Government s position paper on awareness of standards and standardisation

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1 Government s position paper on awareness of standards and standardisation 1. Introduction The Awareness of Standards and Standardisation project analysed problems that arise in relation to standardisation and made recommendations for addressing them. 1 The problems that were identified and the recommendations relate to involvement in the standardisation process and access to the standards themselves. Seven of the 17 recommendations made were addressed to the government. The others related to the Netherlands Standardisation Institute (NEN), the business sector and civil-society organisations. The seven recommendations to the government were: 1. The government should formulate an unequivocal vision on how it intends to use standards and promote and support participation in the standardisation process. 2. Where standards are referred to in legislation, the government should investigate whether they comply with the requirements for drafting legislation. 3. The government must be aware of which standards it might want to use. 4. The government should gear its financial contribution to standardisation to: What can be expected of it with regard to the development of standards in the public domain. Maintaining the basic infrastructure for standardisation. Encouraging participation by market parties in the standardisation process in general. 5. The government should secure the participation of weaker market parties in the process of standardisation in a public context. 6. By analogy with regular legislation, the government should make available standards that are referred to free of charge. 7. The government should promote education and research into the use of the instrument standardisation. This position paper explains what standardisation is and the government s role in it. The following discussion of the recommendations is structured in such a way as to present the government s unequivocal position with respect to standardisation. In other words, this document presents the government s response to recommendation 1. 1 The Awareness project relates to standards produced under the auspices of the Netherlands Standardisation Institute. Participants in the Awareness project included representatives of employers organisations VNO-NCW, MKB Nederland, FME-CWM and Koninklijke Metaalunie, the FNV trade union federation, the Association of Developers and Users of Standards in the Netherlands (Normalisatiekringen Nederland), the Consumers Association (Consumentenbond) and NEN. Together, they are referred to as the Awareness Platform. 1

2 2. Standardisation Standardisation is a process in which stakeholders make voluntary agreements on the basis of consultation and consensus. Stakeholders can be manufacturers, entrepreneurs, large and small companies, service providers, users, consumers and the government. Stakeholders can, for example, make agreements on the standards to be adopted for producing particular goods or providing particular services, in light of the current state-of-the-art and the best available knowledge. These agreements can cover almost anything. A topical example is the drafting of technical standards for telephone rechargers, so that there would be a single universal recharger for all telephones. Such agreements are laid down in standards. A standard must not conflict with other standards. Standards are produced at the initiative of stakeholders, who are also responsible for organising the standardisation process and for securing agreement. An essential feature of standardisation is that it is voluntary. Parties are free to decide whether or not to draw up and apply standards. Standardisation contributes to a properly functioning economy, for example by facilitating access to markets, improving the quality and safety of products and services and simplifying the dissemination of knowledge, technology and business practices. Standardisation improves the compatibility between products, components and networks, which promotes commerce and innovation. Standardisation can increase efficiency and thus reduce costs, which benefits not only business, but society as a whole. Research has shown that standards make an important contribution to increased productivity and economic growth. 2 In the Netherlands, the standardisation process is steered by a private foundation, the Netherlands Standardisation Institute (NEN). In addition to guiding the national standardisation process, an important part of NEN s task is to facilitate the Netherlands input at European and international level. NEN manages around 30,000 standards in all, both national standards and European and international standards that have been adopted in the Netherlands. Because of the worldwide system of standardisation, fewer than 5% of the standards are national. NEN has grouped all of the subjects covered by standards into 17 sectors, with a policy committee and standards committees for each sector. The policy committees steer the standardisation process and allocate the work to the various standards committees. The standards committees draft the standards. There are more than 1,400 standards committees with around 7,000 members. NEN endeavours to secure the involvement of all the stakeholders in the policy and standards committees in order to ensure 2 G.M.P. Swann, The Economics of Standardisation: An Update, Innovative Economics Limited,

