ANNEX
Letter from the Solicitor's Department, Department
of Trade and Industry to the Clerk of the Committee
The Department believes that the Committee may find it of assistance
if the Department provides a full explanation of the reasons why
it is of the firm view that the proposals in the Deregulation
(Weights and Measures) Order do not amount to a draft technical
regulation for the purposes of the Directive and to provide some
background information concerning Departmental policy in relation
to the Directive; the Committee will be aware of the fact that
the Department has policy responsibility within the UK for the
Directive.
The Department's proposals, which relate to weights and measures
legislation within its responsibility, have been considered not
only in context of weights and measures regime but also against
the requirements of the Directive with policy and legal input
from those within the Department responsible for the Directive.
It has been agreed that I should direct this letter to you as
I am responsible both for advice to the Department in relation
to weights and measures legislation and in relation to the Directive.
Firstly, it is important to focus on the proposals for amendment
to the Weights and Measures Act 1985. Although the proposals are
regarded as a step forward in removing burdens on business they
do not represent a radical change to the existing structure of
the legislation. The proposals do not alter or affect the current
legislative provisions in the 1985 Act insofar as those provisions
relate to the product; in this case weighing and measuring equipment
to which section 11 of the 1985 Act apply. The object and effect
of the proposals is to maintain intact and unchanged the requirements
of verification, so that testing, passing and stamping of the
product are untouched, whilst permitting a wider class of persons
who are approved to do so, "approved verifiers" in the
language of the draft Order, to undertake those verification activities.
It has been fundamental to the development of the Department's
proposals that no changes occur in respect of verification in
the context of the draft Order. Indeed, when the proposals were
in the early stages of their development a suggestion that they
could be expanded to accommodate marking changes had been rejected
as this would stray from the focus of the proposals which is restricted
to the introduction of a wider class of persons who could, with
permission, undertake the same verification activities in relation
to the product as are currently undertaken in accordance with
the existing legislative provisions.
The proposals do not seek to change the verification requirements
in relation to the product; testing, passing and marking remain
the same.
Turning to the requirements of the Directive, the Committee will
be aware of the fact that member States are obliged to notify
draft technical regulations to the Commission and other member
States pursuant to its Article 8. This obligation requires member
States, not the Commission which is not afforded a role in the
assessment of the notifiability of the member State's measures,
to assess the measure they propose introducing to see if it constitutes
a draft technical regulation for the purposes of the Directive.
Draft technical regulations are defined as:-
"the text of a technical specification or other requirement,
including administrative provisions formulated with the aim of
enacting it or of ultimately having it enacted as a technical
regulation...".
To satisfy that definition it is a prerequisite that the measure
is a "technical specification or other requirement".
It is submitted that for the purposes of the Department's proposal
the definition of "other requirement" has no relevance.
However, the Department has on several occasions throughout the
development of its proposals considered those proposals against
the definition of "technical specification". As the
Committee is aware a "technical specification" is:-
"A specification contained in a document which lays down
the characteristics required of a product such as levels
of quality, performance, safety or dimensions, including the
requirements applicable to the product as regards the name
under which the product is sold, terminology, symbols, testing
and test methods, packaging, marking or labelling and conformity
assessment procedures; ...production methods and processes relating
to....products, where these have an effect on their characteristics".
(My emphasis).
For the measure to be a "technical specification" it
must prescribe characteristics required of a product. These proposals
do not include such prescriptions.
In the pre-penultimate paragraph of your letter to the Secretary-General
you have specifically made reference to certain aspects of the
definition of "technical specification" but it is submitted
that the proposals do not change existing requirements affecting
the product. These proposals concern themselves only with authorisation
of individuals to undertake matters which are already prescribed
in respect of the product, no new verification requirements are
introduced.
Outside of these proposals the Department has in the past and
will continue to prescribe requirements relating to the product.
Such requirements have amounted to, and will amount to, technical
specifications for the purposes of the Directive and they have
been and will continue to be notified under the Directive as draft
technical regulations. For example, there are two exercises affecting
the weights and measures regime associated with the proposals
which are not being introduced under the Deregulation and Contracting
Out Act 1994. Those exercises necessitate changes to the existing
testing and marking requirements for certain equipment and both
have been notified as draft technical regulations under the Directive
and have successfully gone through the standstill period without
detailed comments (the draft Measuring Equipment (Liquid Fuels
and Lubricants) (Amendment) Regulations and the draft Weights
and Measures (Prescribed Stamp) (Amendment) Regulations).
As I noted earlier in this letter the Department is responsible
for policy on the Directive. The Department regards the transparency
aspects of the Directive as being of vital importance in the context
of the single market and encourages notification of measures in
those areas where the assessment does not admit of a clear answer.
Those responsible for the Directive (and myself as their adviser)
had considered the weights and measures proposal against the scope
and requirements of the Directive and are of the view that the
proposal is not notifiable.
As you indicate in your letter, the Department's officials attended
a meeting with European Commission officials from DG XV and DG
III in January 1997. Those attending the meeting from the Department
spanned its responsibilities for weights and measures legislation,
the Directive and policy on the single market. The correspondence
with the Commission both before and after the meeting advised
the Commission of the Department's assessment of the proposal
against the Directive, including in the letter of March 1997 the
Department's position that the proposal was not notifiable and
that it would not be notified. That letter was copied to DG III.
The Department has received no representation from the Commission,
either to its officials with responsibility for weights and measures
matters or to those with responsibility for the Directive; the
latter being in regular contact with DG III. In addition, the
Department is unaware of any previous notifications, whether by
the UK or other member States, in similar circumstances to this
proposal.
If the Department assessed the proposal as being notifiable it
would notify the proposal. However, the Department is of the view
that the proposal does not contain technical specifications and
it has been, and continues to be, UK policy in relation to the
Directive that measures that concern the authorisation of actions
by individuals (or organisations) or not within the scope of the
Directive. That approach has been followed since the adoption
of the Directive and it is an approach that is known to the Commission
and has not been the subject of dispute. Further, the provisions
of the Directive oblige member States, and not the Commission,
to assess the notifiability of the measures they propose introducing
and recent negotiations on a third substantive amendment to the
Directive have been resisted. Of course, ultimately it would be
for the European Court of Justice to decide whether a measure
should have been notified.
It is not the policy of the UK to encourage notification of measures
in draft in circumstances where assessments have been made that
these do not constitute draft technical regulations for the purposes
of the Directive. This is for a variety of reasons. First, the
Directive relates to matters which are not occupied at Community
level and which may be introduced and maintained at national level,
subject to compatibility with the Treaty. As a consequence it
is considered important to maintain the distinction between national
activity and Community activity. Secondly, although there may
be occasions where notification of a particular measure may not
present a problem, those responsible for the Directive would not
wish to find that unwelcome precedents were being set which provided
obstacles to an approach the UK may wish to take in relation to
other matters. Thirdly, the language of the Directive is clear
about what must be notified; only draft technical regulations.
Fourthly, it cannot be guaranteed that other member States would
adopt a similar approach and this could prejudice uniformity of
transparency and interpretation of the Directive. Finally, there
is no evidence that the Commission would welcome "speculative"
notifications.
30 June 1998
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