European Court of Justice Grand Chamber

The Grand Chamber of the European Court of Justice. On 5 March 2024, the ruling on public access to harmonized standards was handed down here, putting the future of European standardization to the test. Standards organizations are now trying to find a compromise solution. 

| European Court of Justice
2024-05-28 VDE dialog

A step backwards in European standardization?

The European Court of Justice ruling concerning the publishing of standards could turn the tried and tested system of standards on its head. Wolfgang Niedziella, member of the DKE management board and President of the European Committee for Electrotechnical Standardization (CENELEC), explains how things got to this point and how the standardization community can prevent the worst from happening. 

Let's start at the beginning: Why do we need standards? 

Standardization has been going on basically forever: Even in the Middle Ages, if you wanted to weigh something at a market, you had to agree on a weight measure beforehand. This has naturally evolved over time, and standards have now become an integral part of our entire product world. Standards are nothing more than certain things that interested parties agree on by consensus – to ensure interoperability, for instance. A popular example of this is the plug connector, which ideally should fit into more than one socket. 

Standards are thought to be very important for small and medium-sized companies in particular. Why? 

Because such companies generally don't have large legal, development or risk management departments. Such agreements are obviously especially convenient for them because they offer a way to make sure a product conforms to standards, the current state of the art and a certain degree of safety – including in terms of liability.  

To what extent are manufacturers obliged to comply with standards?  

Standards are always voluntary unless the law says otherwise – which it does in the medical device sector, for example, because there’s a particular public interest in ensuring that products meet certain requirements before entering the market. In most areas, however, compliance with standards isn’t mandatory. This is also true if a manufacturer wants to sell a product on the European internal market. It has to adhere to the applicable directives when doing so. It can follow standards as well, or prove in other ways that its product corresponds to the state of the art. That’s much more time-consuming and legally uncertain, though, so manufacturers are generally very happy to rely on standards. 

But which ones? There are German, international and harmonized European standards. 

In the field of electrical engineering, we agreed around 30 years ago that we no longer wanted to standardize at just the national or European level. The electrical industry is internationally oriented and operates on the global market. That's why we always start by asking the international standards organization IEC and its member countries whether they are interested in a particular standard. If they are, it is developed worldwide and then generally adopted by the European standards organizations. To put it in figures: 79 percent of all European standards are identical to the corresponding international standard; six percent are based on the global standard and only differ in detail for certain legal reasons, and only 15 percent are purely European standards. 

But who actually develops these standards?  

There’s a process with clear guidelines within organizations such as the DKE or DIN. First of all, someone has to register a need for standardization. We then bring together experts from interested specialist groups in a committee. Manufacturers, associations, consumer and environmental protection agencies, employers' liability insurance associations – in principle, everyone has the right to participate in the development of a standard. To ensure that we remain operational, however, we’ve limited these committees to 21 people. At the DKE, we delegate one full-time professional, who organizes and manages everything, prepares the documents, invites people to the meeting and takes the minutes. This is how the draft for a standard is developed. It's then submitted internationally and, after a coordination process, presented to the specialist community so that it can be commented on and evaluated. In the end, when all the objections (if there are any) have been resolved, a consensus is reached on the common standard. 

CENELEC Wolfgang Niedziella

"Standards organizations and the companies that send their experts to the committees invest a lot of time and money to drive standardization forward." Wolfgang Niedziella, CENELEC President, in an interview with VDE dialog. 

| CENELEC

This all sounds extremely complex. Who pays for the costs involved?

Yes, it is very time-consuming. And the companies and organizations that send their experts to the committees invest a lot of time and money in driving standardization forward. The same applies to us in the full-time standardization business, although we have the option of recouping our expenses through the subsequent sale of standards. 

But that’s precisely what gets criticized all the time. Many tradespeople are annoyed that they have to adhere to standards that aren’t even made available to them free of charge. Can't you understand this criticism to some extent?

We’re aware of this argument and are also discussing it with the relevant associations, of course. However, you have to keep in mind that these standards are ultimately not made to annoy the trades, but to help them and ensure the safety of their customers. But even if you wanted to take the burden off the tradespeople and give them the standards for free, you’d still have to think about who should pay for the costs incurred. To me, appealing to the state and calling for taxpayer money doesn’t seem like the right way to go, because then standards will no longer be created independently by the interested parties themselves. 

However, the Malamud case has now brought fresh impetus to this discussion. Could you briefly describe what it’s about? 

I should expand on this a little. It’s important to note that in the 1970s, the European Commission wrote technical requirements directly into its laws. These so-called directives basically stated how a product should be built, for example. In the 1980s – under Jacques Delors, the Commission President at the time – people realized that this approach was no longer viable: It simply couldn't keep up with the pace of technological progress. The decision was therefore made to only include protection targets in the directives instead of specific technical values. Since then, the technical details have been worked out by experts in European standards. These are then assigned to a directive and listed in the Commission's Official Journal. 

This is what is meant by the New Approach. 

