Legal memo regarding the scope of article 5 of the TRIS Directive by reference to Romania’s 5G legislation
I. Executive summary
- From the TRIS Directive, the judgments of the European Court of Justice and the guideline of the European Commission it follows that the 5G Draft Law is a technical regulation liable to be notified to the European Commission in accordance with Article 5 of the TRIS Directive.
- This is since the 5G Draft Law may lead to a complete ban on equipment of certain manufacturers. Such bans are deemed as technical regulations, within the meaning Article 1 letter f) of the TRIS Directive, even if they do not contain any technical specifications.
- The failure to notify the 5G Draft Law may thus render same unenforceable in relation to private parties and may open the door to infringement actions against Romania, based on Article 258 of the Treaty on the Functioning of the European Union.
II. Purpose of the legal memo
- This legal memo has been drafted by MPR Partners in connection with the notification procedure provided by Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 on the procedure for the provision of information in the field of technical regulations and rules on information society services (“TRIS Directive”).
- It aims to demonstrate that, based on the TRIS Directive and related practice, there is an obligation for Romania to notify the Draft law on the adoption of certain measures concerning informatic and communications infrastructures of national interest and the conditions for deployment of 5G networks (the “5G Draft Law”)1 in accordance with Article 5 of the TRIS Directive.
- For the purposes of this memo, we have analysed amongst others the following publicly available documents and information:
6.1. Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 on the procedure for the provision of information in the field of technical regulations and rules on information society services;
6.2. Government Decision no. 1016/2004 on measures for the organisation and implementation of the exchange of information in the field of technical standards and regulations and of rules on information society services between Romania and the Member States of the European Union and the European Commission, subsequently amended and supplemented (”Government Decision no. 1016/2004”);
6.3. European Commission, “A guide to the procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services”2;
6.4. European Court of Justice3 (the ”ECJ”), Case C-194/94, CIA Security International SA v. Signalson SA and Securitel SPRL;
6.5. ECJ, Case C-267/03, Criminal proceedings against Lars Erik Staffan Lindberg;
6.6. ECJ, Case C-109/08, Commission of the European Communities v Hellenic Republic;
6.7. ECJ, Case C-275/19, Sportingbet plc and Internet Opportunity Entertainment Ltd v Santa Casa da Misericórdia de Lisboa.
III. The TRIS Directive notification procedure
- The notification procedure set out by the TRIS Directive has been adopted in order to enable one to anticipate and prevent the creation of barriers4 to trade within the internal market.
- Moreover, for the purpose of ensuring the competitivity within the internal market, both the other Member States and the undertakings operating in other Member States should be enabled to provide their views with regards to the impact of national technical regulations5.
- At the same time, the TRIS Directive provides that in the interest of legal certainty6, a Member State should publicly announce when a national technical regulation has been adopted in accordance with the formalities laid down in the TRIS Directive.
- To this end, the TRIS Directive provides the obligation for the Member States to immediately communicate to the European Commission any draft technical regulation, before same is adopted in national law.
- In accordance with Article 5 of the TRIS Directive: “[…] Member States shall immediately communicate to the Commission any draft technical regulation […]”.
- Following the notice, there is a standstill period of three months during which a Member State may not adopt the law. During said period, the legislative procedure can however follow its normal course.
- The standstill period may be shortened if the Member State invokes an urgency procedure, which can be accepted by the Commission if certain conditions are met7.
- According to Government Decision no. 1016/2004, which transposes into the national legislation the provisions of TRIS Directive, the Ministry of Economy and Trade has a department for exchanges of information on technical regulations that is in charge with the obligation to notify draft laws to the European Commission (“EC”) pursuant to the TRIS Directive.
- According to the provisions of the Methodology on the national information circuit between the Department for Information Exchange for Technical Regulations, central public administration authorities and other regulatory authorities, approved by the Order of the Ministry of Communications and Information Technology no. 2/2006, the draft technical regulations must be communicated to the European Union once they are “at an advanced stage of elaboration, which requires the agreement of all the institutions involved, but which at the same time allows substantial changes to be made”.
- In accordance with Government Decision no. 315/2021 on the organisation and functioning of the Ministry of Economy, Entrepreneurship and Tourism (the “MEET”), the Department of European Affairs and International Relations within the MEET is appointed as point of contact with regards to the TRIS Directive. Thus, the Department of European Affairs and International Relations is to notify the EC any technical regulation that meets the criteria set out in the TRIS Directive.
IV. The concept of technical regulation
- According to Article 1 paragraph (1) letter f) of the TRIS Directive, a “<technical regulation> means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider”8.