3 that all of the relevant interests are properly considered and to create a consensus and support for the standards. 3. Standardisation at European level Standardisation is increasingly an issue that is addressed at European and international level. European bodies engaged with standardisation are CEN, CENELEC and ETSI, which are independent private organisations. ETSI is concerned with telecommunications, CENELEC with electrotechnical standardisation and CEN with standardisation in other areas. The Notification Directive 3 lays down rules designed to increase the transparency of the system of standardisation. For example, a national standardisation body must notify the European Commission and the other national standardisation bodies if it is planning to draft or amend a standard. The national standardisation bodies are also not permitted to publish any new or revised national standards that are not consistent with existing European standards. For the last 25 years of so there has been a set of EU New Approach directives specifying the essential requirements for various products. The directives provide that compliance with harmonised European standards gives rise to a presumption of conformity with the essential requirements (and thus with the legislation). Application of such a standard is voluntary, and the directive can also be complied with in other ways. The New Approach directives do not specify the standards they refer to. The reference numbers of the relevant harmonised standards are published in the Official Journal of the European Communities. The national standardisation bodies must then make those standards available within their country, for which the standardisation bodies charge a fee. 4 Accordingly, the costs of financing the standardisation process are borne jointly by both the drafters and the users of standards. The European system is evolving. In September 2008, the Council of the European Union adopted Conclusions on Standardisation and Innovation. 5 In March 2010, at the request of the European Commission, an independent group of experts, the Expert Panel for the Review of the European Standardisation System (EXPRESS), published a report entitled Standardisation for a competitive and innovative Europe: a vision for On 21 October 2010, the European Parliament adopted a 3 Directive 98/34/EC of the European Parliament and the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services. 4 This does not apply for ETSI standards, however. The members of ETSI have decided to adopt a model in which the standards are financed entirely by their drafters. ETSI standards are made available free of charge when they have been registered with ETSI. 5 Council Conclusions on standardisation of 25 September 2008 ( _and.pdf)

4 resolution on the future of standardisation in Europe. On 1 June 2011, the European Commission published a Communication with a strategic vision for European standards and a proposal for modernisation of the European standardisation system The choice to use standards The government s policy is aimed at balancing policy and legislation with society s capacity for self-regulation. 8 Standardisation is an example of this. Linking legislation to standards is useful, for example, because producers and other stakeholders possess the expertise required to draft effective technical standards. Furthermore, standards are drawn up in consultation between and on the basis of consensus among stakeholders. Consequently, a standard is likely to reflect a balanced consideration of the interests of those parties. Referring to standards in legislation is a quick and easy way for the legislator to adopt current practices without issuing cumbersome new rules, and allows companies to respond to new developments and innovations, thus helping to reduce the regulatory burden. A survey has shown that central government refers directly to around 200 national NEN standards and approximately 400 international standards in its legislation. Around 2,800 other harmonised European standards are linked to the EU s New Approach directives. The titles of these harmonised standards are not mentioned in the legislation but are published in the EU s Official Journal and the Government Gazette in the Netherlands. In other words, around 3,400 standards out of a total of 30,000 are referred to in legislation. 5. Principles for the use of standards by the government The government s basic principle for the use of standards in policy and legislation is that the application of standards is voluntary. This accords with the voluntary nature of standardisation and with the EU s New Approach directives. In principle, therefore, the government s policy is to make non-mandatory referrals to standards, which it can do, for example, by means of a reference based on the presumption of conformity. With a reference based on a presumption of conformity, any addressee of a standard that adheres to the standard is presumed to be in compliance with the requirements of the legislation. The reference on the basis of a presumption of conformity leaves scope for the stakeholders to opt for solutions other than following the standard, provided the alternative method produces the result prescribed by the law. Voluntary application only works, however, if the statutory targets are clear and specific, which means that the essential requirements that have to be complied with must 7 The House will be informed about the European Commission s proposal in the usual manner. 8 Instructions for legislation, nos. 7 and 8. and the government s policy document Trust in Legislation [Vertrouwen in wetgeving], Parliamentary Documents II 2008/09, , no. 1, in particular par. 2.2 (pp. 5-6) Room for citizens, companies and executive bodies [Ruimte aan burgers, bedrijven and uitvoerende organen]. 4

5 be laid down in the law and not in a standard. That principle was recently laid down in the Instructions for Legislation (Aanwijzingen voor de regelgeving). 9 Regulators also have to take account of the fact that legislation can be complied with in various ways where there is a reference on the basis of the presumption of conformity. If an alternative method is adopted, the regulatory authority must assess it directly against the legislation. The regulator cannot then demand compliance with the standard. The legislator sometimes chooses to make a mandatory reference to a standard, which means that compliance with the legislation also requires compliance with the standard. The legislator, if it refers to a mandatory standard, will have to provide arguments for departing from the principle of referral on the basis of the presumption of conformity. One reason for departing from that principle might be that the measure is implementing international legislation that includes a mandatory reference to a standard, or, for example, because of a desire to adopt a universal method of measurement that is prescribed in a standard. 10 If the mandatory standard referred to goes further than the legislation requires, the reference must be limited to the part of the standard that is relevant for the legislation. In the government s opinion, a reference to a standard in a generally binding provision does not necessarily make the standard itself a generally binding provision laid down by the government. That position was explained earlier in a letter from the Minister of Justice, 11 has been similarly interpreted in the explanatory memorandum to the Notification Act, 12 and forms the basis of Instruction 92 of the Instructions for Legislation. This has always been the guiding principle in the way that the legislator has dealt with references to standards in the past. However, the standard does in some way become part of the law as the explanatory memorandum also states and stakeholders must therefore be able to find out what it says. It is therefore a requirement that the reference should mention the source of the standard, the standard must be generally available and the price of a standard must not be unreasonably high. These points have to be considered before legislation containing references to standards is adopted. This system is in line with the European system, since in the New Approach directives the European legislator also makes do with a reference to the harmonised standards, although these standards are not available free of charge. The position 9 See the recent Instruction for legislation 91a, Government Gazette no. 6743, 14 April By prescribing a single mandatory method of measurement, measurements produce uniform outcomes which can be enforced under criminal law in the event of a violation. 11 Parliamentary Documents II 2008/2009, 28325, no Parliamentary Documents II 1985/86, 19583, no. 3, p. 5.; See also the Explanatory Memorandum to the Housing Act, Parliamentary Documents 1986/87, , no. 3. p

