ebook img

Certification – Trust, Accountability, Liability PDF

248 Pages·2019·2.872 MB·English
Save to my drive
Quick download
Download
Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.

Preview Certification – Trust, Accountability, Liability

Studies in European Economic Law and Regulation 16 Peter Rott Editor Certifi cation – Trust, Accountability, Liability Studies in European Economic Law and Regulation Volume 16 Series editors Kai Purnhagen Law and Governance Group, Wageningen University Wageningen, The Netherlands Josephine van Zeben Worcester College, University of Oxford Oxford, United Kingdom Editorial Board Alberto Alemanno, HEC Paris, Paris, France Mads Andenaes, University of Oslo, Oslo, Norway Stefania Baroncelli, University of Bozen, Bozen, Italy Franziska Boehm, Karlsruhe Institute of Technology, Karlsruhe, Germany Anu Bradford, Columbia Law School, New York, USA Jan Dalhuisen, King’s College London, London, UK Michael Faure, Maastricht University, Maastricht, The Netherlands Jens-Uwe Franck, Mannheim University, Mannheim, Germany Geneviève Helleringer, University of Oxford, Oxford, UK Christopher Hodges, University of Oxford, Oxford, UK Lars Hornuf, University of Bremen, Bremen, Germany Moritz Jesse, Leiden University, Leiden, The Netherlands Marco Loos, University of Amsterdam, Amsterdam, The Netherlands Petros Mavroidis, Columbia Law School, New York, USA Hans Micklitz, European University Institute, Florence, Italy Giorgio Monti, European University Institute, Florence, Italy Florian Möslein, Philipps-University of Marburg, Marburg, Germany Dennis Patterson, Rutgers University, Camden, USA Wolf-Georg Ringe, University of Hamburg, Hamburg, Germany Jules Stuyck, Katholieke Universiteit Leuven, Leuven, Belgium Bart van Vooren, University of Copenhagen, Copenhagen, Denmark This series is devoted to the analysis of European Economic Law. The series’ scope covers a broad range of topics within economics law including, but not limited to, the relationship between EU law and WTO law; free movement under EU law and its impact on fundamental rights; antitrust law; trade law; unfair competition law; financial market law; consumer law; food law; and health law. These subjects are approached both from doctrinal and interdisciplinary perspectives. The series accepts monographs focusing on a specific topic, as well as edited collections of articles covering a specific theme or collections of articles. All contributions are subject to rigorous double-blind peer-review. More information about this series at http://www.springer.com/series/11710 Peter Rott Editor Certification – Trust, Accountability, Liability Editor Peter Rott University of Kassel Kassel, Germany ISSN 2214-2037 ISSN 2214-2045 (electronic) Studies in European Economic Law and Regulation ISBN 978-3-030-02498-7 ISBN 978-3-030-02499-4 (eBook) https://doi.org/10.1007/978-3-030-02499-4 Library of Congress Control Number: 2019932706 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Peter Rott Part I Foundations Certification as Solution to the Asymmetric Information Problem? . . . . . 11 Georg von Wangenheim Challenges for Responsible Certification in Institutional Context: The Case of Competition Law Enforcement in Markets with Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Victoria I. Daskalova and Michiel A. Heldeweg The Use of Conformity Assessment of Construction Products by the European Union and National Governments: Legitimacy, Effectiveness and the Functioning of the Union Market . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Richard Neerhof Part II S uccess and Shortcomings of Certification Systems Privacy Through Certification?: The New Certification Scheme of the General Data Protection Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Gerrit Hornung and Stefan Bauer Can Certification Enhance the Feasibility of Insurance? . . . . . . . . . . . . . . 133 Miranda P. M. Meuwissen Control in the Label: Self-Declared, Certified, Accredited? . . . . . . . . . . . . 143 Hanna Schebesta Certification of the Sustainability of Biofuels in Global Supply Chains . . . 163 Carola Glinski v vi Contents Part III Liability for Negligent Certification Certification of Medical Devices: Lessons from the PIP Scandal . . . . . . . . 189 Peter Rott Public Function Liability of Classification Societies . . . . . . . . . . . . . . . . . . . 213 Vibe Ulfbeck and Anders Møllmann Liability of Rating Agencies Under German and European Law . . . . . . . . 231 Axel Halfmeier Introduction Peter Rott 1 The Theme of the Book Certification means the confirmation of compliance with a pre-defined standard relating to a business, a product, a service or a management system. That standard can be a public law standard, a private standard or a hybrid.1 Certification has become a hot topic, in particular at the European level. It is a popular instrument of private governance of public goods, promising greater effec- tiveness than control by public authorities while at the same time taking the burden away from the State and its budget. Being a private instrument, it had long been attributed to the private sphere; which has changed drastically through recent deci- sions of the Court of Justice of the European Union (CJEU) that take into consider- ation the immense factual power of at least some private actors with regard to the facilitation of trade or to creating obstacles to trade. In the case of Fra.bo,2 the German privately organised Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) denied the certification of copper fittings for piping for water or gas, pro- duced by the Italian producer Fra.bo. The Court held that Article 28 TFEU on the free movement of goods must be interpreted as meaning that it applies to standardi- sation and certification activities of a private-law body, where the national legisla- tion considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified 1 For detailed account, see chapter 3 by VI Daskalova and MA Heldeweg. See also Schepel (2005), p. 3 ff. 2 CJEU, 12/7/2012, Case C-171/11, Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein, ECLI:EU:C:2012:453. P. Rott (*) Institute of Economic Law, Faculty of Economics and Management, University of Kassel, Kassel, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2019 1 P. Rott (ed.), Certification – Trust, Accountability, Liability, Studies in European Economic Law and Regulation 16, https://doi.org/10.1007/978-3-030-02499-4_1 2 P. Rott by that body. The decision in the case of James Elliott3 complemented this line of thinking. In this case, the CJEU