Article 237 of the EEC Treaty provides that "Any European State
may apply to become a member of the Community. It shall address its
application to the Council, which shall act unanimously after
consulting the Commission and after receiving the assent of the
European parliament which shall act by an absolute majority of its
component members".
Conditions and criteria for membership of the associated
countries from Central and Eastern Europe have been set out by the
European Council meeting of Copenhagen in June 1993. The European
Council agreed that the associated countries that so desire shall
become members of the European Union. Accession will take place
as soon as the associated country is able to assume the obligations
of membership by satisfying the economic and political
conditions required as set out in the conclusions of
that meeting.
The European Council meeting of Essen in December 1994 while
approving a strategy to prepare the associated CEEC for accession
emphasised that the essential element of this strategy is the
progressive preparation for integration into the internal market of
the European Union.
The phased adoption of the Union’s internal market acquis
(progressive harmonisation of legislation) will assist the process
of accepting the existing body of EC legislation related to free
movement of goods upon accession.
1. Harmonisation of legislation - the White Paper
The European Council meeting of Cannes in June 1995 welcomed the
White Paper prepared by the Commission on preparation of the
associated countries for integration into the internal market of
the Union at the time of their accession. It considered that the
White Paper is a useful guide for those countries in the context of
the process of reform already initiated and of implementation of
the Europe Agreements.
The White Paper emphasises the importance of the internal market
for achieving the objectives of the Union. In particular the
internal market contributes to sustainable, balanced and
environment-friendly growth, to greater economic and social
cohesion, to a high level of employment and social protection and
to a higher standard of living and a higher quality of life. The
internal market comprises an area without internal frontiers in
which the free movement of goods, persons, services and capital is
ensured. It requires a high level of mutual trust and equivalent
regulatory approaches.
The successful accomplishment of the task of preparing for
integration into the internal market presupposes appropriate
assistance by the Community and its Member States. Improved
co-ordination in granting assistance in this area will raise its
effectiveness.
At the same time the establishment of an internal structure in
Bulgaria in charge to make full use of the offered facilities will
contribute to the success of national efforts.
It is of a particular importance to draw on the experience of
Member States in transposing Community law into national
legislation (an indispensable condition for the proper functioning
of the internal market). It is considered that the proper
application of Community law depends on: proper and effective
transposition of common rules; proper administrative co-operation;
confidence and openness between administrations; effective,
efficient and uniform application of legislation in all Member
States.
To this effect the experience of individual Member States in
transposing the 219 measures listed in the 1985 Single Market White
Paper will be of great help to Bulgaria.
It is understood that the creation of the conditions for
establishing a single market is dependant upon putting into place
legislation and regulatory systems, standards and certification
methods compatible with those of the European Union.
2. The internal market - objectives and framework
The internal market initiative was launched the mid-1980s with a
view to refocusing and revitalising EC integration. The elements
were out in the Commission’s White Paper on Completing the Internal
Market of 1985. This identified a wide range of barriers perceived
to hamper the flow of goods, services, persons, and capital among
Member States, and established a timetable for their abolition by
the end of 1992.
The Single European Act of 1987 reinforced the Communities’’
legal and institutional framework in view of the internal market
objectives. The Single European Act introduced into the EEC Treaty
the target date of 31 December 1992 for achieving "an area without
internal frontiers in which the free movement of goods, persons,
services and capital is ensured" (Article 8a).
The economic integration within the internal market goes
further than other forms of co-operation such as free trade areas,
customs unions and common markets which retain their physical
frontiers. It allows the promotion of a more efficient
allocation of the factors of production, larger scale of
production, improvement of economic performance through greater
competition and stimulates investment.
The market without internal frontiers relies on a high level of
mutual confidence and equivalence of regulatory approach. Any
substantial failure to apply the common rules in any part of the
internal market puts the rest of the system at risk and undermines
its integrity.
The basic rules to ensure the achievement of the
conditions for the establishment of the international market are
defined in the EEC Treaty. Another fundamental principle
is established by the European Court of Justice in its rulings
interpreting the Treaty: the principle of mutual
recognition. Any good circulating legally in one member State
shall be free to circulate in any other part of the Community,
except where a Member State can demonstrate that the rules of the
Member State of origin do not afford equivalent protection of the
essential public good. This principle ensures the free movement
of goods within the Community without recourse to legislation at
the Community level. Should common regulations prove necessary,
these should, whenever possible be limited to defining essential
health and safety requirements.
The Commission is required, when preparing its proposals for
harmonisation of national legislation concerning health safety,
environmental protection and consumer protection to take as base a
high level of protection.
In appropriate cases, harmonisation measures must include a
safeguard clause allowing Member States to take provisional
measures for health, safety, environmental and similar reasons.
Invocation would be subject to a Community control procedure. Such
provisions are part of many directives concerning pharmaceuticals
and food.
