If the Member State answers Yes it must give an exact and detailed justification of the grounds for the emergency. 13.Confidentiality a) The notifying Member State must indicate whether Yes or No it is requesting that the information supplied under Article 8 be treated as confidential as per Article 8.4. b) If the Member State answers Yes it must give reasons. 14.Fiscal Measures a)Yes (if yes the Commission will issue message 5) b)No 15.Impact assessment 16.TBT and SPS Aspects 25 When (and what) to notify? (4) - The notification message

What happens once the draft technical regulation has been notified to the European Commission?  The notification procedure in practice

Member State notifies Commission opens 3 month standstill period  Analysis of the draft Comments Detailed opinion Blocking MS + COM only COM How does the procedure work in practice? (1) NOT FOR TURKISH NOTIFICATIONS

… the free movement of goods principle (Art TFEU, as mirrored in Art.5-7 Decision 1/95): Non discrimination (imported goods = domestic goods) Necessity of the proposed measure Proportionality to the objective of the measure Mutual Recognition Principle How does the procedure work in practice? (2) Commission opens 3 month standstill period  Analysis of the draft according to…

29 How does the procedure work in practice? (3) Comments Detailed opinion Blocking MS + COM only COM NOT FOR TURKISH NOTIFICATIONS Comments must be taken into account as far as possible  dialogue with the European Commission The definitive text must be communicated without delay to the European Commission

30 The original 3 months standstill period does not apply if a Member State invokes serious and unforeseeable circumstances relating to:  Protection of public health or safety, protection of animals and plants  For rules on services, also to public policy, notably the protection of minors An exception to the standstill period – the urgency procedure How does the procedure work in practice? (4)

31 URGENCY PROCEDURERequestsAcceptedRefusedClosed How does the procedure work in practice? (5)

How does the notification procedure function in Turkey? and What are the problems encountered?

4. Results of the procedure in Turkey

 Since 2004 : 36 notifications received from Turkey  During the same period, 587 drafts were received from Germany and 143 from Norway Statistics – Turkish 98/34 notifications (1) Agriculture, Fishing And Foodstuffs11 Energy, Minerals, Wood10 Construction5 Mechanics3 Transport2 Goods And Miscellaneous Products2 Telecoms2 Environment1

Statistics – Turkish 98/34 notifications (2)

Statistics – Turkey’s participation in the 98/34 procedure since 2004  26 comments were sent on Turkish notifications  Turkey replied to 7 of them  Turkey sent 1 comment  On a Spanish notification (2007/602/E on steel)

How can this be improved? (1)  Awareness raising  Seminars  Posters

38 How can this be improved? (2)  Use of the TRIS database  By authorities and economic operators  also a public website TRIS T echnical R egulations I nformation S ystem

5. What about other notification procedures?

Directive 98/34 and Art. 57 of Decision 1/95 Article 57 of Decision 1/95: “Where Turkey is contemplating new legislation in an area of direct relevance to the functioning of the Customs Union it shall informally seek the views of the Commission […] so that the Turkish legislator may take his decision in full knowledge of the consequences for the functioning of the Customs Union.” If Turkey has drafted a TECHNICAL REGULATION, it MUST be notified under the 98/34 PROCEDURE

Directive 98/34 and the TBT procedure (1) What is the WTO TBT Agreement?  One of the 13 Multilateral Agreements on Trade in Goods of the WTO Agreement of 1994  All WTO Members (including Turkey, the EU and EU Member States) are parties to the TBT Agreement

The TBT Agreement’s notification procedure  Notification of proposed technical regulations and conformity assessment procedures  Comment period of at least 60 days  Central notification authority and enquiry points (EU: European Commission, DG ENTR, unit C/3) Directive 98/34 and the TBT procedure (2)

Directive 98/34 and the TBT procedure (3) Same philosophy… Transparency Dialogue Prevention of barriers to trade … but different concepts Definitions Significant impact on trade Procedure

Directive 98/34 and the TBT procedure (4) “Double notifications”  Mention TBT in 98/34 notification message (point 16)  Practical issue: Timing of the notification under the TBT Agreement and under the 98/34 procedure

EU TBT public website

46 Conclusions End of the Seminar Thank you for your attention! Closure of the seminar