“Reinforcing the cooperation within the standardisation community” How to ensure the voluntary nature of standards SBS Annual Conference Luc Hendrickx Brussels, 19th October 2016 Residence Palace

UEAPME Employers’ organisation representing the interests at European level of crafts, trades and Small and Medium- Sized Enterprises 67 member organisations (national cross-sectoral associations and European trade federations) Represents 12 million enterprises in EU which employ over 55 million people in 34 countries Recognised European Social Partner Co-funder of SBS

European Framework (1) Regulation 1025/2012 :“Standards are voluntary” “compliance with standards is not compulsory” (art.2) Standardisation package – European Standards for the 21st Century (COM(2016)358) : “European Standards are voluntary”

European Framework (2) But: Communication COM (2011) 311 “A Strategic vision for European standards: Moving forward to enhance and accelerate the sustainable growth of the European economy in 2020” states: “European standards and standardisation are very effective policy tools for the EU. …, they are used as policy instruments to ensure,…, a proper functioning of the Single market, a high level of consumer and environmental protection, and more innovation and social inclusion. “

“Voluntary”? (1) Definition Merriam-Webster: “done or given because you want to and not because you are forced to : done or given by choice” No legal obligation ->no sanctions – no penalty If it is voluntary, one has the choice to use standards or not -> not generally applied -> against the objective of the policy makers De facto compulsory: Reference in legislation (CPR) Public procurement (e.g. ISO 27000 cybersecurity) Market pressure (sanctioned!!!) Sub-contracting (forced…)

Interludium Leviticus 19:35 "'Do not use dishonest standards when measuring length, weight or quantity.” Proverbs 20:23 “The LORD detests differing weights, and dishonest scales do not please him.” Deuteronomy 25:13 "You shall not have in your bag differing weights, a large and a small.” Proverbs 11:1 “A false balance is an abomination to the LORD, But a just weight is His delight.” Ezekiel 45:10 "You shall have just balances, a just ephah and a just bath.”

“Voluntary”? (2) Standards can have (even limited) binding legal effect High degree of persuasiveness and influence Standards are used to regulate the internal market – avoiding the legislative process Standards are a policy instrument to ensure the proper functioning of the internal market to ensure a high level of consumer and environmental protection (COM(2011)311)

Legal status (1) Literature : widespread view of standards as quasi regulation “Nemo censetur ignorare legem” Properly promulgated, published and distributed by being printed in a government gazette, made available over the internet, or printed in volumes for sales at affordable prices.

Legal status (2) Knooble case c NNI and Dutch state. Dutch supreme court: NEN standards are not generally binding provisions issued by the government and therefor were not free from copyright. Germany DIN Bundesverfassungsgericht : free acces to technical standards justifies exclusion of copyrights. Conclusion: legal status standards is unclear. When will there be a case for the European Court of Justice?

Consequences A parallel between standards and regulation cannot be denied also parallel between good regulatory practice and good standard making: Thus: need for Regulatory impact assessments, more openness and transparency, balancing needs of stakeholders, better involvement of SMEs To guarantee voluntary nature: do not standardise…

Pro Memory… IFRS (International Financial Reporting Standards) – EFRAG Disclosure of non-financial information – corporate social responsibility Cross References Deuteronomy 25:13 "You shall not have in your bag differing weights, a large and a small. 1 Chronicles 23:29 and with the showbread, and the fine flour for a grain offering, and unleavened wafers, or what is baked in the pan or what is well-mixed, and all measures of volume and size. Proverbs 11:1 A false balance is an abomination to the LORD, But a just weight is His delight. Ezekiel 45:10 "You shall have just balances, a just ephah and a just bath.

Questions. Remarks. Thank you for your attention. www. ueapme. com l Questions? Remarks? Thank you for your attention! www.ueapme.com l.hendrickx@ueapme.com