Office of Technology Assessment at the German Bundestag

Juliane Jörissen

Possibilities and problems in pursuing and ensuring national and EU environmental protection objectives within the framework of european standard setting

TAB report no. 043. Berlin 1996, 158 pages

Summary

In view of the growing importance of harmonized technical standards for industry and for the environment, the Committee for the Environment, Nature Conservation and Nuclear Safety of the German Federal Parliament in 1993 proposed a technology assessment project to study the possibilities and problems associated with the attainment of environmental protection goals within the framework of European standardization. On the one hand, this proposal was triggered by concern that the European-wide standardization of quality requirements to be met in products, as enforced in the course of the completion of the single European market, could lower present national standards of quality, safety, and environmental protection. On the other hand, the widespread application of standards across a heterogeneous spectrum of products was seen as a new opportunity for the integration of environmental protection aspects in a number of industrial products and processes. If the idea of environmental protection integrated in products could be anchored successfully in European standardization, the harmonization policy of the EU, though primarily serving the establishment of a single European market, could also play an important role in achieving sustainable future developments.

Objects and objectives

In introducing the so-called »New Approach« in 1985, the European Community adopted a model of technology control by deregulation with a long tradition in many countries of the European Union. Its key feature is the division of labor between government and independent industrial organizations, thus achieving a kind of burden relief for the government by associations. The European legislator restricts its role to the definition of general safety requirements to be met by products, and refers to technical standards for the implementation, which are drafted by the European standardization bodies, largely under their own responsibility. Once a product has been manufactured in accordance with these standards, a "refutable presumption" implies that legal requirements are met as well. The advantages inherent in this new approach to harmonization generally are said to be these:

• Accelerated completion of the single market
• Effective elimination of technical trade barriers
• Relieving community legislators of detailed technical regulations
• Rapid adaptation of product requirements to the state of the art in technical development
• Better acceptance of standards by the industries involved

These indisputable advantages are offset by the grave drawback, however, of the »New Approach« shifting regulatory activities of the government to the private sector, thus making it difficult to control. The directives mainly define general safety goals while concrete definition and practical implementation leave considerable leeway for assessment to European standardization organizations. Establishing technical standards always requires balancing the interests of health and environmental protection, on the one hand, against those of the economy, on the other hand, which ultimately leaves standardization bodies to decide about the risk in handling products which the general public reasonably can be expected to bear. From the point of view of democracy theory, this is a questionable approach. The insufficient democratic legitimization of European standardization is further aggravated by the lack of any systematic control of the harmonized standards by EC agencies.

Another problem is seen in the fact that the inclusion of common interests, such as environmental protection, is not properly guaranteed procedurally. The principle of »territorial representation« practiced in European standardization, in which only harmonized national positions can be argued which have already been achieved by compromises, implies a loss of pluralistic rights of participation. This reduces the opportunity to have their interests taken into account for all those societal groups which, for institutional, organizational and financial reasons, have fewer opportunities to influence the standard setting; this would also include, in particular, consumer and environmental protection interests. Finally, criticism is also leveled against the lack of transparency in the European standardization procedure, and against the insufficient possibilities for the public to have access and exert influence.

After this analysis of weak spots, the key issue discussed in this study is about ensuring adequate consideration, in standardization, of common interests, and about improving the democratic legitimization of standards without detracting from their efficiency in industrial harmonization in Europe.

Ensuring a High Level of Environmental Protection in Product-related Standardization

The Maastricht Treaty finally established the protection of the environment as an independent political objective and also as a cross-sectional task. A factor of particular interest in this respect is the Commission's commitment to base its proposals for the single European Market in the areas of health, safety, environmental protection, and consumer protection on a »high level of protection". However, "high level of protection« is a rather vague term and should be made more tangible to get the character of a clear indication of a political direction. However, the Maastricht version of the EC Treaty in principle provides sufficient starting points for this.

If the harmonized standards fail to consider adequately such areas of public concern as environmental protection, energy conservation, and resource conservation, this could cause the member countries to block the commercialization of products meeting the standards. Achieving the high level of protection guaranteed in the Treaty must therefore be in the interest of the Community and, hence, also of the European standardization bodies. These bodies are well aware of their duties in environmental protection, as is demonstrated by various efforts over the past few years to improve the institutionalized and administrative preconditions for the systematic inclusion of environmental aspects in product-related standardization. It remains doubtful, however, whether this suffices to guarantee a high long-term level of environmental protection in product standardization, especially if the demand for greater environmental compatibility of products clashes with the need to improve the efficiency of completing the single market and accelerating standardization activities.