found that it has jurisdiction to provide a prelimi- nary ruling concerning the interpretation of a harmonised standard that was devel- oped by a private body under the so-called ‘New Approach’ of EU product safety law, thus treated that private standard as part of EU law. The two decisions have triggered intense discussion relating to the constitutionalisation of standardisation and certification by private actors, in particular in the context of the ‘New Approach’.4 In a parallel development, the relevance of certification and similar phenomena, such as credit ratings, for the protection of the economic interests or the health and safety of third parties has come to the fore. The breast implants scandal around the French producer Poly Implants Prothèse (PIP) forms a prime example. PIP had filled the breast implants with industrial silicone rather than medical silicone. Within the system of EU medical devices law, TÜV Rheinland acted as notified body to monitor the activities of PIP. TÜV Rheinland had certified compliance of the prod- uct design of the PIP breast implants and of PIP’s quality management system with the underlying standard. Since TÜV Rheinland had not noticed the fraudulent change of production by PIP (and since PIP itself went bankrupt following the dis- covery of the fraud), victims initiated litigation against TÜV Rheinland in German and French courts. Out of the many cases, the case of Elisabeth Schmitt was referred to the CJEU.5 Rating agencies, in turn, attracted the attention of policy-makers and of investors likewise in the context of the financial crises, and in particular of the collapse of Lehman Brothers whose financial products had been rated “AAA” by Standard & Poor’s. Litigation has already been initiated in different countries including Australia and Germany.6 The above-mentioned areas of medical devices, or product safety generally, and of credit rating are only two examples for areas in which certification plays an important role. Other areas are the certification of food standards, of social and/or environmentally sound production or sourcing or of compliance with standards of consumer law or data protection law. The cases of PIP and Lehman Brothers trigger several questions. Who benefits from certification? Standardisation benefits primarily the relevant industry whose transactions costs are reduced through standardisation and through certification of compliance with certain standards.7 At the same time, certification systems may serve further purposes, such as the protection of users or other third parties, and the certificates that are issued may be addressed to a diversity of actors. Thus, the main addressee of certificates can be the customer of the producer or trader who or whose 3 CJEU. 27/10/2016, Case C-613/14 James Elliott Construction Limited v Irish Asphalt Limited, ECLI:EU:C:2016:821. 4 See, for example, Schepel (2013), p. 530; van Leeuwen (2013), p. 406; Purnhagen (2017), p. 586; Volpato (2017), p. 597; Colombo and Eliantonio (2017), p. 332. 5 CJEU, 16/2/2017, Case C-219/15 Elisabeth Schmitt v TÜV Rheinland LGA Products GmbH, ECLI:EU:C:2017:128. See chapter 9 by P Rott and the references therein. 6 See chapter 11 by A Halfmeier and the references therein. 7 See, for example, DIN (2000) and Blind et al. (2011). Introduction 3 products, services, or management are certified, as in the case of credit rating or of the certification of social and/or environmentally sound production. Certificates may, however, be also addressed to public bodies where certification is part of a public law control system, for example of cars, aircrafts or medical devices. Or, they may serve the purpose to assist other third parties such as insurers that may base their risk calculation on certificates that confirm compliance with certain standards. Another set of questions concern the regulatory design. Which design fits a cer- tification system best? Which incentive system, including sanctions, should be in place to ensure compliance of certification bodies? This may depend on a variety of factors, including the way in which the certification body is involved (solicited by the actor that is to be certified or commissioned by an independent party) or the geographical scope of the certification system (national, EU-wide or global). Within that context, (private law) liability may play an important role not only in providing compensation to victims but also as a regulatory instrument to ensure compliance. The book at hand unfolds the merits and perils of certification, employing the perspectives of different disciplines and using examples from different areas of life and law. There is an increasing amount of literature available on individual certifica- tion systems as well as on the relevance of standardisation and certification for (cross-border) trade, not least triggered by the above-mentioned recent case law of the CJEU. This book takes research from various areas up and presents certification as a cross-cutting issue. It invites lawyers and regulators from different branches, in which certification plays a role, to learn from the experience of other branches, rather than re-inventing the wheel time and again for each specific area. Indeed, it is one aim of the book to discover commonalities between certification systems but also to find differences that call for differential treatment. 2 The Structure of the Book The book is structured in three parts. Part 1, consisting of three chapters by Georg von Wangenheim, Michiel Heldeweg and Victoria Daskalova, and Richard Neerhof, focuses on the fundamentals of certification: its economic background, the manifold shapes and forms certification can take, and its relevance for competition and free trade. The chapters of Part 2 deal with the conditions for the success of certification in creating trust as well as incentives for compliance with private standards, and in monitoring compliance with standards, using examples from various sectors. Gerrit Hornung and Stefan Bauer introduce and discuss the new data protection seal as envisaged by the General Data Protection Regulation. Miranda Meuwissen presents empirical studies that show how certification gains relevance for insurance by facili- tating risk classification and management. In a more skeptical approach, Hanna Schebesta looks at problematic (voluntary) certification practices in the food sector and presents the new certification marks of the EU Trademark Regulation of 2015

See more

The list of books you might like

Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.