ISAP-Cesty do Evropské unie
Informační systém pro aproximaci práva

Databáze Cesta do Evropské unie

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Odbor kompatibility
s právem EU Úřad vlády ČR
Databáze č. 16
Cesta do Evropské unie
 Cesta do Evropské unie
Svazek :4. APROXIMACE LEGISLATIVY ČR A ES - TECHNICKÁ HARMONIZACE - EXPERTNÍ STUDIE - PROGRAM PHARE
Část :XI . SUMMARY
Kapitola :Text

Text:XI. SUMMARY

      A. Introduction

      The mutual relationship of legislation to technical standards can be characterised as a relationship between dynamically developing technical design of industrial products (technical elements) on the one side and legal rules on the other side. Solution of that mutual relationship has undisputed meaning for creation and functioning of the internal market.

      Second exceedingly important relationship is the relationship between operation of the principle of the free movement of goods and the principle of the protection of the public interest in life, health, safety work and environment. It has to be pointed out that the quality of the protection of public interest is mainly result of extent and quality of regulation of the technical elements in industrial products. Technical elements of industrial products are regulated especially by the technical standards.

      There is quite a number of state supervisory bodies in the Czech Republic and for quite a long time there was a set of legally binding technical standards, too. Together they corresponded to the centrally planed economy. Current development of the market economy requires efficient state administration. It means its deregulation and abolishment of unnecessary legal and operational instruments. This change which is under the way goes hand in hand with entire transformation of the legal order. As far as economy is concerned changes in the legal order are consistent with the Czech Republics obligations which follow from the Europe Agreement as well as with the harmonization of the Czech law with the EC law. Now it is obvious that obligations of the Europe Agreement go far beyond in respect to legal acts and technical standards and it is possible to imply from the provisions of the Articles 69-71 and 75 of the Agreement that our final solution is the system of the Community technical harmonization.

      Technical harmonization as it is defined by the EC legal acts means the complexity of legal, substantive and organizational issues. Continuously they are object of the solution process which is carried out not only by the institutions of the European Union and of its member states but by the states applying for membership, too.

      Technical harmonization applies in legislation, especially in legal rules with technical elements including regulation of the procedure of finding, assessment and declaration of conformity of the products qualities with the requirements of the norms. It applies to creation of the technical standards, too. Above mentioned technical norms become the instrument of regulation, namely in respect to industrial products requiring optimal solution of the relationship between the principle of the free movement of goods and the principle of safety of industrial products, i.e. protection of public interest in life, health, work safety and environment.

      Technical harmonization by solving the mutual relationship of legal rules to technical standards as well as to voluntary technical standards also solves one of the difficult problems of penetration of dynamic technical elements into legal order. Legal order is ruled by the principle of the legal certainty which means stability in time, too. This problem is not new, however the solution by the reference to technical standards in EC legal acts is new.

      In the Czech Republic technical standards (ČSN) as an instrument of the central regulation process were legal rules sui generis (valid and legally binding under the law). Therefore, question of legal nature of reference to technical standards more precisely reference to voluntary technical standards is extremely important there.

      Technical elements are included in many other international, Community and national documents. Often those documents are termed as technical rules or technical regulations. Large quantity and difference of the above mentioned documents cause technical barriers to trade in practice except of their operation in the process of consumption and use of the product.

      The Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations uses for the purposes of the preventive abolishment of technical barriers to trade the term technical regulation as a generic term for technical documents. The term technical regulation de facto means also laws and legal rules. Directive also defines standstill clause which is principally influential for national legislative procedure. Therefore, it is important to examine legal nature of the term technical regulation for the Czech Republic, too.

      Application of the technical harmonization can not be dissociated apart from the problem of implementation of directives on new approach. Therefore, the question of approximation of laws of the EU member states as well as approximation of laws of the associated countries with the EC law is subject to proper attention.

      Solution of the relationship between legal rules and technical standards which is in the EC law viewed as a relationship of mutually co-operated parts is important for appropriate application of the policy of conformity assessment procedure. That policy together with new approach to technical harmonization creates prerequisites not only for functioning of the internal market but for creation competitive, flexible and expanding market scene, too.

