What
are the practical implications of the Notification Procedure in
terms of LN 373/2003?
In practice, this means that as from 1st April 2001, the publication
of technical standards and/or technical regulations and/or rules
of Information Society Services in Malta is subject to the notification
procedure. Consequently all government entities, including Authorities
and agencies, are to notify to the Malta Standards Authority their
intended national technical standards and/or technical regulations
and/or rules of Information Society Services while these are still
at draft stage. In practice this means that such drafts texts would
ideally be notified at a very late stage of the legislative process
BUT in any case prior to the signature of the relevant Minister
(in case of Legal Notices) and after the readings in Parliament
(in case of Parliamentary Acts). In any case, it is highly advisable
for notification to be effected when the document will probably
not be substantially amended but when there is still the possibility
of its being amended. The reason for this is that the document has
to be notified when it is still draft but if the document is notified
and then subsequently substantially amended, that notification would
have been made afresh since that document would be considered substantially
different to the one originally notified.
Notification is done via email addressed to the Legal
Advisor. The email has to have the following elements:
-
The draft text (in Maltese or English);
-
The Notification Message duly filled in;
-
The Parent Act (should the draft be subsidiary legislation issued
under a parent act);
-
All other necessary documentation
The
Draft Text
The draft text may be either in Maltese or in English. It is highly
advisable that the text be notified only once the party is very
sure that the text will undergo no further substantial amendment.
The draft text has to be in Word format.
The Notification Message
The Notification Message is a form and is the first document which
all the parties to the procedure receive and therefore, it is a
document which is necessary to introduce the draft text. The notifying
party has a duty to ensure that the notification message is duly
filled in and that it presents a fair view of the reasons underlying
the notification.
The Parent Act and other supporting Legislation
The notifying party has to also attach all supporting legislation.
Therefore, if the draft text will be published under some principal
legislation or is supported by some other legislation, all the other
laws have to be attached to the Notification Email for quick and
easy reference by all interested parties.
All
other necessary documentation
Such documentation may be impact assessments, studies, gap analysis,
surveys and so on which justify the need for the legislation or
which help in the understanding of the legislation.
What happens as soon as the Commission receives the notification?
Once the Member State effects the notification, a standstill period
of three months starts running during which the notifying Member
State, that is the Member State effecting the notification, CANNOT
implement the measure. As soon as the Commission receives the draft
text, it retransmits the text to all the other States party to the
procedure. Once they receive the text, the Member States have the
right to react to the measure by means of one of the following manners:
1. Comments;
2. Detailed Opinions.
In both cases, the reactions are sent to the Commission and the
Commission retransmits such reactions to the notifying party and
the notifying party has the following options:
1. In the case of comments, the Member State is obliged
to take into account the comments and finalise the draft and adopt
it without further action once the three-month standstill period
is up;
2. In the case of detailed opinions, however, the Member
State is obliged to reply to the Detailed Opinion and defend its
position as it were. In the case of Detailed Opinions, the original
standstill period of three months is extended by a further three
months during which period the Commission decides on whether the
text should be adopted as proposed or whether it accepts the reaction
of the Detailed Opinion. In such cases, once the Member State replies
to the detailed opinion, by means of a text addressed to the Commission,
the Member State has to wait for the expiry of SIX months form the
date of the original notification. Once the six months are up, the
Member State is bound to adhere to the decision of the Commission
which decision would be also based (depending on the case, of course)
on the contents of the detailed opinion.
From the above, it clearly transpires that Malta may be both a notifying
party and also a party receiving notifications and therefore Malta
has the faculty of reacting to texts. Reactions are fundamental
for the proper functioning of the procedure – and whilst frivolous
or vexatious comments are to be totally avoided, a constructive
approach would definitely yield fruits both to the notifying party
but also to the whole system of notification.
How is the Malta Standards Authority involved?
The Malta Standards Authority is the Notification Focal Point for
Malta. This means that all the notifications that Malta receives
from the Commission and all the notification which Malta sends to
the Commission have to be directed through the Malta Standards Authority.
This means that the MSA receives all notifications and it forwards
such notifications to all the parties who may have an interest.
The MSA also provides all the necessary support to all the parties
in Malta who may have an interest in the notification procedure,
both public and private parties.
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The
involvement of Malta in the Notification Procedure. By virtue of
its Membership in the European Union, Malta is a directly interested
party in the notification procedure. However, Malta’s involvement
in the Notification Procedure dates to before May 1st, 2004.