Austrian Standards on the Austrian Standardization Act 2016
Update 31 March 2016: Out of a sense of responsibility for Austria as a centre of business and employment and based on the awareness of the stakeholders’ strong trust, Austrian Standards continues its work as a purely Austrian organization in spite of more difficult conditions - now within the framework of the Austrian Standardization Act 2016 whose essential parts become effective on 1 April 2016. That was agreed by the General Assembly of the Austrian Standards Institute on 30 March 2016.
We will publish all the information related to this issue on this page.
1. Final comments by Austrian Standards on 29 July 2015
Final comments submitted by the Austrian Standards Institute on 29 July 2015 on: 1. Draft of the Standardization Act 2015; (ref. BMWFW-96.306./005-I/11/2015) 2. Draft of the Austrian Standardization Strategy (ref. BMWFW-96.300/0005-I/11/2015) complemented by: - an alternative draft for the Standardization Act (May 2015) and - a legal opinion by em. o.Univ.Prof. DDr. Heinz Mayer (July 2015)
Introduction and conclusion - page 2 Part I Additional comments on specific points of the Draft - page 4 Part II Constitutional aspects - page 23 Part III International aspects - page 24 Part IV Financial aspects, including consequences for the funding of standardization - page 25 Part V Economic aspects, including consequences for Austria as a business location and employment in Austria - page 28 Part VI Strategic aspects and excursus on the draft "Austrian Standardization Strategy of the Federal Government" (137/ME XXV. GP - Ministerial Draft - Draft Austrian Standardization Strategy, Version of June 2015) - page 29 Part VII Relevance of the Draft Act for the Government Programme - page 36 ANNEX 1 Alternative draft of a Standardization Act 2015 (May 2015) ANNEX 2 Legal opinion by em. o.Univ.Prof. DDr. Heinz Mayer (July 2015)
In brief, Austrian Standards highlights the following issues in its final comments that also discuss the draft of an Austrian Standardization Strategy:
The objectives of the Government Programme are achieved neither by the draft of the Standardization Strategy nor by the draft of the Standardization Act, but rather frustrates them in key respects.
The draft tries to make believe that successes are reached - in fact, nothing will become less expensive, simpler or more transparent for the stakeholders. On the contrary..
The system proposed cannot work in economic terms: A financing obligation paralleled by an financing prohibition (ban on cost contributions without compensating payments) is absurd and unconceivable.
The isolation from the international and, in particular, the European standardization system would not only result in major disadvantages for economic actors. The damage especially for exporting enterprises and, as a result, for growth and employment in Austria would be enormous due to the elimination of possibilities to have an influence and to participate in decision-making. Decisions would increasingly be taken outside of Austria.
The neutral, lean and largely self-financing Austrian standardization system is to come under the control of state commissioners. How should that improve anything for the economy?
The draft violates the federal constitution of Austria in several respects: violation of the rule of law, private autonomy, freedoms of association, opinion, science and to practise a trade as well as the principle of objectivity (prohibition of arbitrary action).
2. Comments by DIN, ISO and CEN
The European Committee for Standardization (CEN), the International Organization for Standardization (ISO) and the German Institute for Standardization (DIN) submitted comments within the framework of the consultation procedure. They are made available on the website of the Austrian Parliament.
Comments submitted by:
DIN - German Institute for Standardization (PDF, 123 kB) ISO - International Organization for Standardization (PDF, 264 kB) CEN - European Committee for Standardization (PDF, 2,6 MB)
The adoption of the draft would have the following consequences:
DIN: No German-language versions of standards supplied to Austria from 1.1.2016 on (DIN translates all European standards into German) ISO: End of membership CEN: End of membership
CEN criticizes the intervention into association law: The appointment of a member of the managing body by the Ministry would not be in line with the requirement of independence described in Regulation (EU) No. 1025/2012.
CEN fundamentally criticizes the plan to publish standards by taking them over in legal acts or to make it possible to not allow revisions.
DIN, CEO Bahke: "For this reason we see no option but to discontinue the delivery of German-language versions of EN to ASI on 01.01.2016 if the draft Act should actually become effective on 01.01.2016."
ISO, General Secretary Kevin McKinley: "Making ISO standards available for free in Austria, including through national adoptions of ISO standards, would violate ASI’s membership obligation to ISO… Such violation of the above obligation by ASI could lead ultimately to the suspension of ASI’s membership in ISO. The consequence being that ASI would no longer participate in the ISO standards development process, nor be allowed to use ISO standards for national adoption, reproduction or distribution. This could impact on Austria’s ability to comply with provisions of the WTO Technical Barriers to Trade (TBT) Agreement."