- It follows from the definition quoted above that, within the meaning of the TRIS Directive, the concept of “technical regulation” is rather broad. Such concept includes four types of regulations9, namely:
18.1. technical specifications, meaning specifications “contained in a document which lays down the characteristics of a product such as dimension, labelling, packaging, level of quality, conformity assessment procedures etc. This term also covers production methods and processes”;
18.2. other requirements “imposed on a product for the purpose of protecting for instance consumers or the environment and which affects its life cycle once placed on the market, such as conditions of use, reuse or recycling. These conditions have however to influence significantly the composition or nature of the product or its marketing”;
18.3. rules on services meaning a “requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b)10, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point” (emphasis added);
18.4. regulations ”prohibiting the manufacturing, importation, marketing or use of a product or prohibiting the provision or use of a service, or one’s establishment as a service provider” (emphasis added).
- As it clearly follows from the above, in order for a draft law to be considered a ”technical regulation” that is to be notified in accordance with the TRIS Directive, such draft does not necessarily need to contain technical specifications.
- It is sufficient for the draft law to, amongst others, prohibit the manufacture, importation, marketing or use of a product or to prohibit the provision or use of a service, or establishment as a service provider.
- With regard to regulations prohibiting the manufacture, importation, marketing or use of a product, the ECJ has ruled that the measures within a draft law11 “must have a scope which goes well beyond a limitation to certain possible uses of the product or the service in question and must not be confined to a mere restriction of their use. That category of technical regulation is particularly intended to cover national measures which leave no room for any use which can reasonably be made of the product concerned other than a purely marginal one”.
- The case referred to above concerned certain general prohibitions concerning slot machines, namely ”a prohibition on the organization of games of chance using certain gaming machines”. Such prohibition was deemed “liable to constitute a technical regulation within the meaning of Article 1(9) of Directive 83/189”.
- In a similar case12, the ECJ deemed that “Measures prohibiting the installation of all electrical, electromechanical and electronic games, including all computer games, on all public and private premises apart from casinos, and the use of games on computers in undertakings providing internet services, and make the operation of such undertakings subject to the issue of a special authorisation, must be considered to be technical regulations within the meaning of Article 1(11) of Directive 98/34”.
- While the above-mentioned judgements concern the previous text of the TRIS Directive, they remain relevant for the new version of the TRIS Directive, since the text suffered no amendments in this respect.
- The European Commission has reiterated the ECJ’s view in its guide concerning the notification procedure under the TRIS Directive13, as follows:
”To fall within this fourth category of technical regulation concerning a prohibition inter alia on use, the measures must have a scope which goes well beyond a limitation to certain possible uses of the product or the service in question and must not be confined to a mere restriction of their use. That category of technical regulation is particularly intended to cover national measures which leave no room for any use which can reasonably be made of the product concerned other than a purely marginal one.
Such prohibitions constitute, as it were, the ultimate form of technical regulation. Unless they can be justified under Article 3014 or Article 4615 of the Treaty or proportionate in relation to essential requirements within the terms of the case law of the Court of Justice, they constitute barriers par excellence to the free movement of goods and services and to the freedom of establishment within the Community”.
- It is important to note that, even if the imposition of measures that might prohibit the manufacture, importation, marketing or use of a product might be justified under Article 36 TFEU or Article 53 TFEU (because, for example, the same safeguard the public security of a Member State), this does not mean that the measures themselves would not constitute technical regulations liable to be notified under the TRIS Directive. The purpose of the
notification will be in this case precisely that of assessing if the measures in question constitute barriers to the free movement of goods and services or not, in light of the treaty provisions mentioned above.
- It follows from the above that, where a draft law contains general provisions that prohibit the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider, that draft law amounts to a technical regulation within the meaning of Article 1 paragraph (1) letter f) of the TRIS Directive. This will be the case even though such provisions do not contain technical criteria or specifications. Such a draft law would have to be notified to the European Commission for the purpose referred to above.
V. 5G Draft Law constitutes a technical regulation within the meaning of the TRIS Directive
- The 5G Draft Law is purported to regulate the authorisation of producers of technologies, equipment and software for 5G networks.
- The application of the authorization criteria laid down in the 5G Draft Law may result in the exclusion from the entirety of the 5G network of equipment supplied by certain manufacturers.
- The 5G Draft Law may thus result in the imposition of a ban on all equipment used in 5G networks, as well as on the equipment used in 3G and 4G networks (if used in the provision of 5G electronic communication services), where such equipment is provided by manufacturers that do not obtain the authorisation provided by the 5G Draft Law.
