EMC standards and Brexit

By J. M. Woodgate B.Sc.(Eng.) C.Eng.  MIET SMIEEE FAES Hon FInstSCE MIOA

EMC standards and the law

More information has recently come to light on the current melée about the EC refusing to list standards in the OJ without additional Annexes of complex wording. The issue stems from a decision of an EU court in a dispute, known as 'the Elliot case', between two Irish construction companies about the supply of aggregate with more sulphur content than is allowed. Too much sulphur, in the form of iron pyrites (lovely gold colour but worth very little),  can cause concrete to develop cracks.

The report of the court decision is available in full at:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2018:764:FIN

The crucial decision is on page 12:

It follows from the above that a harmonised standard such as that at issue in the main proceedings, adopted on the basis of Directive 89/106 and the references to which have been published in the Official Journal of the European Union, forms part of EU law , since it is by reference to the provisions of such a standard that it is established whether or not the presumption laid down in Article 4(2) of Directive 89/106 applies to a given product.

This is apparently contrary to what the Commission established under the New Regulatory Framework. Under the old rules, Directives included all the technical requirements, which meant that they took a very long time to develop, might be inconsistent with applicable product standards, and were very difficult to update, because each Member State's legislation had to be amended and that could not only take years but might be blocked by a legislature that was persuaded that the change was not in the interests of that Member State.

The new framework 'farmed out' the work of developing a 'standards route to compliance' to independent Standards-Making Bodies, CEN, CENELEC and ETSI, under mandates from the Commission, so that the standards were more or less 'at arm's length' from the Commission itself, and conformity to a standard provided only prima facie (read: apparent) evidence of compliance with the Directive. The court ruling say that this cannot continue; the Commission must bear responsibility for the content of standards as legal documents.

To this end, the Commission has hired 'HAS assessors', technical experts who assess the standards for unacceptable content, such as:

• Undated references to standards, so 'law' changes when standards are updated or withdrawn;
• No clear correspondence between requirements of the standard and requirements of the Directive;
• Overly-flexible requirements, involving, for example ad hoc agreements between manufacturer and test house on what is to be measured and how;
• Legal interpretive issues in individual standards.

The court has not determined not that standards are not suitable to show presumption of compliance, but that they are not suitable as law.

In the standards world, the advantages and disadvantages of dated and undated standards are about equally balanced, largely because no-one except me has spelt out how they should be managed (and there is no enthusiasm generally to manage them properly). What tips the balance for me is that with dated references the user of the standard knows which edition to apply.

It is true that many standards used to specify requirements without any clear indication of how to prove that the requirement is met. many of these errors have been corrected but some probably still remain, and there may indeed be a further step in reasoning required to correlate the requirement with the Essential requirements of the Directive. It is also true that some EMC standards sought to produce an 'EMC profile' of a product, involving extended testing, without reference to any regulatory requirement for it.

Agreements between manufacturer and test house are mostly found in ETSI standards. Clearly, this is very problematic from the legal point of view. However, there is a strong case tor referring to manufacturers' specifications in the case of immunity requirements. In the field of 'professional audio', we have 'intercom' products, with telephone bandwidth and the accent on intelligibility in noisy backgrounds, but we also have products used in recording studios, where EMI can invalidate a costly orchestral recording. Is it sensible to force a 'one-size fits all' signal-to-interference ratio of, say, 60 dB, overkill for the intercom and pitifully inadequate for the recording product? This is why the present 'criteria' refer to 'acceptable degradation' from the performance in the absence of EMI. This wording wasn't agreed on the spur of the moment; it took a lot of thought and negotiation and should not be abandoned except in favour of something better (if such exists).

An additional complication arises from the very independence of the European standards-making bodies; can they possibly be permitted to make changes to their standards, because that would be equivalent to changing the law? There is nothing like a team of lawyers for painting society into a corner.

To add further exciting news, the court judgement concerned is described as 'preliminary'; it is four years old but that is nothing on a legal time-scale, so it might be overturned. But it appears that the Commission doesn't think it will be.

Late in November 2018, BSI confirmed that CEN and CENELEC had both agreed that Brexit would not require Britain to leave those organizations, because certain membership provisions could be waived. At about the same time, the Commission released a statement, which can be found at:

CELEX_52018DC0764_EN_TXT.docx

This doesn't make a prominent reference to the legal mayhem, but it does state:

The Commission must therefore pay particular attention to the content of the harmonised standards. The Court of Justice of the European Union has further reinforced this requirement in its recent case law, in particular by the Case C-613/14 'James Elliott Construction Limited vs. Irish Asphalt Limited'[1]. Through this judgment, the Court clarified the role and legal status of harmonised standards by concluding that harmonised standards 'form part of EU law', even though they are developed by independent private organisations and their use remains voluntary.

It appears from the tenor of this document that the Commission is aware of a need to improve its machinery for the commissioning and approval of standards related to legislation and intends to take action. But no-one know how long that will take.

Meanwhile, the HAS consultancy scheme has run into trouble. It seems that two assessors can read the same standard very differently, so that, for example, a standard is rated acceptable under one Directive or Regulation (such as EMC) but totally unacceptable under another (such as RED). Also, an assessor was asked to look at safety standards EN 60065 and EN 60950-1. It is well-known that these have not been updated because they will be withdrawn next year in favour of EN 62368-1, but apparently the assessor was either not told, or was told to ignore that. So consequently, the reports are extremely negative about undated references and outdated references. Nothing else would actually be expected, so the exercise was a total waste of time and (tax-payers) money. The Commission's response is to recruit more consultants.