LeX-Ray
Provision of Information in the Field of Technical Regulations and of Rules on Information Society Services Directive
Article 1: For the purposes of this Directive, the following definitions apply:
2
This Directive shall not apply to:
a
radio broadcasting services;
b
television broadcasting services covered by point (e) of Article 1(1) of AMSD of the European Parliament and of the Council ( 6 ) .
3
This Directive shall not apply to rules relating to matters which are covered by Union legislation in the field of telecommunications services, as covered by FD of the European Parliament and of the Council ( 7 ) .
4
This Directive shall not apply to rules relating to matters which are covered by Union legislation in the field of financial services, as listed non-exhaustively in Annex II to this Directive.
5
With the exception of Article 5(3), this Directive shall not apply to rules enacted by or for regulated markets within the meaning of MIFID of the European Parliament and of the Council ( 8 ) or by or for other markets or bodies carrying out clearing or settlement functions for those markets.
6
This Directive shall not apply to those measures Member States consider necessary under the Treaties for the protection of persons, in particular workers, when products are used, provided that such measures do not affect the products.
Article 2: A Standing Committee shall be set up consisting of representatives appointed by the Member States who may call on the assistance of experts or advisers; its chairman shall be a representative of the Commission.
The Committee shall draw up its own rules of procedure.
Article 3: The Committee shall meet at least twice a year.
2
The Commission shall submit to the Committee a report on the implementation and application of the procedures set out in this Directive, and shall present proposals aimed at eliminating existing or foreseeable barriers to trade.
3
The Committee shall express its opinion on the communications and proposals referred to in paragraph 2 and may, in that regard, propose, in particular, that the Commission:
a
ensure where necessary, in order to avoid the risk of barriers to trade, that initially the Member States concerned decide amongst themselves on appropriate measures;
b
take all appropriate measures;
c
identify the areas where harmonisation appears necessary, and, should the case arise, undertake appropriate harmonisation in a given sector.
4
The Committee must be consulted by the Commission:
a
when deciding on the actual system through which the exchange of information provided for in this Directive is to be effected and on any change to it;
b
when reviewing the operation of the system provided for in this Directive.
5
The Committee may be consulted by the Commission on any preliminary draft technical regulation received by the latter.
6
Any question regarding the implementation of this Directive may be submitted to the Committee at the request of its chairman or of a Member State.
7
The proceedings of the Committee and the information to be submitted to it shall be confidential.
However, the Committee and the national authorities may, provided that the necessary precautions are taken, consult, for an expert opinion, natural or legal persons, including persons in the private sector.
8
With respect to rules on services, the Commission and the Committee may consult natural or legal persons from industry or academia, and where possible representative bodies, capable of delivering an expert opinion on the social and societal aims and consequences of any draft rule on services, and take note of their advice whenever requested to do so.
Article 4: Member States shall communicate to the Commission, in accordance with Article 5(1), all requests made to standards institutions to draw up technical specifications or a standard for specific products for the purpose of enacting a technical regulation for such products in the form of draft technical regulations, and shall state the grounds for their enactment.
Article 5: Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.
2
The Commission and the Member States may make comments to the Member State which has forwarded a draft technical regulation; that Member State shall take such comments into account as far as possible in the subsequent preparation of the technical regulation.
3
Member States shall communicate the definitive text of a technical regulation to the Commission without delay.
4
Information supplied under this Article shall not be confidential except at the express request of the notifying Member State. Any such request shall be supported by reasons.
In cases of that kind, if the necessary precautions are taken, the Committee referred to in Article 2 and the national authorities may seek expert advice from physical or legal persons in the private sector.
5
When draft technical regulations form part of measures which are required to be communicated to the Commission at the draft stage under another Union act, Member States may make a communication within the meaning of paragraph 1 under that other act, provided that they formally indicate that the said communication also constitutes a communication for the purposes of this Directive.
The absence of a reaction from the Commission under this Directive to a draft technical regulation shall not prejudice any decision which might be taken under other Union acts.
Article 6: Member States shall postpone the adoption of a draft technical regulation for three months from the date of receipt by the Commission of the communication referred to in Article 5(1).
