Common Specifications

POSITION | ECONOMIC POLICY | STANDARDISATION

Common Specifications A horizontal approach to the development and use of common specifications must be in line with the New Legislative Framework.

June 10, 2022 Interim solution needs criteria and framework conditions European-wide Harmonised Standards are a proven instrument to relieve the legislator and promote a practical, lean and thus innovation-friendly regulation. The underlying regulatory model New Legislative Framework (NLF) pursues the regulatory separation of the design of legal requirements, formulated in harmonisation legislation, by the European legislator and the technical design, in the form of harmonised European Standards, by experts from interested groups.

In new legal acts as well as in the context of the revision of regulations and directives, the possibility has been introduced for some time – not very coherently – that the European Commission can also resort to common specifications1 instead of Harmonised Standards. German industry has taken note the European Commission’s justification that common specifications are seen as the ultimate means of compensating for the unavailability of important Harmonised Standards in harmonisation legislation under the NLF with a view to ensure the functioning of the European Single Market. A horizontal approach to the development and use of common specifications, as announced in the European Standardisation Strategy, is to be welcomed in principle, but it is imperative that a narrow framework for action is provided which effectively rules out an undermining of the NLF and the formation of a parallel system. The transparency and inclusiveness of the public-private partnership dynamic inherent in the European Standardisation System (ESS) is the supporting pillar of the economic success of the European Union and must be continued in the future.

In the following, we present our proposal for discussion to fill out the horizontal approach called for in the European Standardisation Strategy as well as clear criteria and procedures for the use of common specifications. For a uniform understanding of this, legally secure framework conditions must be formulated.

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To maintain coherence, the term common specification is used exclusively in the following. This includes the formulations “technical specification” and “common specification” chosen by the European Commission in equal measure.

Simon Weimer, M.Sc. | Environment, Technology and Sustainability | T: +49 30 2028-1589 | s.weimer@bdi.eu | www.bdi.eu

Common Specifications

Proposal must be in line with the New Legislative Framework Current Commission proposals do not consider the procedures of Decision 768/2008/EC and Regulation (EU) No 1025/2012. Neither the Decision nor the Regulation provide the possibility of adopting common specifications by means of implementing acts. The justification that the Commission needs a fallback solution if Harmonised Standards do not exist or are not sufficient in the Commission’s view is understandable. However, as stated and announced by the Commission in the Standardisation Strategy, the procedure must be subject to clear criteria.

According to Article 2(1) of Regulation (EU) No 1025/2012, ““standard” means a technical specification, adopted by a recognised standardisation body.” Technical specification means, according to Article 2(4), “a document that prescribes technical requirements to be fulfilled by a product, process, service or system […].” The Commission’s proposal described above refers exclusively to the unavailability of Harmonised Standards. Consequently, the common specifications adopted by the Commission by way of implementing acts must be subject to the same criteria as Harmonised Standards, in accordance with Article 10(1). Common specifications therefore “shall be market-driven, take into account the public interest as well as the policy objectives clearly stated in the Commission’s request and based on consensus.”

General framework for the use of common specifications German industry expressly supports the Commission’s intention to draw up a binding and clear catalogue of criteria for the use or commissioning of common specifications. In the following, we have worked our concrete proposals for this, which we would like to present and explain: Recourse to Common Specifications is permissible if: ▪

A standardisation request has been issued by the European Commission, no statement has been issued by the European Standardisation Organisations (ESOs) on the setting of a deadline, the deadline agreed between the European Commission and the ESOs has elapsed (cf.

Article 10(1) Regulation (EU) No 1025/2012) and the ESOs have not requested a justified extension of the deadline.

Recourse to Common Specifications is not permitted if: ▪

The European Commission has not issued a standardisation request.

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The European Commission has issued a standardisation request, this does not allow timely development of Harmonised Standards and it has been stated in a statement of the ESOs to the European Commission.

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The European Commission has issued a standardisation request and delays result from intensive technical examinations or the issuing of substantive specifications by the European Commission and delays in reaching consensus occur as a result.

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The European Commission has issued a standardisation request, the ESOs accept it and the European Commission withdraws it.

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The European Commission has issued a standardisation request and withdraws it before the ESOs accept or reject it.

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Common Specifications

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If it is a revision of a Harmonised Standard already listed in the Official Journal of the European Union and the presumption of conformity can be justifies with a previous version for the transitional period until the revision is completed.

Time-limited use of common specifications Temporal framework conditions shall be defined for the entry into force as well as the withdrawal of common specifications.

