ANNEX
Letter from the Clerk of the Committee to the Secretary
General, the Director-General, Legal Serice, the Director-General,
DG III and the Head of Unit, DG III/B/1 of the European Commission
Notification of technical standards under Directive 83/189/EEC
The House of Commons Deregulation Committee scrutinizes proposals
for Orders and draft Orders laid under sections 1 to 4 of the
Deregulation and Contracting Out Act 1994 ("the 1994 Act").
The 1994 Act established a new category of legislation: a means
by which, in certain circumstances, Acts of Parliament can be
amended or repealed not by Bill (primary legislation), but by
secondary legislation. The procedure laid down in the 1994 Act
explicitly requires Ministers to consult interested parties before
initiating legislation. After the consultation process, specific
proposals for legislation are laid before Parliament so that both
Houses can take evidence, receive representations, and report
their recommendations before the legislation itself is introduced.
On 1 June, the Department of Trade and Industry (DTI) laid a proposal
before Parliament for an Order to amend the Weights and Measures
Act 1985 ("the 1985 Act"). The Committee is currently
taking evidence on this proposal. The 1985 Act prohibits the use
for trade of certain prescribed weighing and measuring equipment
unless it has been tested, passed and stamped (verified) as fit
for use by an inspector of weights and measures.
The proposed Order contains three separate provisions:
(i) to permit certain manufacturers, installers and repairers,
approved by the Minister, to conduct their own testing, passing
and stamping of weighing and measuring equipment ("self-verification");
(ii) to permit manufacturers who require equipment to be passed
by an inspector (ie those not approved as self-verifiers under
(i) above) to submit a test report to the inspector from a third
party tester established within the European Economic Area (EEA);
(iii) to enable manufacturers who are approved verifiers (and
whose approval so permits) to apply the requisite stamp prior
to the equipment being tested and passed.
The Commission has already had cause to comment on an earlier
version of this proposal, which was laid before the previous parliament
in 1996. A manufacturer of beer glasses complained that the proposal
as it stood would constitute a quantitative restriction on trade,
since self-verification was not available to "overseas"
(ie non-British) manufacturers abroad (Complaint P/96/4530, dealt
with by DG XV/B/2). Representatives of the DTI met with officials
from DG XV in January 1997 to discuss the matter. As a result
of this meeting, the DTI wrote to DG XV in March 1997, saying
that it intended to modify the proposals to accommodate self-verification
activities being undertaken outside Great Britain. DG XV subsequently
informed the DTI that the case investigating Complaint P/96/4530
was closed on 15 October 1997.
The DTI officials also argued at the meeting in January 1997 that
the proposal would not constitute a draft technical regulation
within the meaning of Directive 83/189/EEC. The DTI informs us
that representatives of DG III agreed at the meeting that the
DTI officials' view that the proposals were not notifiable was
as valid an interpretation as that held by DG III, and that the
proposals fell into a "grey area". The DTI has informed
the Committee that it does not intend to notify the new proposed
Order to the Commission under Directive 83/189/EEC.
On our understanding of the provisions of Directive 83/189, measures
relating to the testing of weighing and measuring equipment for
which strict statutory requirements are prescribed could qualify
as a "technical specification" within the meaning of
Article 1 of the Directive, since they could be "requirements
applicable to the product as regards...testing and test methods...and
conformity assessment procedures". The Committee is concerned
that any future Deregulation Order which was not notified would
be unenforceable as against individuals. We would, therefore,
be grateful for the Commission's view as to whether the proposed
Order is notifiable.
The Committee's period of consideration of the proposal is strictly
limited, and this matter is of profound importance to its scrutiny.
The Committee is due to consider this proposal again at its meeting
on 7 July. I would be most grateful if a reply to this letter
could be received by Thursday 2 July. The Committee may also wish
to take further oral evidence on the matter if it can not be resolved
by correspondence.
24 June 1998
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