2
Member States shall postpone:
—
for four months the adoption of a draft technical regulation in the form of a voluntary agreement within the meaning of point (ii) of the second subparagraph of point (f) of Article 1(1),
—
without prejudice to paragraphs 3, 4 and 5 of this article, for six months the adoption of any other draft technical regulation except for draft rules on services,
from the date of receipt by the Commission of the communication referred to in Article 5(1), if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged may create obstacles to the free movement of goods within the internal market,
—
without prejudice to paragraphs 4 and 5, for four months the adoption of any draft rule on services, from the date of receipt by the Commission of the communication referred to in Article 5(1), if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged may create obstacles to the free movement of services or to the freedom of establishment of service operators within the internal market.
With regard to draft rules on services, detailed opinions from the Commission or Member States may not affect any cultural policy measures, in particular in the audiovisual sphere, which Member States might adopt in accordance with the law of the Union, taking account of their linguistic diversity, their specific national and regional characteristics and their cultural heritage.
The Member State concerned shall report to the Commission on the action it proposes to take on such detailed opinions. The Commission shall comment on this reaction.
With respect to rules on services, the Member State concerned shall indicate, where appropriate, the reasons why the detailed opinions cannot be taken into account.
3
With the exclusion of draft rules relating to services, Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication referred to in Article 5(1) of this Directive, if, within three months of that date, the Commission announces its intention to propose or adopt a directive, regulation or decision on the matter in accordance with Article 288 TFEU.
4
Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication referred to in Article 5(1) of this Directive, if, within the three months following that date, the Commission announces its finding that the draft technical regulation concerns a matter which is covered by a proposal for a directive, regulation or decision presented to the European Parliament and the Council in accordance with Article 288 TFEU.
5
If the Council adopts a position at first reading during the standstill period referred to in paragraphs 3 and 4, that period shall, subject to paragraph 6, be extended to 18 months.
6
The obligations referred to in paragraphs 3, 4 and 5 shall lapse:
a
when the Commission informs the Member States that it no longer intends to propose or adopt a binding act;
b
when the Commission informs the Member States of the withdrawal of its draft or proposal;
c
when a binding act has been adopted by the European Parliament and the Council or by the Commission.
7
Paragraphs 1 to 5 shall not apply in cases where:
a
for urgent reasons, occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and for rules on services, also for public policy, in particular the protection of minors, a Member State is obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultations being possible; or
b
for urgent reasons occasioned by serious circumstances relating to the protection of the security and the integrity of the financial system, in particular the protection of depositors, investors and insured persons, a Member State is obliged to enact and implement rules on financial services immediately.
In the communication referred to in Article 5, the Member State shall give reasons for the urgency of the measures taken. The Commission shall give its views on the communication as soon as possible. It shall take appropriate action in cases where improper use is made of this procedure. The European Parliament shall be kept informed by the Commission.
Article 7: Articles 5 and 6 shall not apply to those laws, regulations and administrative provisions of the Member States or voluntary agreements by means of which Member States:
2
Article 6 shall not apply to the laws, regulations and administrative provisions of the Member States prohibiting manufacture in so far as they do not impede the free movement of products.
3
Paragraphs 3 to 6 of Article 6 shall not apply to the voluntary agreements referred to in point (ii) of the second subparagraph of point (f) of Article 1(1).
4
Article 6 shall not apply to the technical specifications or other requirements or the rules on services referred to in point (iii) of the second subparagraph of point (f) of Article 1(1).
Article 8: The Commission shall report every two years to the European Parliament, the Council and the European Economic and Social Committee on the results of the application of this Directive.
The Commission shall publish annual statistics on the notifications received in the Official Journal of the European Union . Official Journal of the European Union
Article 9: When Member States adopt a technical regulation, it shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of its official publication. The methods of making such reference shall be laid down by Member States.
Article 10: Directive 98/34/EC, as amended by the acts listed in Part A of Annex III to this Directive, is repealed, without prejudice to the obligations of the Member States relating to the time limits for the transposition into national law of the Directives set out in Part B of Annex III to the repealed Directive and in Part B of Annex III to this Directive.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.