That’s right. It started with electrical engineering in 1985 and gradually established itself over time. In the meantime, the New Approach has been developed further into the New Legislative Framework. This means that if a company wants to place a product on the European market, it has to comply either with all the directives relating to the product or with all the standards listed under the relevant directives. In this case, the so-called presumption of conformity comes into effect. Small and medium-sized companies in particular take advantage of this because they don't want to have to work their way through a maze of laws and regulations. They only need to ensure that they comply with the technical specifications of the standard and can then use the CE marking for their product and place it on the market throughout Europe. This applies equally to European and non-European manufacturers and is the basis for the 30-year success story of the European single market. 

And then came Carl Malamud? 

Strictly speaking, James Elliot came first. He’s an Irish building contractor who filed a lawsuit against a supplier of building materials due to substandard cement. In 2016, the European Court of Justice (ECJ) ruled that the European standards listed in the Official Journal are part of EU law. That decision was what put us on the road to our current predicament. 

In what way? 

Carl Malamud founded an organization in the USA that campaigns for public government documents to be made freely available – with the argument that “poor” people in particular can’t follow laws if they don’t know what they contain. When this organization, or rather its Irish branch, then learned of the James Elliot ruling, it came up with the brilliant idea that standards must now also be free because they are, after all, part of EU law. The organization therefore sued the European Commission to obtain four toy safety standards free of charge in order to set a precedent.  

What was the outcome? 

The ECJ ultimately ruled that these four standards must indeed be made freely accessible because the need of parents to know what the requirements for their children's toys are takes precedence over the economic interests of the organizations that have developed these requirements. 

And what does this mean for electrotechnical standards? 

First of all, I want to emphasize that our electrotechnical standards are texts written by experts for experts. They are therefore aimed at industry experts and market supervisory authorities, which means they aren't directly comparable to the toy standards of the Malamud case. Of course, that case is emotionally charged because it involves children. Still, it’s now having repercussions and it may only be a matter of time before someone sues to have more standards published. To prevent this, the European Commission is now also demanding that all harmonized standards be made freely accessible to the public. We’re talking about over 3,300 standards – around 15 percent of all those produced by our standardization organizations.

This means that if these organizations are now obliged to issue all their standards free of charge, they will also lose 15 percent of their turnover. 

That’s the specter that initially loomed large, at least. However, it’s not just about the economic damage to the standardization organizations, but also about the negative consequences that this could have for the future viability of the European economy as a whole. We’re currently in discussions with the European Commission to prevent precisely that. 

To what extent would this jeopardize the future viability of the European economy?

If no agreement is reached and the standardization organizations can no longer do the work they’ve been doing for 30 years, there's a risk that the entire system will collapse. This means that without the option of reciprocal financing, it’s possible that there will no longer be an organization that develops standards. And even if there is, the danger wouldn’t be averted because the international standards organizations would probably not be thrilled about their standards being given away here in Europe. 

Since – as you just explained – most of the European standards are based on international standards. 

That’s right! An American, for example, would then no longer need to buy international standards in the USA; they could simply obtain them free of charge from the European Commission. Because our colleagues in the non-European organizations certainly don’t want this, there would be a risk that the existing agreements could be terminated and the synchronization between international and European standardization could no longer take place. I probably don't need to explain that it wouldn't make much economic sense to have two parallel standardization processes. Above all, however, it could lead to Europe and the rest of the world drifting apart in terms of standards – which is certainly not what anyone wants.  

That’s the specter you just mentioned. You also said that you’re currently negotiating with the Commission to prevent exactly that. But that shouldn't be so difficult: After all, your negotiating partner should also have an interest in continuing the successful model of European standardization. 

The Commission would also like to reach an agreement, of course, as it published a standardization strategy only two years ago in which it once again sang the praises of this public-private model. If everything were to collapse now, it would be a step back to the 1970s for the Commission, as well. At the same time, it’s also important to clearly acknowledge that there’s not just one Commission. It consists of several Directorates General and there are definitely different opinions and trends. Think of it like the coalition government in Berlin, if you will. 

And there’s also the ECJ ruling, which the Commission can’t ignore. So where is there room for negotiation? 

First, it’s very important to emphasize that the ECJ expressly did not say in its ruling that copyright on standards would be revoked. This means that we as standardization organizations continue to own the copyrights on our standards and can also protect them. Second, the ECJ didn’t say that the standards had to be given away. The public merely has the right to access them freely. 

But what does that mean in concrete terms? Where could an agreement be reached? 

We’ve submitted a proposal to the Commission that would involve us, as standardization organizations, taking on the task of providing standards free of charge. This would then not take place in the Commission's portal, but through us. As a result, we’d have a little more control over everything and could better protect our copyrights. We'd also know who was accessing the documents and could also technically prevent them from simply being copied and published elsewhere. After all, once the material is freely accessible online and disappears into some AI system, it’s lost – and no longer commercially usable for us. 

So this is what the negotiation is all about? 

It’s the main sticking point, yes. The other is that we also want to be compensated for the impending loss of revenue. The CENELEC General Assembly will take place from June 25th to the 28th. There, its members will decide whether to support the results of the negotiations conducted up to that point or to take another path. 

The interview was conducted by Martin Schmitz-Kuhl, freelance author from Frankfurt am Main and editor at VDE dialog.

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