6 that standards referred to in legislation do not have to be published in accordance with the Notification Act has been confirmed in judicial decisions Response to recommendations As already mentioned, this position paper has been written in such a way as to address recommendation 1 (the government should formulate an unequivocal vision). The following sections discuss the measures the government will take in response to the other recommendations. 6.1 Response to recommendations 2 and 3: assessment of standards referred to in legislation The Awareness Platform has said (recommendation 2) that before referring to standards in legislation the government should assess whether the standards meet the necessary requirements in substantive and procedural terms. In order to do so, the government must know which standards it might wish to use (recommendation 3). The government has adopted these recommendations. If the legislator refers to a standard, it must be familiar with the content of the standard. The legislator must then investigate whether all the relevant interests were taken into account in the formulation of the standard. If they were, it can be assumed that the standard is a balanced instrument that reflects the interests of the stakeholders. The conclusion that the relevant stakeholders were not all involved in formulating a standard is a reason not to refer to the standard. It is possible, however, that such a standard does coincide with government policy. In the government s opinion, in such a case there can still be a reference to a standard provided the legislator verifies, during the regular legislative process, that those stakeholders will not be unreasonably prejudiced. 6.2 Response to recommendation 4: financial contribution by the government The Awareness Platform recommends that the government should gear its funding for standardisation to what can be expected of it in relation to the formulation of standards in the public domain, preserving the basic infrastructure for standardisation and encouraging participation by market parties in the standardisation process in general. The State contributes to the maintenance of the basic infrastructure by paying 30% of NEN s annual contribution to CEN, CENELEC and ISO (the International Organisation for Standardisation) and 100% of the costs of compliance with the obligation to notify standards. The government provides an 13 This view was shared by The Hague Court of Appeal in its judgment of 16 November 2010 in the case of State vs. Knooble concerning the status of NEN standards in building legislation (The Hague Court of Appeal 16 November 2010, LJN BO4175) and by the Administrative Jurisdiction Division of the Council of State in a judgment of 2 February 2011 (LJN BP2750). 6

7 annual subsidy 14 to NEN to promote the participation of market actors in the standardisation process. This is laid down in an agreement between NEN and the State. 15 Various government departments also provide structural and project-driven funding for the development of relevant standards in specific sectors. The government contributed around 6 million in both 2008 and 2009 and 5.8 million in 2010 to NEN s activities 16. The government therefore feels that, as recommended, its contribution to standardisation is adequately geared to the relationship of standards to the public domain, preserving the basic infrastructure for standardisation and encouraging the participation of market parties in the standardisation process. 6.3 Response to recommendation 5: promotion of participation by parties The Awareness Platform recommends that, as regards standardisation in the public context, the government should secure the participation of socalled weaker market parties (recommendation 5). The government has therefore launched a project to investigate how stakeholders can be involved more directly and more cheaply (via ICT) in the standardisation process. The focus group 17 for this project has chosen to develop a system that will allow stakeholders to study drafts of standards and submit comments on them, from home or from the office, via the website The pilot projects have shown that the system leads to greater involvement by weaker market parties. The effects of the system are not all immediately apparent, however, so NEN will evaluate the system after 1 January The focus group has identified a number of aspects that are essential for increasing the involvement of parties and improving the functioning of the standardisation system. For example, a thorough stakeholders analysis is required when formulating a standard and the support for it among stakeholders must be clearly identified. The project has therefore led to an additional action plan that will be carried out by NEN. For example, an SME standardisation toolkit, 18 with specific suggestions and methods for raising awareness of standardisation and increasing the use of standards, will be developed for NEN, small and medium-sized enterprises (SMEs) 14 The government is willing to devote part of this subsidy to stimulating education and research (recommendation 7). 15 Government Gazette no. 39, 26 February In 2008, in addition to their time and expertise, the members of NEN s standards committees contributed around 8 million to NEN s turnover through their membership fees and the users of standards contributed 11 million by purchasing standards. Members of a policy committee do not pay a membership fee. 17 The current members of the focus group are representatives of the Ministry of Economic Affairs, Agriculture and Innovation (now the Ministry of Economic Affairs), the Ministry of the Interior and Kingdom Relations, employers organisations VNO-NCW, MKB-Nederland, FME-CWM, Koninklijke Metaalunie, VOM, Aannemersfederatie Nederland Bouw and Infra, the FNV trade union federation, the Dutch Consumers Association and the Association of Developers and Users of Standards in the Netherlands (Normalisatie Kringen Nederland)