Article 11: This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union . Official Journal of the European Union
Article 12: This Directive is addressed to the Member States.
Recitals
Recital 1
Directive 1998/34 of the European Parliament and of the Council ( 3 ) has been substantially amended several times ( 4 ) . In the interests of clarity and rationality, that Directive should be codified.
Recital 2
The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. Therefore, the prohibition of quantitative restrictions on the movement of goods and of measures having an equivalent effect is one of the basic principles of the Union.
Recital 3
In order to promote the smooth functioning of the internal market, as much transparency as possible should be ensured as regards national initiatives for the establishment of technical regulations.
Recital 4
Barriers to trade resulting from technical regulations relating to products may be 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.
Recital 5
It is essential for the Commission to have the necessary information at its disposal before the adoption of technical provisions. Consequently, the Member States, which are required to facilitate the achievement of its task pursuant to Article 4(3) of the Treaty on European Union (TEU), must notify it of their projects in the field of technical regulations.
Recital 6
All the Member States must also be informed of the technical regulations envisaged by any one Member State.
Recital 7
The aim of the internal market is to create an environment that is conducive to the competitiveness of undertakings. Increased provision of information is one way of helping undertakings to make more of the advantages inherent in this market. It is therefore necessary to enable economic operators to give their assessment of the impact of the national technical regulations proposed by other Member States, by providing for the regular publication of the titles of notified drafts and by means of the provisions relating to the confidentiality of such drafts.
Recital 8
It is appropriate, in the interests of legal certainty, that Member States publicly announce that a national technical regulation has been adopted in accordance with the formalities laid down in this Directive.
Recital 9
As far as technical regulations for products are concerned, the measures designed to ensure the proper functioning or the continued development of the market include greater transparency of national intentions and a broadening of the criteria and conditions for assessing the potential effect of the proposed regulations on the market.
Recital 10
It is therefore necessary to assess all the requirements laid down in respect of a product and to take account of developments in national practices for the regulation of products.
Recital 11
Requirements, other than technical specifications, referring to the life cycle of a product after it has been placed on the market are liable to affect the free movement of that product or to create obstacles to the proper functioning of the internal market.
Recital 12
It is necessary to clarify the concept of a de facto technical regulation. In particular, the provisions by which the public authority refers to technical specifications or other requirements, or encourages the observance thereof, and the provisions referring to products with which the public authority is associated, in the public interest, have the effect of conferring on such requirements or specifications a more binding value than they would otherwise have by virtue of their private origin.
Recital 13
The Commission and the Member States must also be allowed sufficient time in which to propose amendments to an envisaged measure, in order to remove or reduce any barriers which it might create to the free movement of goods.
Recital 14
The Member State concerned must take account of those amendments when formulating the definitive text of the measure envisaged.
Recital 15
It is inherent in the internal market that, in particular where the principle of mutual recognition cannot be implemented by the Member States, the Commission adopts or proposes the adoption of binding acts. A specific temporary standstill period has been established in order to prevent the introduction of national measures from compromising the adoption of binding acts by the European Parliament and the Council or by the Commission in the same field.
Recital 16
The Member State concerned is to, pursuant to the general obligations laid down in Article 4(3) TEU, defer implementation of the envisaged measure for a period sufficient to allow either a joint examination of the proposed amendments or the preparation of a proposal for a legislative act or the adoption of a binding act of the Commission.
Recital 17
With a view to facilitating the adoption of measures by the European Parliament and the Council, Member States should refrain from adopting technical regulations once the Council has adopted a position at first reading on a Commission proposal concerning that sector.
Recital 18
It is necessary to provide for a Standing Committee, the members of which are appointed by the Member States, with the task of cooperating in the efforts of the Commission to lessen any adverse effects on the free movement of goods.
