I. Executive summary I. Rezumat
1. 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.
2. 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.
3. 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
4. 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").
5. 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.
6. 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"3;
6.4. European Court of Justice5 (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
7. The notification procedure set out by the TRIS Directive has been adopted in order to enable one to anticipate and prevent the creation of barriers7 to trade within the internal market.
8. 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 regulations 9 .
9. At the same time, the TRIS Directive provides that in the interest of legal certainty11, 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.
10. 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.
11. In accordance with Article 5 of the TRIS Directive: "[...] Member States shall immediately communicate to the Commission any draft technical regulation [...]".
1 The 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.
2 Proiectul de Lege 5G a fost adoptat de Camera Deputaților la data de 19 mai 2021 în forma prezentată de Guvern. A se vedea http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=19269.
5 Court of Justice of the European Union.
6 Curtea de Justiție a Uniunii Europene.
7 See Recital (4) and (13) of the TRIS Directive and the documented provided at point 3.3. above.
8 A se vedea considerentele (4) și (13) din preambulul Directivei TRIS.
9 See Recital (7) of the TRIS Directive.
10 A se vedea Recitalul (7) din Directiva TRIS.
11 See Recital (8) of the TRIS Directive.
12 A se vedea Recitalul (8) din Directiva TRIS.
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