Tuesday, 3 April 2012

EU Legal Package on Standardisation: legal process taking up speed - some key issues for the ICT part


Since the European Commission presented the EU legal package on standardisation in June last year (see my blog post from then) the legal process has taken place in the European Parliament, where the IMCO committee has the lead, and in the Council, where a working group of the competitiveness council deals with the topic. .

Both institutions recently finalised their positions. Once both institutions have given their chair or rapporteur, respectively, a mandate to negotiate the formal trialogue discussions between the Parliament, the Council and the Commission will take place. For the time being informal probing talks are held.

Regarding the ICT part, i.e. essentially Articles 9 and 10 and Annex II of the draft Regulation, there are still some critical elements that need to be sorted out in these trialogue negotiations. Below I'd like to share my key observations and concerns:


Applying Comitology procedure for recognising ICT specifications from fora/consortia: 
 
The Member States propose to apply the examination procedure of the Comitology rules for approving an ICT specification from a forum/consortium so that it is recognised and can be used in Europe. This means that a formal vote according to the Treaty on European Union would be carried out each and every time when an ICT specification is to be recognised. 



What I can understand The Member States want to have a role in the decision making process. They are member of the ICT Multi-Stakeholder Platform (MSP), but in exceptional cases they may wish to have a distinct Member States position differentiating their position clearly from the overall MSP statement of advice. But after all, recognising ICT specifications that may be used but are not compulsory is not an implementing act.
What puzzles me Do the Member States really want to take the task to vote formally on each and every ICT specification under assessment? If the examination procedure is applied the ICT specifications would get a very formal status – even higher than European Norms developed and approved in the ESOs. What is the purpose? Which problems do the Member States intend to address with the examination procedure. After all, the use of recognised ICT specifications will be totally optional, not mandated, not compulsory. So the examination procedure seems to go far to far.
What could be a good solution If everybody would agree to use the advisory procedure of Comitoloy (i.e. apply Article 18.2 of the draft Regulation) this would allow them – if needed – to voice a distinct piece of Advice which would clearly have more weight than the overall statement of the MSP. And if not needed the Member States could simply – as a member of the MSP – participate in the process. With this they could interfere in exceptional cases and in an appropriate way regarding the totally optional character of recognised ICT specifications. And all this even though the recognition of ICT specifications is NOT a delegated act and comitology should not have to be applied at all.


No mentioning about policies

An important element of the recognition of ICT fora/consortia specifications is to have a common and solid base of specifications that may be used either in public procurement or in policies. This is of high relevance since policy often precedes procurement. And while in theory the Commission – independent of what the outcome of the Regulation will be – is free to reference in policies whatever they deem appropriate, a common list of recognised ICT specifications would create some driving force to the Commission to consider this list of recognised ICT specifications and give priority to them. So there would be some factor of harmonisation. Now, therefore, I am astonished and disappointed that policies are not mentioned at all, neither in the position from IMCO, nor, as far as I know, in the one from the Council.  

What I can understand The term policy is confusing – e.g. because there is no real equivalent in a number of other European languages than English. Some Member States seem to have thought that policies means heavy regulation. In fact, it is more about innovation policy or industrial policy in the broader sense.
What puzzles me Again, the Commission is free to reference any specification in policies where the Commission has the prerogative. Therefore, explicitly including policies in Article 9 would put limitations to the Commission. I can't understand why the Member States are so resistant against including the topic of policies in Article 9.
What could be a good solution In the context of the trialogue negotiations everybody involved should reconsider the issue and agree to add policies to Article 9. A common base for selecting ICT specifications that are referenced in either public procurement or in policies is of major benefit – and again, there is no risk because otherwise the Commission may do whatever they want anyway.



Adding Coherence to Annex II

Some Member States insist on adding “coherence” to the requirements that are to be considered in the assessment of ICT specifications from fora/consortia. While they originally proposed that coherence should be a further criterion the latest proposal is to add coherence at the beginning of Annex II as a generic policy requirement. And nota bene this is coherence with the catalogue of European Norms. 


What I can understand Coherence with European Norms is important to avoid conflicts and support a coherent catalogue of standards. At first I did not see the purpose since the intention of making use of ICT specifications from fora/consortia is not for the regulated domain, not for New Approach Directives. However, I was convinced that in some cases like eHealth (with a European patient card etc.) it will be important to ensure interoperability and therefore coherence is of some relevance.
What puzzles me
First of call, I am happy that the idea to add coherence as a criterion is no longer under discussion because it is more a policy objective than an attribute of a specific specification.
Secondly, I am concerned that the wording does not discriminate against fora/consortia and, in case of conflict, give automatic predominance to ESO specifications. WLAN vs. HiperLan is a prominent example here. So in case of conflict a very thorough look needs to be taken and any automatism needs to avoided.
What could be a good solution The latest proposal which I had the opportunity to be told about seems to be fine. It is about adding an introductory paragraph to Annex II requiring that ICT specifications are coherent with European standards (i.e. ENs). This means they cover domains where the European Standardisation bodies are not active; or where the ESO standards have not gained market uptake. But is should be made explicit that there is no automatism to give predominance to ESO specifications.

4 comments:

Glory said...

Thanks for the great summary. I haven't been following the Standardisation Regulation and this was a great summary but became recently interested due to the larger meaning this may have for EU decision-making. It looks like this Standardisation Proposal may be caught in the cross-fire of a power struggle between the Commission and the Council. The Council may have realized that they gave way too much power up to the Commission with the 2009 COmitology reforms of the Lisbon Treaty and wants to use the examiniation procedure to claw back that power.

One question though, won't the Member State committee making the formal vote be the same committee that would have been participating in the development of the standards anyway? The difference being that now they vote as opposed to offering an opinion/advice?

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