Recital 19
This Directive should be without prejudice to the obligations of the Member States relating to the time limits for the transposition into national law of the Directives set out in Part B of Annex III,
Annexes
Indicative list of services not covered by the second subparagraph of point (b) of Article 1(1) Indicative list of services not covered by the second subparagraph of point (b) of Article 1(1)
1
Services not provided ‘at a distance’ Services not provided ‘at a distance’
Services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices:
a
medical examinations or treatment at a doctor's surgery using electronic equipment where the patient is physically present;
b
consultation of an electronic catalogue in a shop with the customer on site;
c
plane ticket reservation at a travel agency in the physical presence of the customer by means of a network of computers;
d
electronic games made available in a video arcade where the customer is physically present.
2
Services not provided ‘by electronic means’ Services not provided ‘by electronic means’
—
services having material content even though provided via electronic devices:
a
automatic cash or ticket dispensing machines (banknotes, rail tickets);
b
access to road networks, car parks, etc., charging for use, even if there are electronic devices at the entrance/exit controlling access and/or ensuring correct payment is made,
—
offline services: distribution of CD-ROMs or software on diskettes,
—
services which are not provided via electronic processing/inventory systems:
a
voice telephony services;
b
telefax/telex services;
c
services provided via voice telephony or fax;
d
telephone/telefax consultation of a doctor;
e
telephone/telefax consultation of a lawyer;
f
telephone/telefax direct marketing.
3
Services not supplied ‘at the individual request of a recipient of services’ Services not supplied ‘at the individual request of a recipient of services’
Services provided by transmitting data without individual demand for simultaneous reception by an unlimited number of individual receivers (point to multipoint transmission):
a
television broadcasting services (including near-video on-demand services), covered by point (e) of Article 1(1) of AMSD;
b
radio broadcasting services;
c
(televised) teletext.
Indicative list of the financial services covered by Article 1(4) Indicative list of the financial services covered by Article 1(4)
—
Investment services,
—
insurance and reinsurance operations,
—
banking services,
—
operations relating to pension funds,
—
services relating to dealings in futures or options.
Such services include in particular:
a
investment services referred to in the Annex to MIFID; services of collective investment undertakings;
b
services covered by the activities subject to mutual recognition referred to in Annex I to Directive 2013/36 of the European Parliament and of the Council ( 1 ) ;
c
operations covered by the insurance and reinsurance activities referred to in II of the European Parliament and of the Council ( 2 ) .
( 1 ) Directive 2013/36 of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87 and repealing Directives 2006/48/EC and 2006/49/EC ( OJ L 176, 27.6.2013, p. 338 ).
( 2 ) II of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) ( OJ L 335, 17.12.2009, p. 1 ).
PART A
Repealed Directive with list of the successive amendments thereto Repealed Directive with list of the successive amendments thereto
(referred to in Article 10)
Part 1, Title H of Annex II to Act of Accession 2004 OJ L 236, 23.9.2003, p. 68
Only as regards the reference, in point 2, to Directive 1998/34
Council Directive 2006/96/EC OJ L 363, 20.12.2006, p. 81
Only as regards the reference, in Article 1, to Directive 1998/34
Regulation EU No 1025/2012 of the European Parliament and of the Council OJ L 316, 14.11.2012, p. 12
Only Article 26(2)
PART B
Time-limits for transposition into national law Time-limits for transposition into national law
(referred to in Article 10)
Directive
Time-limit for transposition
98/34/EC
—
98/48/EC
5 August 1999
2006/96/EC
1 January 2007
Correlation Table Correlation Table
Directive 98/34/EC
This Directive
Article 1, first paragraph, introductory wording
Article 1(1), introductory wording
Article 1, first paragraph, point 1
Article 1(1), point (a)
Article 1, first paragraph, point 2, first subparagraph
Article 1(1), point (b), first subparagraph