The legal framework for the establishment of the internal
market, besides the provisions of the Treaty and the rulings of
the European Court of Justice comprises also secondary
legislation.
In accordance with the Treaty most internal market legislation
is in the form of Directives, which are binding on the Member
States. Directives are sometimes relatively detailed, in other
cases they establish only broad aims or essential conditions. In
order to become legally effective, national implementing
legislation is necessary.
At the top of the hierarchy of EC legal instruments (under
Article 189 of the EEC Treaty) are the Regulations which are
directly applicable and binding in their entirety in all Member
States. They need no enabling legislation. There are also some
Decisions, instruments which are binding on those to whom they are
addressed.
Since 1986, the Commission has published annual progress reports
on the implementation of the Internal Market Programme. In its
recent reports the European Commission indicated that Member States
are still expected to make progress in a number of areas in which
the Single market is not yet a reality, in particular: the
abolition of frontier controls on persons (which at present exists
between Schengen countries alone in a non-EC framework); the fiscal
environment for business; company law and protection of
intellectual property; liberalisation of public sector services
(theoretically achieved but still imperfect).
3. The Internal market legislation related to free movement
of goods - key sectors, stages and measures involved
The market concept refers to a trading area devoted wholly to
the sale of products. The single market rests on the assumption
that goods traded on the market of one Member State of the
Community can move freely through the other Member States. Hence to
ensure the free movement of goods within a single market all
tariff barriers (customs duties and charges having an equivalent
effect) and non-tariff barriers (any other measures making imports
more difficult or costly) must be removed.
One of the fundamental aims with a view to completing the
internal market has been the abolition of quantitative restrictions
and measures having equivalent effect which constitute barriers to
trade within the EU.
3.1. EC legislation concerning the production and marketing
of goods
In areas where the principle of mutual recognition (as described
above) could not apply because of the divergence in national
legislation which thus had "an equivalent effect" to tariffs or
quantitative restrictions the approach to technical harmonisation
has been to establish a limited number of essential requirements
and leave more detailed rules to be made up by other
standard-making bodies on a voluntary basis.
In other areas (especially food and medicines, motor vehicles)
the approach of full harmonisation is applied.
These rules taken together with the principle of mutual
recognition, ensure that a producer, manufacturer or importer
anywhere in the Community can introduce a product on the market and
can market it anywhere else in the EU without falling foul of local
rules.
A Member State must not only be able to create the conditions
for the production of goods which correspond to Community standards
(this applies to any country which exports to the Community), but
also be able to guarantee that all goods on its market meet those
standards.
The system thus requires the right legislation in all Member
States but also the full framework of technical and other
structures necessary to ensure the effective implementation of such
legislation. Those structures (testing laboratories, metrology
institutes or customs posts at the external border of the
Community) need to win the confidence of the Community as a whole
if the principle of mutual recognition is to be applied.
For the application of the principle of mutual recognition
the following primary conditions are to be fulfilled:
- the existence of product safety certification bodies operating
in accordance with the same rules as similar bodies in existence in
the EU;
- the existence of laboratories carrying out tests on products
requiring it, e.g. certain food products containing additives or
vitamins). These would be either private or public laboratories
whose tests would be recognised in other Member States of the
EU;
- the existence of product monitoring machinery (e.g.
authorisation procedure for products containing certain substances
such as vitamins or additives: authorisation procedure for parallel
imports of medicinal products).
The prerequisites to ensure free movement of goods in the
pre-accession stage with a view to future joining the internal
market are not only the abolition of tariffs and quantitative
restrictions at the border, but also to ensure that measures with
equivalent to tariffs and quantitative restriction effect are
eliminated (the technical barriers to trade).
The instruments to ensure free circulation of goods within the
territory of the Union are:
- the principle of mutual recognition of legally marketed
goods;
- technical harmonisation of legislation;
- the mechanism to prevent erection of new barriers to
trade;
To achieve the principle of mutual recognition the following
preconditions are to be taken into account:
- recognition of certification bodies;
- recognition by Member States of tests carried out in Bulgaria
and vice versa;
- recognition by EU Member States of products legally
manufactured and/ or marketed in Bulgaria and vice versa.
Technical harmonisation is intended to remove regulatory
barriers to trade by bringing about convergence in national
technical legislation, intended to ensure the achievement of public
policy goals such as public health, safety and environmental
protection.
In elaborating its technical harmonisation legislation the Union
has adopted two different philosophies:
- the so-called New Approach; and
- the Sectoral Approach.
The New Approach Directives are limited to fixing essential
requirements on general issues such as safety, health and
environment. Voluntary standards, drafted by private sector
European standardisation bodies, offer suitable but not compulsory,
technical solutions to meet the essential requirements. Assessment
of conformity with the essential requirements is governed by the
provisions of Council Resolution of 21 December 1989. This provides
specific conformity assessment procedures and the institution of
independent "notified bodies", mainly from the private sector,
authorised to carry out the conformity assessment procedures.