CEN, Director General Elena Santiago:
On the representation of the Federal Government and States in the managing body of a private association with voting rights: "Such an exclusive position of the Public authorities in defining the Austrian standardization strategy and market needs raises concerns regarding the ability of the Austrian national standardization body to fulfil the criterion of 'Impartiality and independency of structure' established in CEN-CENELEC Guide 20."
On the provision that the Federal Government can withdraw the "authority for the creation and publication of national standards" within one year: "Consequently, we have reasonable doubts that the Austrian national standardization body may not be able to fully satisfy the criterion of stability and viability as laid down in §6 of CEN-CENELEC Guide 20."
On the idea implemented in the draft that standards adopted as mandatory should be taken over into the legal text (and, as a result, would be free of charge) and that standards that are inconsistent with legal provisions should be revised: "The 'mandatory' use of nationally adopted European standards raises questions on the coherence with European Regulation (EU)1025/2012… Within this context, in case the Austrian authorities request the withdrawal or revision of a 'harmonised' standard that they may find inconsistent with an Austrian Act or Regulation, we may risk to face a problematic situation. Indeed, on the one side, ASI risks not to comply with the CEN obligation regarding the identical adoption of European standards by all national members. On the other side, the Austrian authorities may face legal challenges regarding the infringement of the principle of free movement of goods within the Single Market by having requested the withdrawal or revision of 'harmonised' standards ensuring presumption of conformity of a product/process at European level. Please be aware that it is the view of the European Commission that national authorities cannot take decisions restricting the free movement of products complying with such a 'harmonised' standard. This position has also been confirmed by the European Court of Justice."
3. Preliminary opinion of Austrian Standards of 7 July 2015
Austrian Standards submitted its preliminary opinion on the draft Standardization Act on 7 July 2015. Comprehensive comments will be prepared by 3 August.
The draft contains several obviously unconstitutional provisions, e.g.:
Infringement of the principle of equality because of the unequal treatment of general standardization and electrotechnical standardization and the discrimination between standards associations and other associations;
Encroachment on core aspects of the freedom of association, in particular on the economic autonomy of associations and their right to the free creation of their bodies;
Violation of the fundamental right to property and the freedom to practise a trade by expropriation without compensation (financial provisions, ban on membership fees) and nationalization without compensation (compulsory licence, compulsory membership of public representatives in the executive board, right of veto for the state);
A right to issue instructions to a non-governmental institution that is not covered by the constitution;
Elimination of the constitutionally required possibility to appeal to administrative courts;
Introduction of financial obligations for the provinces that cannot be imposed by the federal legislator with simple majority for competence reasons.
The objectives of the government programme are not implemented:
especially with regard to the re-orientation of the financial structure of the standardization system in parallel to reducing the financial burden for users,
in the context of easier access to standards, and
with regard to the involvement of SMEs in the standardization process.
Austria's participation in European and international standardization would become impossible, because the framework conditions defined for a standardization body are in conflict with the membership criteria laid down by European and international standardization organizations.
Austria would lose its voice in the development of European and international standards that form the basis of competitiveness and, in particular, exports and would also be cut off from technological developments.
Genuinely Austrian enterprises would have to pay high prices for standards documents and copyright fees to institutions abroad.
The draft only allows national standardization for those who can afford to pay the full cost of a standardization project.
The internationally compatible financing model of the Austrian standardization system, which is financially self-sustaining by more than 90 percent today, would be destroyed and hence, would result in considerable subventions funded from tax revenue.
The draft would introduce a structure - absolutely unusual in comparable countries worldwide and never created since the collapse of the Eastern Bloc - of a nationalized organization with an elaborate steering and supervisory apparatus controlled by the state.
4. Download of the Draft Standardization Act & Standardization Strategy
Being a "legal act affecting the internal market", the draft of the Standardization Act was also notified to the European Commission. The European deadline for the submission of comments is 24 September 2015.
Standardisation Act 2015 Notification Number: 2015/320/A (Austria) Date received: 23/06/2015 End of Standstill: 24/09/2015 Draft Text: bg cs da de el en es et fi fr hr hu it lt lv mt nl pl pt ro sk sl sv Impact assessment: de en fr