Consequences of the James Elliott judgement
Consequences of the James Elliott judgement for the achievements of the New Approach
Triggered by the judgement of the ECJ in the James Elliott case, the European Commission is in the process of setting up additional assessment processes by which harmonised standards, once elaborated, can be reviewed in retrospect. This development is causing concern, as it may lead to considerable delays in the elaboration and publication of harmonised standards, which contradicts the aims of the New Approach, and thus to trade barriers on the European internal market.
In our newsletter of July 2017, which featured a report on the coming into force of the FuAG, we also drew attention to the precariousness of the situation of manufacturers of radio equipment, caused by the fact that the list of harmonised standards for the Radio Equipment Directive (RED) had not yet been published in full. Representatives of business and politics feared that there might be a virtual sales stoppage on radio equipment and that the 'WLAN market' might collapse, since it would no longer be possible to manufacture the products in a way that ensured legal compliance and conformed to the directives without harmonised standards. One thing became very clear in this situation: the functioning of the European internal market depends to a great extent on the timely elaboration and publication of harmonised standards.
Set in motion by the James Elliott judgement at the European Court of Justice (ECJ) on 27 October 2016 (File no. C-613/14, reuschlaw news) and its interpretation by the European Commission, a change is beginning to look likely which could in fact have the opposite effect: the European Commission is currently setting up formal, multi-stage, hierarchichal processes for the follow-up inspection of elaborated harmonised standards. The aim is to make sure that they agree with the basic safety requirements of the respective directives before they are published.
For this reason, the standards submitted by the European standardisation organisations are in future to be reviewed and assessed with regard to their congruence with the original standardisation mandate. To ensure the necessary expertise in the assessment of the standards, the Commission is setting up so-called HAS consultants, whose job is to assess the standardisation results retrospectively. However, these consultants are not supposed to be involved in elaboration and approval within the development process of the standards, and the EU Commission does not wish to be bound by their verdict either.
Moreover, the Commission is making the publication of source references in the Official Journal dependent on a review and assessment of its own, at the end of which there is to be a formal Commission decision. That will then to be published as an implementing decision in the L series (legislative provisions) of the Official Journal of the EU, as a result of which the harmonised standards would be awarded formal legal quality and deemed to have a legal effect.
These current developments are causing concern.
It is true that they would cater to the circumstance that harmonised standards – viewed formally – cannot be considered to have a legal effect, since they are not elaborated in the context of European legislation processes and – unlike other European acts of law – not published in the Official Journal of the European Union.
On the other hand, there is reason to fear that the functional standardisation system, which was developed in the context of the New Approach and is based on collaboration between the EU legislators and the European standardisation societies, could be counteracted by the implementation of additional assessment and review processes by HAS consultants and by the European Commission. Contrary to the aims of the New Approach toward technical harmonisation and the dismantling of trade barriers within the European internal market, considerably longer processing and publication times are to be expected.
We shall report on this again as soon as there any further developments at European level.