In order to restrict the scope the standardization bodies, and to ensure that the quite ambitious goals in the EC Treaty are reflected in specific product policies, additional measures are considered necessary. This could be achieved best by defining legal requirements as precisely as possible. However, given the wide spectrum of products covered in many directives, this will be difficult. For this reason, a staged implementation of the most important requirements is proposed, among other approaches, in accordance with the mode of the »Bauprodukten-Richtlinie"; the standardization mandates should be worded more precisely, and environmental impact assessments of standards should be introduced. It is also suggested that general criteria of ecological product design (use of raw materials and energy; consumption of water; emissions; lifetime; recyclability; waste etc.) be laid down in an EC ordinance so as to give a more specific definition to the "high level of protection".

On the whole, however, these proposals indicate that relatively tight constraints are imposed upon any attempt to improve, by more precise legal conditions, the way in which environmental interests can be accommodated in standardization. If the efficiency of standardization is not to be jeopardized, standardization bodies must be left sufficient scope of discretion for their own definitions so as not to impede technical and functional innovations.

Reforming the Standardization Process

The more inadequate the possibilities are to ensure by normative requirements that European standards maintain the high level of environmental protection required, the more interest is focused on the procedural guarantees seeking to achieve a balanced process of drafting standards. The delegation of the governments right to private standardization organizations is considered tolerable by the majority of experts as long as the standards are worked out by expert bodies in a regular, transparent procedure with the representative participation of interested parties and of the public. If proceedings meet these requirements, conflicting interests are assumed to balance out, thus leading to a solution which optimally meets all interests. According to overwhelming opinion in the jurisprudence, however, the European standardization procedure in its present form doesn't offer such a guarantee.

There is widespread agreement, that environmental interests and other diffuse interests at present do not have the same opportunities of getting accepted in European standardization procedures as do the interests of industry. This is mainly due to the fact that the representatives of common interests are unable to make optimum use of existing possibilities of participation, because of their very limited resources in terms of manpower, organization, and funding. Hence, in order to establish »equal opportunities", improvements in infrastructure preconditions for the participation of both government agencies working in the field of environmental protection and representatives of environmental associations are demanded. This includes adequate funding of expenses, refunding of travel costs, funds for hiring external experts, etc.

In order to meet the constitutional requirement of transparency, proposals are made especially for the early availability of information about pending standardization projects, for sufficient time for the public to raise objections, and for the obligation to give reasons for specific decisions. In the opinion of the experts consulted by TAB, the obligation to explain the reasons would not have to extend to all aspects of technical standardization, but preferably to the way in which standardization bodies weighed acceptable environmental risks and health risks caused by products. Evaluatory decisions by standardization bodies should be disclosed, and the discretionary powers in evaluation should be explained at least by two alternative proposals complete with the underlying reasons. Finally, in the opinion of the majority, proceedings should be regulated in a legally binding way by an EC ordinance.

Analysis of the Legal Consequences of the New Approach

Although European standards are de jure non-binding recommendations, they do acquire a significance in the regulatory model of the New Approach which by far exceeds the role of a »refutable presumption".

National authorities have no comprehensive monitoring competence. In particular, they are unable to refute independently the presumption that a product manufactured in accordance with existing standards is also in conformity with the directives. Although they are at liberty, under the so-called protective clause proceedings, to withdraw a product from commercial use if they feel that it does not meet the criteria under the directive, such a ban will only be preliminary in nature and can be upheld only if the EC Commission confirms the national decision. Industry, in turn, is at liberty to not produce in accordance with standards, but will then have to accept one-off testing, which is a time consuming and costly procedure and may not be recognized by the authorities of the other member countries. All this implies that there is considerable pressure to comply with standards because manufacturers otherwise would run the risk of not being able to sell their products EU-wide.

