The creation of a single European economic area based on a common market was the fundamental objective of the Treaty of Rome. The common market was a stage in the multinational integration process, which, in the words of a Court of Justice (Case 15/81) ruling, aimed to remove all the barriers to intra-Community trade with a view to the merger of national markets into a single market, giving rise to conditions as close as possible to a genuine internal market.

It is worth noting that the Treaty of Lisbon ignores the concepts of the ‘single market’ and of the ‘common market’. It replaced the words ‘common market’ (of the treaty of Nice) by the end result of this stage of the integration process, the ‘internal market’, which according to Article 26 of the Treaty on the functioning of the EU (ex Article 14) comprises “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the treaties”.

The completion of the internal market required that both tariffs and technical barriers to trade had to be disbanded. While the elimination of tariffs and quotas was completed by the customs union, in July 1968, the remaining technical obstacles to free movement were a much harder nut to crack.

A technical trade barrier usually creates some type of financial burden that raises the cost of either exporting or importing goods. In most cases, technical barriers to trade result from protectionist measures introduced to safeguard local industry.

The judgement of the Cassis de Dijon of 1978 – which established the principle that any product lawfully manufactured and marketed in a member state should in principle be admitted to the market of any other member state – set the stage for the elimination of technical barriers introduced to protect national industry.

In order to further safeguard the principle of the free movement of goods, in 1983 the Commission adopted a procedure for the provision of information by the member states on any new technical standards and regulations that they envisage to avoid the setting up of any new technical trade barriers.

The procedure, commonly known as the 98/34 Notification Procedure, obliges member states to notify their draft technical regulations related to all products and to information society services, mainly in the non-harmonised areas.

A technical trade barrier usually creates some type of financial burden that raises the cost of either exporting or importing goods

This procedure allows new barriers to the internal market to be detected before they have any negative effects, thus avoiding long and costly infringement proceedings.

The procedure imposes an obligation on member states to make available draft texts of new regulations and their translations to be made available to the Commission, member states and the public. Thus, economic operators get acquainted with the rules proposed by the countries in which they market their products. The Commission and the other member states can react in specific forms if the draft appears incompatible with EU legislation.

The notified drafts and their translations in all EU languages are available to the public on the TRIS (Technical Regulations Information System) database. Also, interested parties can subscribe to the 98/34 mailing list and receive automatically in their mailboxes all new notifications in the area(s) of their choice. They have the possibility to communicate to the member states and to the European Commission their concerns on a given notified draft. The position papers should be sent well ahead of the end of the standstill period normally of three months in order to be taken into account during the analysis of the notified draft.

As a member state, Malta also has to notify draft regulations falling under the 98/34 Directive. Malta is one of the member states with the lowest number of notifications submitted. Since Malta joined the EU in 2004, a number of draft regulations were submitted by the govern­ment under the 98/34 Notification Procedure.

The draft regulation Production and Sale of Dairy and Traditional Dairy Products Rules, 2014, was undergoing the standstill process which ended on July 3. If the Commission and the other member states have not submitted any detailed opinion by that date, the draft regulation can become a law.

If the Commission or any other member state submitted a detailed opinion where they consider that the draft regulation conflicts with EU legislation, an extended standstill period of another three months comes into force for the member state to react. In most cases, the member state carries out the necessary amendments and in some cases also retracts the draft text.

In order to safeguard the remote gaming industry, which is an important industrial sector, Malta has always reacted whenever other member states tried to restrict or discriminate online gaming by enacting protectionist measures. In most cases, member states had to modify or eliminate completely such restrictive measures.

The adoption of a technical regulation by a member state without resorting to notify the draft text is considered as a breach of the directive constituting a procedural defect which renders the regulation inapplicable and a Court of Justice judgment further ruled that provisions in the unnotified regulations are unenforceable against individuals.

Francis E. Farrugia is the managing director of Enterprise Solution.