Under the New Approach are regulated families of products such
as pressure vessels, electromagnetic compatibility, machinery,
personal protection equipment, gas appliances, medical devices,
non-automatic weighing instruments, appliances burning gaseous
fuels, construction products and equipment for use in potentially
explosive atmosphere.
The Sectoral Approach is applied in respect of foodstuffs,
pharmaceuticals, motor vehicles and chemical products, i.e. sectors
where public health and safety are directly concerned.
3.2. Current status of legislative and institutional
framework in Bulgaria; stages and measures to be implemented to
achieve alignment with the EU legislative and regulatory
system
Under Bulgarian legislation standards are mandatory. The
Bulgarian standardising body is the Committee on Standardisation
and Metrology.
The Bulgarian standards and technical regulations are based on
internationally agreed rules, following an intensive process of
harmonisation of the existing standards. In accordance with a
Regulation issued by the Committee on Standardisation and Metrology
"where relevant international standards exist they may be adopted
as national standards".
The legislative and institutional framework for the Conformity
Assessment Procedures is being created (no such practice existed in
the past). A network of laboratories is in the process of being
established.
The transposition of the "mandatory" status of the standards
under Bulgarian legislation into the "voluntary’ status of the
standards will be a complex and costly process.
To achieve legislative alignment involving also technical
harmonisation requires adaptation of the former rigid system to a
new system whose objective is to suppress barriers to trade and
allow free movement of products.
Therefore much efforts will be needed to bring the system of
standardisation into line with that of the Union.
In the first place, a clear distinction is needed that
standardisation is a process based on consensus of interested
parties rather than being centrally dictated and is for voluntary
application of economic operators rather than for mandatory
application enforced by the public authorities.
Following the changes of attitude towards the standardisation
process it will be necessary to ensure that the standards bodies
have at least "arm’s length" autonomy or preferably independence
from Government.
Furthermore an open and firm commitment is needed to the
principle that standards are voluntary. The approach of the
national authorities towards standardisation has to be based on the
principle that specifications are prepared by consensus but are
intended for voluntary application.
The national bodies charged by the authorities with the task of
preparing specifications should be capable in practice of carrying
out the national work necessary to implement those European and
international standards that are used in the context of European
policy. Such bodies require the capacity to reach consensus to
formulate national viewpoints, to carry out public enquiry, to
transpose European standards as national standards, to ensure that
no new national standards are introduced at the preparation phase
of the European standard and to withdraw conflicting national
standards. Such standards bodies must be capable of converting the
entire scope of the European standards bodies, CEN (European
Committee for Standardisation), CENELEC (European Committee for
electro-technical Standardisation), ETSI (European
Telecommunications Standardisation Institute).
The second stage will involve the complete adoption of the
corpus of European standards as voluntary national standards.
This will imply that the basic measure have been taken and that the
standards bodies have the full capacity to undertake the necessary
actions.
As far as conformity assessment is concerned the general
precondition for the alignment of conformity assessment is respect
for the related principles established in the WTO TBT Code as
follows:
- transparency in the regulatory system;
- regulations should be restricted to the protection of public
policy interests (safety and protection of health, the environment
and consumers);
- development of conformity assessment bodies that are
competent, in terms of experience, human resources, facilities and
organisation, and that are independent of the regulatory
authorities.
The problems to be resolved in adapting the conformity
assessment system and regulations include:
- the need to abandon the practice of involvement authorities in
the control of product quality characteristics that are related to
free trade;
- excessively centralised existing conformity assessment
activities;
- insufficiency and obsolescence of means of testing and
metrology;
- lack of involvement with international conformity assessment
activities;
- the need to develop a culture in which the conformity
assessment bodies see themselves as serving industry and helping it
to solve its problems.
Funding under the two PHARE regional programmes PRAQ 91 and 92
may be addressed to resolving these problems.
These measures are to be complimented by setting up a system of
market surveillance in line with the EU system.
The objective to control the market comprises the following
obligations for Member States of the EU:
- to adopt appropriate legislation providing for legal sanctions
against fraud and non-conformity requirements;
- to establish specialised laboratories (public or private) that
are able to assess the conformity of products with legislation;
to train enforcement officers in order to control products
already on the market;
- to set up enforcement programmes that indicate the products to
be controlled over a certain period, the frequency and nature of
controls, etc.
On the whole taking into account the current status of
legislation and practice in Bulgaria in the area of technical
barriers to trade as compared to the EU internal market
requirements a co-ordinated approach towards alignment and
implementation of Community legislative and institutional framework
is needed.
This will facilitate the free movement of goods between Bulgaria
and the European Union by eliminating obstacles to trade and
prepare the integration of Bulgaria into the internal market of the
Union.
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