Comments of the Netherlands on SCC document CPR 13-12rev1 ‘Way forward within standardisation for including other essential characteristics’
In reaction to CPR 13-12rev1 the Netherlands would like to repeat its previous comments on CPR 12-03:
CEN is an institution of the EC, according to the ECJ judgement of James Elliott. According to article 267 VWEU the EU has a responsibility for CEN’s task on the subject of essential characteristics based on the mandate. For this task the Commissions guidance is valid.
However, CEN can add additional characteristics which are not based on Annex ZA or the mandate. The judgements (James Elliott and Global Gardens) only apply to essential characteristics and not to additional characteristics. This has also been made clear in the opinion of the Advocate-General in the James Elliott case. The CPR itself does not include additional characteristics. Therefore, the responsibility of the EU is only to essential characteristics, and not to additional characteristics.
The EU intends to make sure that hENs are complete and contain the most current essential characteristics. When the essential characteristics are not secured by mandate it is our view that member states are obliged to secure the health and safety of the consumer or the environment themselves. Health, safety and the environment outweigh taking away trade barriers.
In conformity with article 8.4 and 8.5 CPR member states can have more strict requirements for specific utility goals for types of products, meaning requirements for the use of a type of product and not the technical requirements for the product. Additional characteristics complement the essential characteristics which leads to a uniform CE-marking. When the additional characteristics are removed from hEN (as stated in document 12-03) and in relation to the utility goals of health, safety and the environment essential characteristics in hENs are incomplete, member states will regulate the use of the type of product with stricter requirements. The view of the EC as explained in documents CPR 12-03 and 13-12rev1 will, in our opinion, lead to a useless CE-marking for the manufacturer. In such case there is no guarantee that the manufacturer can make the product available on the market unobstructed.
Concluding: the interpretation of the EC of the judgements is, in our view, incorrect. The judgements logically only contain information about the interpretation of essential characteristics, because the CPR itself does not include additional characteristics.
From a more general policy view standardisation is first of all a private instrument that can be used for public policy and legislation as well. This is also reflected in the joint initiative on standardisation. Cooperation between public bodies and standardisation bodies is important to make sure that public-private systems functions well. Therefore it is important that the private nature of standardisation and standards is respected by public bodies. The solution described in the unofficial EC document CPR 12-03 and in CPR13-12rev1 is in our opinion going too far and is not respecting the primarily private nature of standardisation and standards. Standardisation bodies shouldn’t be restricted in the scope of standards they produce.
In light of the abovementioned the Netherlands cannot agree with the Commissions proposals stated in documents CPR 12-03 and CPR 13-12rev1.