The far-reaching de facto binding effect of European standards raises the key issue whether such a delegation of quasi-legislative rights to private associations is compatible with the principles of European law and German basic law. Contray to opinion expressed in some of the literature, the experts commissioned by TAB agree in their findings that the new approach constitutes no illegal transfer of sovreign powers to private parties, ultimately also because there is no sensible and feasible alternative to the EU approach towards harmonizing legal provisions. European legislators are both unable to regulate all technical details by himself, and unable to do without a European-wide standardization of product requirements because of the danger to jeopardize the integration objective. If a single market can be achieved only with the assistance of European standardization bodies, the Commission also must have the right to transfer to those bodies the competences they need.

Enhanced Democratic Legitimization of Standards

If European legislators cannot do without the participation of private associations they must ensure, by setting the appropriate boundary conditions, that this cooperative process is given democratic legitimization. To the extent in which government regulations protecting the public are replaced by standards, these standards must be subjected to effective control by the bodies of the EC to ensure that the goals of the EC Treaty and the requirements under the respective directives are met. The experts consulted by TAB have submitted various proposals on this aspect, such as the adoption of standards by the Commission within the framework of a »closed-loop legislation", delegation of a voting representative of the Commission into standardization bodies, or the introduction of a "conformity check« by the commission.

Yet, it is still a matter of debate how to design this control without overstraining the technical and manpower resources of the Commission and, above all, without jeopardizing the basic idea underlying the new approach, namely deregulation. The only alternative to defuse the problem, should government control of standardization procedures turn out to be unfeasible, is seen in diluting the mandatory nature of standards for product harmonization. If standards were reduced to the status of mere recommendations by private associations, there would be no legitimization problem and, hence, no need for government control. It is doubtful whether this can be achieved without undermining the confidence of manufacturers in harmonized standards, and thus jeopardizing the integration goal.

Possibilities of National Policy to influence the Design of Boundary Conditions for European Standardization

Any active environmental policy of the member countries seeking to make increasing use of European standardization as an instrument of environmental protection, will have to make use of the remaining, shrinking, national scope for action and, above all, cooperate at European action level.

The executive branches of the member countries can exert direct influence on European legislation through their representatives in the Council, and they could use that influence to achieve an ambitious level of environmental protection in the product related directives under the new approach. In this respect, it must be taken into account, however, that the Council, when adopting these harmonization directives, votes with a qualified majority. As the weight of the votes of the large member countries, including the Federal Republic of Germany, is less than one sixth of the votes necessary for a qualified majority, each member country wanting the acceptance of specific political position needs allies. In principle, there are no other means to prevent agreement on the least common denominator, unless the planned regulation were to violate primary Community law.

The Council decision is largely predetermined by the draft submitted by the Commission which, in turn, was formulated with the help of advisory committees composed partly of representatives of interested parties, partly of civil servants from the responsible national ministries, and partly of external experts. Although these committees have only advisory functions, no decisionmaking functions, they do exert influence on the way in which the Commission drafts are worded. This could be used increasingly for the purposes of a proactive environmental policy. This would require that environmental interests are represented sufficiently well and in an expert manner in the appropriate committees.

If no ambitious level of environmental protection can be attained in Community regulation with respect to a specific harmonization directive, the only possibility left is going alone nationally. Ultimately, the Federal Republic of Germany could make specific use of protective clause proceedings under secondary law as long as the Federal Government and the States feel that European technical standards neglect, or discount, environmental aspects. Practice has shown that such objections raised by member countries in most cases were confirmed by the Commission.

The dominating role of the executive branch in the common decisionmaking structures of the Community has resulted in a gradual drain of authority in national parliaments which, according to the critics of Maastricht, could well endanger the constitutional balance in the Federal Republic of Germany. In a 1992 amendment to the Basic Law, therefore, an attempt was made to secure for the German Federal Parliament an active, creative role within the framework of European Legislation. However, neither the German Basic Law nor the (implementing) legislation adopted in that respect about cooperation between the Federal Government and the Federal Parliament in matters of the European Union contain detailed provisions about the type and form of participation of the Federal Parliament. Consequently, it is up to the Federal Parliament itself to define its role within the limits of the constitution. The Federal Parliament is in no way restricted to observing European Legislation from a critical, though passive, perspective. Instead, the German Federal Parliament could take the initiative itself, but its influence would be limited by the possibilities open to the federal government.