The New Approach to the New Approach: The Juridification of Harmonized Standards in EU Law

In July 2012, the Court of Justice rendered the judgment in Fra.bo, a case about the liability of a German private standards body under the free movement of goods. In October 2012, the European Parliament and Council adopted Regulation 1025/2012 on European Standardization, the long awaited formal legal framework for the cooperation between the Commission and the European Standards Organizations. It is very unlikely that either the Court or the Union legislators were planning in these instances to affect a radical overhaul of the New Approach to technical harmonization. And yet, that is exactly what they did. The result of Fra.bo and the new Regulation is to subject European harmonized standards to judicial challenge by any disgruntled manufacturer of products excluded or adversely affected by the contents of such a standard.

To have each and every manufacturer or importer complain in each and every court of the Union about each and every harmonized standard that adversely affects its position on the market, however, is much more likely to lead to wholesale paralysis than it is to increase the procedural integrity of European standardization.