Notification of Technical Standards
In order to protect the free movement of goods and uphold the prohibition on quantitative restrictions and measures having equivalent effect, the Commission needs to be informed about rules adopted by the Member States which impede the free flow of goods. Technical regulations are of particular interest in this regard since they are likely to impede the free movement of products which do not comply with the standards. For this reason, technical regulations relating to products are subject to a specific procedure which aims to guarantee that barriers to trade resulting from such regulations are allowed only where they are necessary in order to meet essential requirements and have an objective in the public interest of which they constitute the main guarantee.^ In order to achieve this aim, Directive 98/34/EC (‘The Technical Standards Directive’) requires the Member States to immediately communicate to the Commission any draft technical regulation together with a statement of the grounds which make the enactment of such a technical regulation necessary if these grounds have not already been made clear in the draft.03 When a technical regulation merely transposes the full text of an international or European standard it suffices to provide information regarding the relevant standard.04
‘Technical regulation’ is broadly defined in the Directive and covers technical specifications and other requirements, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State, as well as laws, regulations, or administrative provisions prohibiting the manufacture, importation, marketing, or use of a product. 125
The Directive also includes a standstill provision according to which Member States must postpone the adoption of a draft technical regulation between three and six months (depending on the nature of the technical regulation) from the date on which the Commission was notified of the draft regulation.06 The procedure established by Directive 98/34/EC enables the Commission to act proactively against national measures which it deems inconsistent with the rules on free movement of goods. The effectiveness of the procedure is increased by the fact that national courts are expected to refuse to apply any national legal provision that constitutes a technical regulation if it has not been notified to the Commission prior to its adoption.07
The Directive is supplemented by a regulation (‘The Mutual Recognition Regulation’) laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State.08
