After many months of negotiations, the European Union (EU) in September 2012 published its new Standardisation Regulation, which aims to address some of the major systemic challenges in European Commission (EC) standardization.
By creating a mechanism whereby EU legislation can reference, for the first time, standards created in “informal” (i.e. non-commission sponsored) fora or consortia, the new regulation should address the issues with speed and flexibility which have become apparent, particularly for the always-evolving Information and Communications Technology (ICT) space. At the same time, ensuring funding for a broad range of organizations that might otherwise lack the means to participate in standardization processes – subject matter experts (SMEs), consumer groups and other civil society representatives – the regulation aims to ensure a balanced representation of interests; however, there are a number of other interesting features of the regulation which are worth examining.
The regulation allows public procurement processes in the EU to reference technical specifications developed by bodies other than the three formal European Standards Bodies (ESBs) [1], where no EU standard exists. Strict criteria in Annex II of the regulation define the type of body whose technical specifications are eligible for adoption in this way. The strong reference to FRAND (Fair, reasonable and non-discriminatory terms) is significant, given the many years of wrangling over the lacklustre support for that concept in the Commission’s own IT procurement processes. It is an important recognition by the Commission of the value of intellectual property rights (IPR) produced in Europe, and that inventors deserve a chance to monetize their creations.
That said, any technical specification produced by a “non-official standards organization” hoping to be referenced in an EU public procurement tender, will need to run the gauntlet of a new “Multi-Stakeholder Forum” (MSF) comprising 67 representatives from national governments, trade associations and assorted industry representatives. It’s still too early to tell how this consultative body will work in practice, but observers will be keen to see how the group reaches consensus as to whether a technical specification meets the criteria for adoption and should be endorsed by EC legislation. Adopting standards that are actually used in the real world, and where the completeness of the specification is evidenced by multiple independent implementations, is a valuable objective, and one which is already a part of many standard development organizations.
Thanks to another change, technical specifications for reference in public procurement can refer to the expected interoperability or environmental performance of a product or service. This is in line with planned changes to EU Public Procurement Directives, but any change to existing criteria will take time for industry to fully understand, particularly where subjective and politically-sensitive terms like “interoperability” are concerned.
Another less commented development is the more formal advisory role accorded to the EU’s scientific research bodies, to ensure that the standards developed by the ESBs take into account “economic competitiveness… and safety and security concerns.” In an ideal world, scientific advice is, of course, objective and neutral. When linked to standards used to determine market access, that objectivity is even more critical and, potentially, more elusive. Developments in the Cloud Computing space are likely to be an early test of the EU’s ability to adopt a truly global approach.
(1) There are three European Standards Bodies: CEN (European Committee for Standardisation), CENELEC (European Committee for Electrotechnical Standardization) and ETSI (European Telecommunications Standards Institute). These three bodies are Brussels-based organizations which the European Union has recognized as the creators of European standards. As intended, CEN was to be an ISO analogue, CENELEC an IEC analogue, and ETSI an ITU-T analogue.
John Jolliffe
Senior Manager, European Government Affairs
