 Throughout Europe, standardised safety requirements for the most part apply for products. Uniform safety standards presuppose, however, that these products are tested for conformity according to the same standards and that the testing centres are accredited and monitored according to uniform standards. German legislation has now removed the fragmented system of accreditation in Germany with the establishment of the Deutsche Akkreditierungsstelle GmbH (DAkkS). "This is an important step towards increasing the safety of German products," explained Dr. Arun Kapoor, expert for product safety and accreditation law at the law firm Noerr in Munich.
With immediate effect, companies engaging in product testing will now only be accredited by DAkkS. DAkkS is instructed by the State to ensure that the testing centres have the necessary competence on a permanent basis. "The German accreditation system, which formerly comprised 20 different centres, partly in public authority ownership and partly in private ownership, was simply no longer competitive when compared to the rest of Europe," Kapoor added. Confidence in the safety of tested products can only arise if the testers themselves are monitored according to uniform standards.
The new accreditation law not only boosts confidence in the safety of German products, but also involves a higher degree of legal certainty for the testing centres affected. In future, DAkkS provides them with a central organisation from which they obtain all accreditations. DAkkS is an institution organised under private law, but the new German accreditation office acts like a public authority. The procedure for the grant of new accreditations and the monitoring of existing accreditations is therefore subject to the strict rules of administrative law. Negative decisions on accreditation applications, unjustified costs orders and burdensome monitoring measures can therefore already be challenged by means of an objection and an action for rescission before the administrative court. "At the same time, the testing centres will have to get used to decisions of the DAkkS now only being challengeable within one month, because they otherwise become binding and non-appealable after that," explained the lawyer.
Background
To date, one of the main weaknesses in the realisation of the European Single Market was that there were no standard European requirements for the organisation of the accreditation and monitoring of testing centres (so-called notified bodies), with the aid of which manufacturers could have the conformity of their products with European safety regulations confirmed.
Until now, the monitoring of conformity assessment centres took place in Germany through various accreditation offices which also competed with one another. This increasingly led to a loss of confidence in product testing by German conformity assessment centres and thus indirectly to doubts about the safety of German products.
In European Regulation No. 765/2008, which entered into force on 1 January 2010, European legislation put an end to the fragmented nature of the German accreditation system. All EU member states were obliged to create one single accreditation centre, which grants and monitors accreditations as a sovereign act. For this reason, German legislation formed the Deutsche Akkreditierungsstelle GmbH (DAkkS) and entrusted it with the grant and monitoring of all accreditations by way of "lending". As the DAkkS must act as a public authority, the relationship between the accredited testing centres and their accrediting body is now subject to a completely new legal regime since the beginning of the year. Whereas agreements between the participants could be regulated by contract in the past, this is now for the most part subject to the strict regulations of administrative law.
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