Standardization and law

Since the New Legislative Framework (NLF) came into force, cooperation between standardization bodies and government has had a deregulatory effect, as the state no longer has to specify technical details. Since standards generally reflect the recognized rules of technology, the question arises as to how the state of the art, which is usually required by law, can be taken into account?

Unlike laws, which focus on fundamental requirements and remain valid unchanged for long periods of time, standards are continuously and dynamically developed in order to best reflect the state of the art. For example, European Single Market legislation often refers to the voluntary application of standards, while at the same time requiring mandatory compliance with the state of the art.

Standards are prepared by way of consensus by standardization committees made up of competent experts from the relevant field, and thus they provide technical specifications that have been agreed upon by the expert groups involved while taking the latest scientific findings into consideration. Regular revision ensures that standards remain up to date and adapted to new technologies and innovations. Standardization thus contributes to both product and process integrity.

Are standards legally binding?

In Germany, technical standards such as VDE standards differ from legal standards in that they are not legally binding. Unlike legal standards (EU regulations, national legislation, and statutory ordinances), technical standards are not binding – rather, they generally represent recommendations. However, since they reflect the state of the art during their preparation, they offer users a certain amount of investment security. The necessity of complying with standards is therefore not institutionally defined, but intrinsically anchored in the standardization aim, process, and end product.

Among other things, standards describe the corresponding solutions for the various safety requirements, as in the case of CE marking directives and regulations. They represent the link between requirements, procurement, and development processes and form an important foundation, particularly when it comes to the creation of risk analyses and assessments and deriving the relevant safety solutions.

This requirement is firmly established, among other things, in the legal norm “European Low Voltage Directive 2014/35/EU.” Legal norms or constitutional norms are statutory, usually binding regulations, as they serve to control and organize human behaviour within the framework of the constitutional state.

Technical standards may not be confused with statutory provisions. Statutory provisions have a well-defined role within a market economy. In spite of the distinction between standards – which normally are non-binding – and statutory provisions, there are nevertheless numerous important cross-connections and commonalities that are shared by standardization and law. For example, technical standards can (and must) be directly applied, even if there is no legal obligation to do so, if they have been contractually agreed or if reference is made to them in liability law, e.g., § 823 of the German Civil Code (BGB), the German Product Liability Act, or criminal law.

While technical standards come very close to legal norms in terms of their legally binding force based on their reference to the relevant standards, the hierarchy between, for example, laws, regulations, and standards remains unchanged. The reason for this is that standards do not go through a legislative process and therefore they are not legally binding.

Although statutory regulations (EU regulations, national legislation, and legal ordinances) are depicted as being superior to technical standards, all of them have a well-deserved place in society and the economy.

In the event of damage or if doubt is cast on the legality of a product, then proof can be provided through the application of standards within the scope of technical documentation. In court in particular, experts, prosecutors and ultimately judges rely on standards, as they assist in establishing the relevant facts.

• The German Product Liability Act (ProdHaftG) is aimed at manufacturers and addresses strict liability. This means that the manufacturer is liable as soon as the defective product has damaged another item – regardless of whether personal injury or property damage is involved – and must pay for the damage caused. Under this law the manufacturer must be able to prove that, at the time the product was made available, the manufacturer could not have discerned the defect based on the “State of the art in science and technology” at the time the product was placed on the market.
• In the case of fault-based liability (criminal law), documentation relating to a product, including applicable standards, is crucial in determining whether the perpetrator is guilty or innocent. If a manufacturer is unable to prove that it acted correctly in the event of damage or legal action, then it is often assumed that it failed to exercise the requisite due diligence.