European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The existence of national technical rules applied before the placement on the market may restrict the free movement of goods. Those rules are justified only if they meet the public interest objective recognized by EU law, are non-discriminatory and proportionate and comply with the objective pursued without going beyond what is necessary to achieve it. The object of Regulation No 764/2008 of 9 Jul …

Procedures relating to the application of certain national technical rules

The existence of national technical rules applied before the placement on the market may restrict the free movement of goods. Those rules are justified only if they meet the public interest objective recognized by EU law, are non-discriminatory and proportionate and comply with the objective pursued without going beyond what is necessary to achieve it. The object of Regulation No 764/2008 of 9 July 2008 is to lay down procedures making it possible to limit the possibility of technical rules creating unlawful obstacles to the free movement of goods between Member States . 

The regulation defines technical rules as those stipulating:

"i) the characteristics required of that product or type of product, such as levels of quality, performance or safety, or dimensions, including the requirements applicable to the product or product type as regards the name under which it is sold, terminology, symbols, testing and test methods, packaging, marking or labelling, or

ii) any other requirement which is imposed on the product or type of product for the purposes of protecting consumers or the environment, and which affects the life-cycle of the product after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition, nature or marketing of the product or type of product." (Regulation No 764/2008, Article 2(2)) .

The competent authorities of a Member State must inform the economic operator concerned of their intention, on the basis of a technical rule, to adopt any measure - except for court decisions - which would hinder the free movement of a product or a type of product lawfully manufactured or marketed in another Member State, the direct or indirect effect of which is the prohibition of the placing on the market of that product or type of product, its modification or additional testing before it can be placed or kept on the market or its withdrawal from the market . The operator has at least twenty working days in which to submit comments. The decision is then taken and notified to the operator concerned and to the Commission. Except where there is serious risk to the safety and health of the users or on grounds of public morality or public security, the marketing of the product in question will not be suspended during that procedure.

A preventive control of the draft technical rules is also established by Directive No 2015/1535, which makes the Member States subject to an obligation of prior notification . The adoption of the draft is postponed for a minimum period of three months from the notification (Directive No 2015/1535, Article 6), which may be increased to six months if the Commission or another Member State delivers a detailed opinion to the effect that the measure envisaged may create obstacles to the free movement of goods. The detailed opinion delivered by the Commission within the framework of the procedure of notification of the draft technical regulations does not constitute a formal notice within the meaning of Article 258 TFEU where the State to which it is addressed has not infringed European law, since the measure exists only in draft form . 

Regulation (EC) No 764/2008 of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC, OJ, L 218, of 13 August 2008, 21 to 29, entered into force on 13 May 2009.

See also on the concept of technical rules: Case C-267/03 Lindberg [2005] ECR I-3247, LawLex200900001338JBJ, finding that a prohibition may constitute a technical rule where it leaves no room for any use of the product other than a purely marginal one or where it significantly influences the composition or nature of the product or its marketing; Case C-279/94 Commission v Italy [1997] ECR I-4743, LawLex200900001371JBJ, which asserts that national legislation which defines a characteristic required of a product does not constitute a technical rule which has to be notified; See, also, Case C-65/05 Commission v Greece [2006] ECR I-10341, LawLex200900001091JBJ.

Directive No 2015/1535 of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, repealing and replacing Directive No 98/34 of 22 June 1998.

Case C-341/97 Commission v Netherlands [2000] ECR I-6611, LawLex201100000320JBJ; Case C-230/99 Commission v France [2001] ECR I-1169, LawLex200900001307JBJ.

European Business Law

27. Procedures relating to the application of certain national technical rules

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27. Procedures relating to the application of certain national technical rules

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Les notions juridiques connexes

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