Principles of New approach

General principles for the new approach were laid done by the Model Directive¹:

• Directives elaborate essential requirements
• Technical specifications are left to the European standardization bodies
• The standards remain voluntary in application
• Yet, Member states are obliged to recognise that products manufacture in compliance with these standards are presumed to be in conformity with the essential requirements

One of the new aspects of the new approach is the fact that several interested parties participate in standardization process. At this point it is necessary to say that although the Commission² was also given the possibility to participate in the process, but it did not have the resources or willingness to do so in any significant way.³

New aspect of standardization under the new approach was the participation of other interested parties like for example consumers or trade union in the standardization process.⁴ This had developed hesitantly⁵ as a result of Council Resolution of 4.11.1988⁶ This participation of consumers as will be argued later has important function within the framework of the governance.⁷

Before the full account of this involvement will be given, important factor to consider is how the technical harmonization had developed without Council anticipating the direction of this development. This is important factor which will be explained in the next part. This is because by delegating power to private agencies can be problematic.

Considerable space in this essay had been devoted to the analysis of the old approach in order to demonstrate the balance of benefits which beyond any doubt justifies the new approach and delegation of powers to the private standardization bodies.

The criticism of the new approach is, not surprisingly mainly around the issue of constitutionality of the private standardization agencies within the EU governance.

Since the private standardization bodies are involved in the decision making risk assessment, question arises whether the Treaty had provided for the private governance within the EU, as well as the constitutionality of placing the private standardization bodies in the process of decision making. Important issue was also the delegation of powers which the Commission can undertake. Although the criteria of delegation of powers as set by Meroni⁸ were relaxed, it can be argued that the Commission had delegated wider powers that it is entitled to delegate.

Two issues will be explored in turn. First fact that the new approach had developed in different direction than the Commission anticipated and secondly the problem of legitimacy of private standardization agencies to take part in the decision making process.

As it was argued in the previous chapters, realisation of the single market exclusively through the Old approach has not been sufficient enough to bring up the European process of harmonisation. This is why the Commission came to the conclusion that a different strategy to the above issue needs to be taken and therefore on the 7th of May 1985, thanks to the Council Resolution, came up with the New Approach to technical harmonisation and standards. As one can find in a foreword to such document there is “the urgent need to resolve the present situation as regards technical barriers to trade and dispel the consequent uncertainty for economic operators”.⁹

The basic structure of the New Approach has been already described in the preceding chapters of the essay. For the purpose of this paragraph one needs only to keep in mind the general characterisation of the New Approach delivered by the Council where it was recognized “that the objectives pursued by the Member States to protect the safety and health of their people as well as the consumer are equally valid in principle, even if different techniques are used to achieve them”.¹⁰

Although the Council Resolution establishing the New Approach has been modified over the years, one could fairly say that what was laid down in 1985 may now be illustrated by the elements included in EC Commission’s document titled “Enhancing the Implementation of The New Approach Directives“¹¹. The document states that the New Approach in order to be fully comprehensive must comprise of the essential elements such the definition of mandatory requirements which ensure a high level of protection of the public interest at issue such as health, safety, consumer protection and environment.

Secondly, the emphasize was given to the issue of manufacturers’ freedom in terms of choosing appropriate solution that meets the requirements laid down by the resolution. The other type of innovation has been the introduction of the CE marking which was kind of insurance that the manufacturer complies with all the harmonisation provisions that apply to the product in terms of conformity assessment procedures. As a part of the Resolution, the Member States were also obliged to take all appropriate enforcement measures in order to ensure that the non-conforming products would not be allowed to circulate around the market. In terms of the appropriate conformity assessment procedures, the type of risk related to the product was also to be included.

Notwithstanding the overall excitement on the New Approach in 1985 when the Council Resolution was issued, its outcome proved less widespread than was anticipated. Although the harmonisation process as a whole seemed to be much more accessible and faster, it has been argued that “the one size fits all” style of harmonisation may be also the source of local, economic, geographical and cultural disparities.¹² Some Member States argued that the burden of legislative harmonisation was in many cases too onerous while the other complained for example about the necessity of marketing the more polluting goods which would otherwise have never be implemented using domestic measures.

The other very important issue was the scale and scope of Community harmonisation in terms of global perspective. As it was argued in the case of the “Chocolate” Directive¹³, the decisions imposed by standardization measures, very often involve multiple factors which are of great importance for wide world community. In this particular scenario, a debate concerned the chocolate products which in order to be legally marketed in the EU as “a chocolate”, could not contain vegetable fats other than cocoa butter. The discussion ended in the year 2000 when the compromise was reached by stating that up to 5 per cent of the chocolate could be vegetable fats other than cocoa butter. As one may assume, such decision created enormous social and economical tensions; although it have not affected noticeably the production costs and the cost of chocolate marketed into European Union , it surely affected those who were the cocoa producers. And as the above Commission’s report argued, the figures show that in West Africa alone more than eleven million people were dependent on the cocoa harvest, meaning that steep reduction in the demand of cocoa beans could drastically change their socio economic situation.

Summing up the above chapter, the New Approach to harmonisation proposed by the Commission and accepted by the Council in its Resolution of the 7th May 1985 resolved the problem of the enormous number of complicated and detailed Directives, which were very often outdated long before coming into force. The Council of the European Union tried to ensure that accidents such, for example, Directive 84/438/EEC where adoption took six years after the Commission’s proposal, would never happen again.¹⁴

Nevertheless, as it was also argued in this chapter, the “one size fits all” approach is not entirely perfect. There are some issues which still need to be done in order to ensure the proper flow of the standardisation through the European Union.

The last and maybe the most important account which provoked very keen academic debate is the place of private standardization agencies within the legal system of the EU. The fact that CEN and CENELEC are private agencies had attracted the criticism as far as the constitutionality of their regulatory decision is concerned. This is because the decision in the Meroni¹⁵ case clearly stated, that only clearly defined executive powers can be delegated as opposed to discretionary powers.¹⁶

The fact that the private standardization bodies are setting the standards and limits on the goods and services in other words are involved in regulatory risk analysis within EU means that they form part of the governance. But how is this involvement justified?

Basic doctrine of the constitutional law is that of the separation of powers namely the executive and judicial part of the government.¹⁷ This is simple formula has however has very limited application within the EU government structure because of the complexities within the whole system. Instead, as Ellen Vos mentions the concern of using Treaty article of 308 and refers to balance of powers as the structure within the EU government. The concern is given to maintain this balance of powers as an important element of EU governance.¹⁸

...read more