- Pursuant to the 5G Draft Law, the sale of all the equipment produced by unauthorized manufacturers will be prohibited in Romania. The ban will leave no room for any use of the concerned equipment, not even a marginal one.
- Under these circumstances, it is hard to see how one could reasonably argue that the 5G Draft Law does not fall under the scope of Article 1 paragraph (1) letter f) of the TRIS Directive referring to the prohibition of the manufacture, importation, marketing or use of a product or of the provision or use of a service, or establishment as a service provider, as construed by the ECJ and the European Commission. Based on the general wording of the TRIS Directive, the ECJ judgments referred to above and the guidance provided by the European Commission, the obligation to notify the 5G Draft Law seems obvious.
- It is noteworthy in this respect that other Member States (such as Finland, Germany, Belgium, Estonia, Spain, Hungary, France, Poland and Austria, mentioned in the Annex hereto), have deemed it necessary to notify to the European Commission in accordance with the TRIS Directive their respective draft enactments regulating authorisation procedures for the 5G technology.
- Notably, as far as France16 and Finland17 are concerned, the draft regulations notified under the TRIS Directive seem to provide for a similar authorization mechanism as the one intended to be regulated by the 5G Draft Law. The Finnish document in particular does not seem to contain any technical specifications. The French document providing for the authorization procedures themselves does not contain such specifications either, although it has been notified separately from other related regulations which do contain technical specifications.
VI. Consequences of a failure to notify a draft technical regulation under the TRIS Directive
- According to the ECJ18, a national technical regulation which has not been notified under the TRIS Directive despite an obligation to do so, ought to be declared by national courts as unenforceable against private parties. This is also the case where the Member State fails to observe the standstill period referred to at section 12 above.
- Moreover, in case of a failure to notify a draft regulation, a potential infringement action may be brought against the Member State failing to notify, based on Article 258 of the Treaty on the Functioning of the European Union.
- It is rather obvious that the 5G Draft Law represents a technical regulation that must be notified to the European Commission in accordance with the TRIS Directive.
- The failure to notify such a measure opens the path for the 5G Draft Law to be declared by the national courts as unenforceable against private parties and to potential infringement actions against Romania.
1The 5G Draft Law was adopted by the Chamber of Deputies on May 19, 2021 in the form submitted by the Government. See http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=19269.
3Court of Justice of the European Union.
4See Recital (4) and (13) of the TRIS Directive and the documented provided at point 3.3. above.
5See Recital (7) of the TRIS Directive.
6See Recital (8) of the TRIS Directive.
7The urgency procedure may relevantly be invoked amongst others when (i) the technical regulations need to be prepared within a very short time for their adoption and enforcement as a matter of urgency, and (cumulatively) (ii) no consultation would be possible because of urgent circumstances arising from serious and unforeseeable circumstances relating to the protection of public health or safety and rules relating to services and public order, in particular the protection of minors.
8Government Decision no. 1016/2004 contains a similar definition.
10A service means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
11Case C-267/03, ‘Lars Erik Staffan Lindberg’. See also Case C-144/16 Município de Palmela EU:C:2017:76. Case C-727/17 ECO-WIND Construction, Case C-303/04 Lidl Italia.
12Case C-109/08, the European Commission versus Greece.
13The European Commission, “A guide to the procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services”, page 31-32.
14Currently, Article 36 of the TFEU ”The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security(…). Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”.
15Currently Article 52 of the TFEU”
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the above mentioned provisions”.
16According to the draft law, the hardware and software that enable the connection of the end-user terminals to the mobile radio network must be authorized by the Prime Minister; the authorization is granted taking into account level of security of the equipment, the deployment and operation planned by the operator and whether the operator or its service providers, including subcontractors, are under the control of or subject to interference from a country that is not a member of the European Union; the draft law contains no technical specifications. See: https://ec.europa.eu/growth/toolsdatabases/tris/en/search/?trisaction=search.detail&year=2019&num=376.
17The notified draft contains prohibitions to use communications network equipment in the critical parts of the network where there are compelling reasons to suspect that the use of the equipment would endanger national security or national defense. The same does not contain any technical specifications or other types of technical regulations. More information is available here: https://ec.europa.eu/growth/toolsdatabases/tris/en/search/?trisaction=search.detail&year=2020&num=574
18Case C-194/94 “CIA Security” and Case C-275/19, Sportingbet and Internet Opportunity Entertainment.