      The meaning of the above mentioned issues formed the background for the order of that comparative study.

      Solution of the comparative study was divided into 6 for practice important topics. Other chapters of the study include: introduction, amendment to technical harmonization, summary of partial conclusions included in relevant chapters and suggestions for further proceeding. Special attention was paid to practical experiences and theoretical knowledge resulting from the process of approximation of laws and from the process of application of technical harmonization in particular EU member state. Germany was chosen as a relevant EU member state. Knowledge and suggestions of the expert assigned by the customer are included in the appendix to the study.

      Brief analysis of the parts of the Europe Agreement (free movement of goods, safety of industrial products, technical standards and technical regulations) which relate to the reference on technical standards comes before the study of the particular questions connected with the reference itself.

      Presented study concentrates on following topics:

      1. Direct effect of the Europe Agreement provisions concerning the free movement of goods and safety of industrial products.
      Interpretation of the Article 75 of the Europe Agreement

      · Principle of free movement of goods and safety of industrial products

      · Basic instruments of technical harmonization in the EU

      · Technical harmonization and the Europe Agreement - Article 75

      · Direct effect of the Europe Agreement provisions

      2. References to technical standards and precondition of safety industrial products. Term legal presumption of conformity according to the EC legal acts.

      · Legal basis of the new approach to technical harmonization.

      · Precondition of safety industrial products and its legal nature.

      · Liability in damages caused by dangerous products under the legal rules valid in the Czech Republic.

      3. Legal nature of references to technical standards in legal rules of the Czech Republic.

      · Definition of the term technical standard"

      · Reference to technical standard in the legal rules.

      · Practice in the Czech Republic until now.

      · Brief characteristics of the state in the EU

      4. Legal nature of the technical regulation under the international, Community and national law.

      · Analysis of the content of technical regulation.

      · Analysis of the formal aspect of technical regulation.

      5. Approximation of laws of the EU member states.

      · Legal framework.

      · Development.

      · Object of harmonization.

      · Instruments of harmonization.

      · State of implementation.

      6. Approximation of laws of the associated country with the EC law.

      · Legal framework.

      · Development.

      · Object of harmonization.

      · Instruments of harmonization.

      · Partial conclusion - condition of harmonization.

      B. Summary and generalization of conclusions
      Particular topics were analysed from the Czech Republics needs point of view, in particular from the point of view of current stage of development of the market economy. Partial conclusions which come from particular chapters may be summarized and generalised as follows:

      1. The principle of free movement of goods is one of the main principles of the EU internal market. The principle of free movement of goods includes in particular:
      ) abolishment of all customs duties and charges having equivalent effect to customs duties on imports and exports among the EU member states; and
      ) abolishment of quantitative restrictions on imports and exports of goods among the member states as well as abolishment of any measure having equivalent effect to quantitative restriction among the EU member states (Articles 9 - 37 of the Treaty establishing the European Community).
      It is important that those rules also apply to goods from third countries which are in free circulation in EU member states (Article 9 para. 2 of the Treaty establishing the European Community), i.e. also for goods exported to the EU from the Czech Republic.

      2. From the point of view of the Czech Republics legal order the Europe Agreement is an international treaty, legally binding for the Czech Republic. It was published in Collection of Laws. It means that application of the Europe Agreement in the Czech Republic is different from the application of the EU secondary law in the EU member states. Secondary law is used for the technical harmonization inside of the EU.

      3. It may be deduced from the text of Article 75 of the Europe Agreement which contents obligations for the Czech Republic (to co-operate with the aim to achieve the Czech Republics full conformity with the Community technical regulations and European standardization and conformity assessment procedures; to promote the use of Community technical regulations and European standards and conformity assessment procedures) that the Czech Republic commited itself to an introduction of the system of technical harmonization.

      4. Technical harmonization is a precondition of economical relations development to a considerable extent.

      5. The provisions of the Articles 26 and 27 of the Europe Agreement are important for export of goods from the Czech Republic. Under the Article 26 of the Europe Agreement both parties oblige themselves not to introduce any new customs duties on imports or exports or charges having equivalent effect to customs duties as well as not to increase duties and charges already applied in their mutual trade. Both parties shall not introduce new quantitative restrictions and measures having equivalent effect on imports and exports and they shall not make those already existing more restrictive. Under the Article 27 of the Europe Agreement both parties shall refrain from any measure or practice of an internal fiscal nature establishing directly or indirectly discrimination between the products of one party and like products originating in the territory of the other party.

