Directive (EU) 2015/1535 (the Directive) provides for a notification system allowing Member States and the Commission to check the compatibility of the notified draft legislation with EU law.
The Agreement on Technical Barriers to Trade (the TBT Agreement) is an agreement of the World Trade Organisation (WTO). It provides for a notification procedure allowing all WTO Members, including the EU and its Member States, to assess that technical regulations and conformity assessment procedures relating to products do not create unnecessary obstacles to international trade.
The 2015/1535 and the TBT procedures share the same philosophy - prevention of obstacles to trade – and have a similar coverage – technical regulations and conformity assessment procedures. However, some differences in terms of scope and procedure exist, and are highlighted below. When a notification under Directive (EU) 2015/1535 fulfils the conditions under the TBT Agreement, the draft measure must be notified under both instruments.
Criteria for notification
According to the Directive and subject to certain exceptions, any technical regulation on products and any rule on Information Society services must be notified. The Directive does not contain any "de minimis" rule relating to the impact of the draft measure on intra-Union trade.
The TBT Agreement provides the obligation to notify technical regulations or conformity assessment procedures only if the following two conditions are met:
- there are no relevant international standards (for technical regulations) or no relevant guides and recommendations issued by an international standardising body (for conformity assessment procedures) or the proposed technical regulation or proposed conformity assessment procedure is not in accordance with relevant international standardsor relevant guides and recommendations issued by an international standardising body;
- the technical regulation or conformity assessment procedure may have a significant effect on trade of other Members ("de minimis" rule).
Scope and definitions
The Directive provides for a notification of draft technical regulations and conformity assessment procedures on products as well as on Information Society services. The TBT Agreement only provides for a notification of draft rules on technical regulations and draft conformity assessment procedures relating to products. The 'technical regulation' concept in the Directive is therefore wider than that in the TBT Agreement since it also includes rules on Information Society services.
In addition, the TBT Agreement does not apply to sanitary and phytosanitary measures as defined in Annex A to the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). By contrast, the Directive applies to sanitary and phytosanitary measures.
Standstill period
The Directive lays down very strict standstill periods between the notification of a draft technical regulation and its adoption. The initial 3-month standstill period may be extended to 4 or 6 months if a Member State or the Commission issues a detailed opinion. It is extended to 12 or 18 months if the Commission decides to block the draft legislation for the purposes of harmonisation work at EU level. The Directive does not stipulate any interval between the adoption of a technical regulation and its entry into force.
The TBT Agreement does not provide for standstill periods. It only provides that a reasonable time must be allowed for other Members to make comments and that Members shall allow a reasonable interval between the publication of technical regulations or requirements concerning conformity assessment procedures and their entry into force. The TBT Committee has recommended allowing a minimum period of 60 days for comments and has encouraged the extension of this period to 90 days. The interval between the publication of a text and its entry into force should be 6 months.
Reactions
Under the Directive, Member States and the Commission may issue reactions to notified drafts in the form of comments and detailed opinions. The Commission may also block a notified legislation.
Under the TBT Agreement, Members may only issue comments on notified drafts and request a discussion on these comments. The notifying Member should take account of such comments and discussions.
Urgency
Both, the Directive and the TBT Agreement lay down special urgency procedures.
The Directive allows the urgent adoption of a technical regulation subject to its prior notification at the draft stage and its approval by the Commission.
The TBT Agreement allows the urgent adoption of legislation without prior notification at the draft stage. However, after adoption the Member concerned has to notify the adopted measure and explain the reasons justifying the urgency.
Consequence of non-compliance with obligations
In accordance with the case-law of the Court of Justice, non-compliance with the obligations of notification and respect of the standstill periods provided by the Directive lead to the unenforceability of the technical regulation in question.
Non-compliance with the notification obligation in the TBT Agreement involves the international responsibility of the WTO Member and can lead to a trade dispute in the framework of the WTO.