Article 1, first paragraph, point 2, second subparagraph, first indent
Article 1(1), point (b), second subparagraph, point (i)
Article 1, first paragraph, point 2, second subparagraph, second indent
Article 1(1), point (b), second subparagraph, point (ii)
Article 1, first paragraph, point 2, second subparagraph, third indent
Article 1(1), point (b), second subparagraph, point (iii)
Article 1, first paragraph, point 2, third subparagraph
Article 1(1), point (b), third subparagraph
Article 1, first paragraph, point 2, fourth subparagraph, introductory wording
Article 1(2), introductory wording
Article 1, first paragraph, point 2, fourth subparagraph, first indent
Article 1(2), point (a)
Article 1, first paragraph, point 2, fourth subparagraph, second indent
Article 1(2), point (b)
Article 1, first paragraph, point 3
Article 1(1), point (c)
Article 1, first paragraph, point 4
Article 1(1), point (d)
Article 1, first paragraph, point 5, first subparagraph
Article 1(1), point (e), first subparagraph
Article 1, first paragraph, point 5, second subparagraph
Article 1(3)
Article 1, first paragraph, point 5, third subparagraph
Article 1(4)
Article 1, first paragraph, point 5, fourth subparagraph
Article 1(5)
Article 1, first paragraph, point 5, fifth subparagraph, introductory sentence
Article 1(1), point (e), second subparagraph, introductory sentence
Article 1, first paragraph, point 5, fifth subparagraph, first indent
Article 1(1), point (e), second subparagraph, point (i)
Article 1, first paragraph, point 5, fifth subparagraph, second indent
Article 1(1), point (e), second subparagraph, point (ii)
Article 1, first paragraph, point 11, first subparagraph
Article 1(1), point (f), first subparagraph
Article 1, first paragraph, point 11, second subparagraph, introductory sentence
Article 1(1), point (f), second subparagraph, introductory sentence
Article 1, first paragraph, point 11 second subparagraph, first indent
Article 1(1), point (f), second subparagraph, point (i)
Article 1, first paragraph, point 11, second subparagraph, second indent
Article 1(1), point (f), second subparagraph, point (ii)
Article 1, first paragraph, point 11, second subparagraph, third indent
Article 1(1), point (f), second subparagraph, point (iii)
Article 1, first paragraph, point 11, third subparagraph
Article 1(1), point (f), third subparagraph
Article 1, first paragraph, point 11, fourth subparagraph
Article 1(1), point (f), fourth subparagraph
Article 1, first paragraph, point 12
Article 1(1), point (g)
Article 1, second paragraph
Article 1(6)
Article 5
Article 2
Article 61 and 2
Article 3(1) and (2)
Article 63, introductory wording
Article 3(3), introductory wording
Article 63, second indent
Article 3(3), point (a)
Article 63, third indent
Article 3(3), point (b)
Article 63, fourth indent
Article 3(3), point (c)
Article 64, introductory wording
Article 3(4), introductory wording
Article 64, point c
Article 3(4), point (a)
Article 64, point d
Article 3(4), point (b)
Article 65 to 8
Article 3(5) to (8)
Article 7
Article 4
Article 8
Article 5
Article 91 to 5
Article 6(1) to (5)
Article 96, introductory wording
Article 6(6), introductory wording
Article 96, first indent
Article 6(6), point (a)
Article 96, second indent
Article 6(6), point (b)
Article 96, third indent
Article 6(6), point (c)
Article 97, first subparagraph, introductory wording
Article 6(7), first subparagraph, introductory wording
Article 97, first subparagraph, first indent
Article 6(7), first subparagraph, point (a)
Article 97, first subparagraph, second indent
Article 6(7), first subparagraph, point (b)
Article 97, second subparagraph
Article 6(7), second subparagraph
Article 101, introductory wording
Article 7(1), introductory wording
Article 101, first indent
Article 7(1), point (a)
Article 101, second indent
Article 7(1), point (b)
Article 101, third indent
Article 7(1), point (c)
Article 101, fourth indent
Article 7(1), point (d)
Article 101, fifth indent
Article 7(1), point (e)
Article 101, sixth indent
Article 7(1), point (f)
Article 102, 3 and 4
Article 7(2), (3) and (4)
Article 11, first sentence
Article 8, first paragraph
Article 11, second sentence
Article 8, second paragraph
Article 12
Article 9
Article 13
—
—
Article 10
Article 14
Article 11
Article 15
Article 12
Annex III
—
Annex IV
—
Annex V
Annex I
Annex VI
Annex II
—
Annex III
—
Annex IV
Footnote p0: Done at Strasbourg, 9 September 2015.