      6. Article 75 is rather programmatic in nature and it is probably impossible to imply any direct clear obligations from it. It is not considered as a directly effective provision.

      7. Technical barriers resulting from different regulations of member states are considered as the most effective trade barriers, especially those ones in the field of protection of citizens health and security as well as in the field of consumer protection and environment protection, They include regulations on technical parameters of products as well as existing certification, inspection and control procedures necessary for attestation of product technical parameters.

      8. System of certification together with the process of technical harmonization and procedures assessing conformity with legal rules with technical elements (those two shall make the trade inside of the EU, respectively trade with associated countries easier) shall reduce the risk of dangerous products entering above mentioned market. Consistent harmonization of technical standards, respectively harmonization of national legal rules which include technical elements with the requirements of respective directives of the EU may lead to this result.

      9. It is necessary to create further organizational prerequisites in order to achieve required safety of industrial products. Namely it means constituting appropriate bodies being able to ensure tasks of harmonization of technical standards as well as setting centres for carrying out certification procedures. However those measures presuppose also changes of respective private law provisions on liability for damages and on obligation to compensate damages. Those private law provisions form part of the national legal order of the EU member states, respectively associated countries. In order to finish the whole system of technical harmonization and to abolish trade barriers among the states while ensuring the same level of industrial products safety it seems necessary to accept even measures for unification of the above mentioned private law provisions.

      10. It follows from the accomplished analysis that the legal assumption of safety of certified product is open to challenge under the Czech legal regime of liability for damages.

      11. Current methods of application of the Czech technical standards in legal regulation process are not sufficient solution and their practical functioning can bring about problems difficult to solve. It is obvious from the brief description in chapter IV. Therefore it is necessary to apply new approach of different quality which would be in full conformity with procedures applied in the EU.

      12. As it follows from analysis of particular international treaties and Community documents it can be argued that technical regulation is not legal regulation either as substantive or formal aspects of it are concerned in sense that it is passed by legislative bodies during legislative procedure. Legal rule as an informative document of the normative nature may for certain purposes (for example notification purposes) come under the term information document of generic nature (for example under purposive term technical regulation ).

      There are two similar arrangements in practice:
      · Definition of technical regulation under the Agreement founding World Trade Organization combines technical nature with binding character. However binding character itself is not sufficient for identification of technical regulations and legal rules.
      · Definition of technical regulation included in Directive 83/189/EEC applies to laws, regulations, voluntary agreements. It is open definition and it is meant for the needs of information process only. Under this definition the term technical regulation also applies to legal rules namely if they include technical elements. However technical regulation can not be identified with the term legal rule because of the broader sense of technical regulation.

      13. It is being proved that authors of the directive 83/189/EEC included all forms of documents with technical elements as an object of information process in order to abolish technical barriers to trade by preventing them already during their creation. They named all those documents by the term technical regulations ("technical rulings"). Consequently legal rules come under the generic term technical regulation for the purposes of information process.

      14. Directive 83/189/EEC is often characterised as a standstill directive. Therefore it is necessary, especially from the point of view of the legislative process to analyse influence of that directive introduction on the creation of legal rules which come under the term technical regulation as it is defined by that directive. Standstill means period of unactivity. It starts by the notification of technical regulation prepared in the member state to the EC Commission and to other member states. It enables common review of the proposal or preparation of the similar directive of the Council or of the Commission. Member state in compliance with obligations coming from the Article 5 of the EC Treaty shall delay introduction of the prepared measure (publication of technical regulation) for sufficient period of time. It follows from the Article 213 of the EC Treaty that Commission may collect all the information and carry out any kind of control necessary for exercising of its tasks in the frame of limits and under the conditions set by the Council.

      15. The Czech Republic shall bear in mind influence on national legislative procedure of the creation, amendment or abolition of legal rule with technical elements which comes under the information process according to Directive 83/189/EEC.