Common specifications shall become valid upon: ▪

Publication by the European Commission of the implementing act linked to the common specifications, provided the no listing of the assigned Harmonised Standards has taken place in the Official Journal of the European Union in the meantime.

Common specifications lose their validity: ▪

With listing of equivalent Harmonised Standards in the Official Journal of the European Union.

Common specifications continue to confer a presumption of conformity with the essential requirements for a transitional period of 12 months.

Financing of standardisation projects must be ensured According to Chapter V „Financing of European Standardisation” of Regulation (EU) No 1025/2012 Article 15(1), the European Union may grant financing to ESOs for various standardisation activities.

Financial resources which have been or will be made available in accordance with Article 15 shall be used exclusively for these purposes. It must be excluded that: 1. The European Commission withholding amounts from budgetary resources earmarked for funding under Article 15 of Regulation (EU) No 1025/2012 in the very unlikely event of having to develop common specifications.

The resulting funding gap would lead to a delay in the development of Harmonised Standards and run counter to the objectives announced in the Standardisation Strategy.

2. The European Commission, in the very unlikely event of having to develop common specifications, fells obliged to terminate funding already granted or made to ESOs for the development of Harmonised Standards, to secure funding for the development of common specifications.

This process could be used to delay the work of the ESOs in a politically motivated way to justify the use of common specifications.

Development of common specifications under the leadership of the European Commission The European Commission takes the lead for the development of common specifications and ensures that the necessary expertise is available for the development by integrating the relevant experts. The possibility of contracting out the development of common specifications to third parties must be excluded by legislation and the involvement of relevant stakeholder must be ensured.

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Common Specifications

Transparent and democratic processes within the comitology procedure Before the standardisation requests are forwarded to the ESOs, they undergo a voting process in the Committee on Standards (CoS) established under Article 22 of Regulation (EU) No 1025/2012 as part of the comitology procedure. Only after a positive vote in the CoS, the European Commission does adopt the application as an implementing decision. The procedure described above ensures, among other things, that the Harmonised Standards are subject to market relevance and practicability (cf.

Article 10 Regulation (EU) No. 1025/2012) and that the probability of rejection of the standardisation request by ESOs is reduced to an absolute minimum.

If common specifications are not subject to the same principles and requirements as Harmonised Standards, they will ultimately not be accepted and fail to achieve the European Commission’s intentions of transparency and inclusion.

Before an implementing act is adopted, a review procedure must be carried out in the CoS as part of the comitology procedure. The CoS examines the admissibility of recourse to common specifications and acts in accordance with Article 22 of Regulation (EU) No 1025/2012. “Before bringing a matter regarding requests of European standards or European standardisation deliverables, or objections to harmonised standards, […] the Commission should consult experts of the Member States, for instance through the involvement of committees set up by the corresponding Union legislation […]” (cf. Recital 28 of the Regulation (EU) No 2025/2012). An equivalent procedure is to be applied for common specifications. Only after a positive vote in the CoS the European Commission is entitled to adopt the implementing act.

Consistent use of terminology Harmonisation legislation currently under revision and already adopted legal acts do not use the terms technical specifications and/or common specifications very coherently. According to Article 2 of Regulation (EU) No 1025/2012, a technical specification “means a document that prescribes technical requirements to be fulfilled by a product, process, service or system […]”. Standards, according to Article 2, also fall under the definition of technical specifications. Against this background, a technical specification is to be regarded as a generic term and not to be equated with common specifications or standards. There is no definition of common specifications.

We advocate a clear differentiation of the terms. We recommend using the term common specification when it comes to compensating for the non-availability of important Harmonised Standards in the very low probability case of harmonisation legislation under the NLF with regard to ensure the functioning of the European Single Market.

Write down competences, horizontal frameworks and processes in legislation Criteria and procedures for the use of common specifications within the framework of horizontal approach require writing down in a superordinate European legal act. To ensure coherence and legal certainty, a passage on the repeal of the articles on technical specifications and/or common specifications from sector-specific directives and regulations must be included in addition to the criteria and procedures explained above, considering the transitional period mentioned.

Only the horizontal approach laid down in future legislation is to be used to regulate the use and development of common specifications.

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Common Specifications

Imprint Federation of German Industries. (BDI e.V.) Breite Straße 29, 10178 Berlin www.bdi.eu T: +49 30 2028-0 German Lobbyregister Number R000534 Editorial Simon Weimer, M.Sc. Senior Manager Environment, Technology and Sustainability T: +49 30 2028-1589 s.weimer@bdi.eu BDI Document number: D 1563

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