8 and their trade associations, among others. NEN and its advisory board have asked the focus group to monitor implementation of the action plan. It is also the task of the focus group to address specific complaints that may arise with regard to standardisation. Finally the government has started two projects designed to improve the application of the standards themselves. The first project will reduce the regulatory burden arising from national standards referred to in legislation. The project will be carried out by NEN and its purpose is to ensure that the terms of a standard are proportionate to its objective and to minimise the regulatory burden. In the second project, a handbook has been written explaining the application of building regulations and building standards to simple renovations. The manual can be consulted at the website Response to recommendation 6: availability of mandatory national standards that are referred to The Platform recommends that standards referred to must be made available free of charge. The government has explored the possibility of implementing this recommendation and has found that the Dutch government cannot unilaterally make international standards available free of charge because the rights to European and international standards are jointly owned by the international standardisation institute and the relevant standardisation institutions. Naturally, the Dutch government has to respect their copyright. As regards awareness of national standards, the government considers it appropriate to make a distinction according to the role played by a standard in the legislation. The government s policy is that application of standards is voluntary. In this way, the advantages of standardisation, such as self-regulation, can be retained. As far as possible, therefore, references to standards should not be mandatory. 19 The government will launch a programme to convert references to mandatory standards that are regarded as unnecessary into references on the basis of a presumption of conformity. The government will endeavour to convert the redundant mandatory references before 1 January References based on the presumption of conformity will leave room for alternative and innovative solutions. The addressee of a standard will not be obliged to purchase the standard and will also be able comply with the legislation in an alternative manner. An addressee who does decide to buy the standard will be buying knowledge that can be used to his advantage in business operations. The government therefore feels it is justified in applying the profit principle if a standard is referred to on the basis of the presumption of conformity principle. A potential user must in that case be capable of making a well-informed decision before purchasing a 19 See the recent Instruction for Legislation 91a. 8

9 standard. To facilitate that, NEN s website has been upgraded to make it easier to find standards. The NEN website provides free information about many standards, including their scope of application and content, as well as a summary. If there is a reference to a mandatory standard there is no longer a free choice as to whether or not to use the standard. The standard has to be studied in order to comply with the law. The government will therefore ensure that whenever substantive new legislation entering into force on or after 1 January 2012 contains references to mandatory national standards, those standards will be available free of charge from the date of entry into force of the legislation. The process of analysing existing legislation at the time of the publication of this government reaction and converting any unnecessary references to mandatory standards into references on the basis of the presumption of conformity must be thorough and is therefore time-consuming. For this legislation, the mandatory national standards that are still referred to will be freely available from 1 January The same applies for legislation that is not yet formally in force but is at an advanced stage of development at the time of the publication of this government reaction. This would include references in draft legislation that has already been circulated for consultation, legislation that has been submitted to the Council of State for its advice, bills that have been passed by the Lower House of Parliament and legislation that has already been adopted but still has to be published or enter into force. These standards will also be made available free of charge by 1 January NEN has said that it is willing to make available, free of charge, national standards to which it owns the copyright, on condition that the government compensates it for the loss of income. Negotiations on this point will commence with NEN as soon as a survey has shown which references to mandatory standards will remain in effect. For the sake of completeness, I note that this does not affect the position expressed by the government in section 5 on the relationship of standards to the Notification Act. The government will also lobby in Brussels for European legislation not to contain mandatory references or for mandatory European standards to which the legislation refers to be made available free of charge. 20 The ministry responsible for legislation containing a reference to mandatory national standards will bear the costs of making the standards available free of charge. However, the government is dependent on NEN to make those standards available, since NEN owns the copyright to the standards. 21 If mandatory national standards are referred to on the grounds of documents drawn up by external parties (collective labour agreements, certification schemes, regulations of product boards, etc.), which at their request are declared generally binding by the government, the parties themselves will be expected to arrange for them to be made generally available free of charge. 22 If the government is the addressee of the standard, the standard will not be made available free of charge, since this would simply involve shuffling public funds around. 9

10 6.5 Response to recommendation 7: stimulation of education and research The Platform said in recommendation 7 that the government should stimulate education and research into the use of the instrument of standardisation. To implement that recommendation, the government will consult with the focus group (see section 6.3) about a follow-up to the education and research sub-project in the Awareness of Standardisation and Standard project. 10

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