Recently we have posted several blog posts regarding draft (proposed) legislation, published through TRIS. We have received several questions on how this draft legislation is to be interpreted. For example:
In this article we explain more on TRIS, the urgency procedure, technical regulations and the legislation it is based upon*.
When a Member State has the intention to pass a law that contains technical regulations, relating to products, the Member State must notify the European Commission (hereafter: ‘EC’ or 'Commission’). This notification is based on Directive (EU) 2015/1535. In short, a technical regulation is a regulation (a law in a member state) that member states intend to introduce for products, prohibiting the manufacture, import, marketing or use of a product or prohibiting the provision or use of a service or establishment as a service provider. The purpose of the notification is to ensure that the texts comply with EU legislation and the principles of the internal market.
Although the notification seems voluntary in the Directive, there are 2 very important judgements applicable of the European Court of Justice. The first is called ‘CIA-security’, case C-194/94 and the other is called ‘Unilever’, case C-443/98. Following case CIA-security, a national provision which was not notified under the right procedure, while it should have been, can be declared as inapplicable to individuals by national courts. Following case Unilever, a technical regulation, adopted in breach of the obligation to postpone the adoption, awaiting the ‘standstill-period’, can also be declared as inapplicable to individuals by national courts.
For this reason, Member States notify the EC of legislation that contains technical regulations. In other words, Member States are obliged to inform the EC of their intentions with regard to technical regulations.
From the moment of notification, a period of 3 months, known as the 'standstill period', starts to run. During these 3 months, the notifying Member State cannot adopt the relevant technical rule (see the case law above). The Commission publishes the notification through The Technical Regulation Information System (TRIS). The standstill period allows the Commission and the other Member States to examine the intention of a technical regulation and to react appropriately. If it appears that the intention to adopt the technical regulation may hinder the free movement of goods or services, or secondary EU legislation, the standstill period may be extended by a further three months if a detailed opinion is presented. There are also different sorts of opinions with different deadlines (the ‘detailed opinion’ and ‘postponement’). These are however not relevant for the urgency procedure, so due to the nature of this brief article, will not be further discussed.
The Directive also provides for the possibility of following an urgency procedure. The urgency procedure allows, under certain conditions, a national intention to adopt a technical regulation directly in the event of 'serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants’. The Commission will then give its opinion as soon as possible on the legitimacy of the urgency procedure. If the request for application of the urgency procedure is accepted by the Commission, the three-month standstill period will not apply and the notified text can be adopted immediately.
The Covid-19 pandemic is a serious and unforeseeable circumstance relating to the protection of public health or safety. The posts on national ‘Covid-19-measures’ most often contain proposed legislation in which the urgency procedure have been invoked. When the European Commission accepts the urgency, the urgency procedure is followed.
Do you have any further questions regarding this subject, or would you like information added to the article? Let us know.
* For this article we have used the legal text from Directive (EU) 2015/1535 and the dedicated website from the European Commission (link)