      16. Statistical data on condition of implementation of the EC legal acts into national legal orders of member states concern only directives because of the above mentioned reasons. Results of implementation process are rather different according to the field of legal regulation and according to particular member state. Data on condition of directives implementation were published in February 1996. They concerned directives which shall be passed and consequently implemented by 31 December 1995 according to the 1985 White Paper. Not to speak about the results of technical harmonization, the implementation of Community acts requiring it, i. e. directives, runs from 69% (public procurement) up to 100% (transport services) according to the field of legal regulation.

      It has to be noted that according to the same statistical survey the highest degree of implementation of the above mentioned Community legal acts was in Denmark (99,1%) and the lowest degree was in Austria (87,4%) by 31 December 1995.

      17. Implementation of the EC acts in the legal order of the Czech Republic.

      ) Mainly it is argued that the Czech legal order is compatible with the EC law at about 50 - 55%. This estimation is considered as a realistic one. Higher degree of compatibility (for example of 65%) is viewed as a plausible.

      ) This estimation can not be identified with the participation of various state bodies, in particular legal departments of ministries and other central bodies on the reached degree of compatibility. It has to be beard in mind that EC law has in many ways the same base as the Czech law. It is because of the continental law system. In order to find out a contribution of the Czech legislation to the degree of compatibility the above mentioned data has to be lowered at about 25 - 30%. Austrian lawyers were of the same opinion during the process of consultation.

      C. SUGGESTIONS FOR SOLUTION
      Suggestions for solution of the compatibility of the Czech law with the EC law, in particular from the relationship of legislation to creation of technical standards point of view, are represented by the following ideas:

      · White Paper in brief explanation of the most important principles of the free movement of goods primary stresses that each member state of the EU must be able to create conditions of goods production corresponding to Community standards (it is concern of each state exporting to the EU). However it must also guarantee that all the goods on its market confirm with this standards. Therefore the system requires not only necessary legal framework but entire set of technical and other structures (laboratories, etc.) which is necessary for effective functioning of that legal framework (2.20 of the White Paper).

      · Technical (safety) requirements on products must be defined by legal rules. General definition of technical requirement shall be applied in appropriate cases. It enables to prove fulfilment of the requirement by non-binding way.

      · In context of the legal rule defining technical requirements on products in general it is necessary to publish Czech technical standards harmonized with that rule. Those technical standards shall regulate in definite way issues which are generally regulated by the legal rule (basic safety requirements); notification of harmonized ČSN publication means publication in Official Journal of Office for technical normalization, metrology and state testing.

      · It is necessary regulate by law assumption that the evidence of compliance with harmonized Czech technical standard (i.e. that qualities of product fulfil requirements of the norm) is one of the evidences which prove that requisite given by legal rule was fulfilled.

      Such a solution enables:

      · that technical details shall not be load on the legal rules

      · that legal rules shall not create barriers to technical progress

      · that Czech technical standards shall have the same legal nature as the national standards of the EU member states and that they shall not create technical barriers to international trade,

      · that entrepreneurs shall be certain about the general acceptance of the solution included in harmonized Czech technical standard and at the same time they could apply another technical solution in their own responsibility,

      · that there shall not be legal uncertainty about the legal nature of reference to Czech technical standards in legal rules,

      · that introduced system of technical harmonization shall be compatible with the regulation of technical harmonization in the EU.

      Also it can be said that legislative arrangements necessary to accept in the Czech Republic shall be rules of public law.

      Object of the above mentioned regulation is namely:

      · definition of particular obligations for producers, importers and other participants of the introduction process of new products onto the market,

      · prove of conformity with the requirements on health protection and consumer safety of the products in order to comply with the EU requirements,

      · creation of system of certification, authorization and accreditation as a necessary base for proving of those requirements,

      · supervision of the obligation fulfilment during the prove of conformity with requirements on products safety,

      · sanctions for those who would breach obligations in that field,

      · definition of obligation to inform which is necessary for the fulfilment of intended function of the system of technical harmonization.

      It is obvious that technical harmonization should go hand in hand with harmonization of rules on compensation for damages in order to reach the aim of free circulation of safety products inside of entire European Union.
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