Case study: non-notification of technical regulations under directive 98/34/ec – video recordings act 1984
In late 2009 there was a great deal of negative press coverage when it was discovered that the provisions of the Video Recordings Act 1984 were unenforceable as a result of the UK’s failure to notify the measure under Directive 98/34/EC. It was made clear that, because of the unenforceability of the regulations, legislation that would protect under 18s from unsuitable videos – potentially containing violent or sexually-explicit material – was never enacted
Although non-notification of technical regulations falling within the scope of Directive 98/34/EC is not a major issue in the UK, the consequences of any failure to notify can be serious and steps have been taken to ensure that this situation does not arise again.
Once the non-enforceability of the Video Recordings Act was discovered, the relevant legislation was notified to the European Commission in September 2009 (notification 2009/0495/UK - The Video Recordings Act 1984 (as adopted by the Video Recordings Bill) and The Video Recordings (Labelling) Regulations to be made under section 8 of the adopted 1984 Act., please see link
http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?iYear=2009&iNumber=0495&).
This was followed in December 2009 by the related notification 2009/0664/UK - The Digital Economy Bill (extract of five clauses and a Schedule,
http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?iYear=2009&iNumber=0664&).
In October 2009 a joint Cabinet Office/BIS letter was sent to Permanent Secretaries reminding Government Departments of the need to comply with the provisions of Directive 98/34/EC. BIS followed this up in early 2010 with a letter to Directive 98/34/EC policy leads, drawing attention to a request in the Cabinet Office/BIS communication of October 2009 for all Government Departments to carry out an assessment of all technical regulations they had made since 1983 for compatibility with the directive, in order to ensure that all relevant legislation had been correctly notified.
Following the Cabinet Office and BIS letters of late 2009 and early 2010, Government Departments carried out their assessments as requested. Although we received confirmations that regulations compatible with Directive 98/34/EC had been notified, further instances of non-notification came to light. The following are examples of notifications submitted as a result of assessments revealing failure to comply with the directive as required:
2010/0318/UK - PAS66:2009 Official identification eartags for sheep and goats – Specification
(http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?iYear=2010&iNumber=0318&sCountry=UK&) and
2010/0319/UK - 2010/0319/UK - PAS44:2009 Official identification for cattle – Specification
(http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?iYear=2010&iNumber=0319&sCountry=UK&).
The lesson learned from the above is that it is very important for all Government Departments to constantly check any proposed new legislation for notifiability under Directive 98/34/EC, and notify any compatible regulations in draft before making them.
