Why is 98/34 important? / decision tree
Regulation of products and electronic services bans relating to products and electronic services
The technical standards directive (98/34/ec)
The following pages provide a diagnostic tool to determine whether a measure requires notification to the commission under articles 8 - 10 and whether a standstill period applies.
Before you use the diagnostic tool here are some key points to note on the requirements of the Directive:
- Subject to limited exceptions, the Directive requires written notification (draft) to the Commission of measures such as mandatory rules, guidance or documents which are intended for users to follow (referred to as ‘technical regulations’) which apply in the UK or a major part of it and regulate:
- industrially manufactured or agricultural products (including bans on products, rules about their composition, packaging or testing and rules that relate to their subsequent use), or
- services provided on a commercial basis over the internet or through any similar medium (these are referred to as ‘information society services’).
- A measure is a ‘draft’ if the text is at a stage of preparation at which substantial amendments can be made (Article 1(12)) (Thus, for example, it is too late to make a notification in relation to an SI if the Minister has already signed it.)
- Subject to limited exceptions, after notification to the Commission, a standstill period of a minimum of 3 months (which can be extended in the event of objections from the Commission or another Member State) applies during which the draft measures may not be adopted. (NB Any amendments of substance made to the draft after notification will require re-notification.)
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Adoption of a measure regulating goods or electronic services without following the procedure in the Directive renders the measure unenforceable. For this reason if in doubt it is safer to notify a measure in draft. (It also exposes the UK to the risk of infraction proceedings.)
- The directive applies not only to Bills and Statutory instruments but also to soft law such as guidance (An example of this is the guidance produced in relation to the Building Regulations which the UK has notified in draft) The test is whether the rule is in practice followed whether or not there is a strict legal requirement to do so (Fiscal rules that mean that it is advantageous to manufacture products in a particular way would for example be caught).
- Notification under 98/34 may be necessary even where the rules implement a Directive.
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Follow the questions on the next page to see whether your draft rules/ guidance etc. are notifiable and whether you need to observe a standstill period.
