Services Standards: Defining the Core Consumer Elements ... - ANEC

Hans-W. Micklitz
language used in the technical standards. Widely drafted general
declarations or the reiteration of common sense or truisms cannot
produce any legal effect, not even if the service provider explicitly refers
to such standards. That is why clear-cut language with concrete
messages constitutes a basic element for identifying best practice.
• Democratic accountability – although technical standards are not legally
binding and although those who subscribe to them are not legally bound
to their commitment, technical standards bear a quasi-legal character.
Compliance with technical standards grants access to the Internal Market
and releases the producer from liability issues, in the absence of safe
proof to the contrary 298 . In this respect it is fair to test whether the
standard-making process meets basic democratic requirements, such as
openness, transparency, accessibility, fair participation of all relevant
stakeholders, i.e. not only a formalistic right to be heard, but a fair
chance to influence the standard-making process.
2. The substantive core consumer elements
The core consumer elements are derived from the foregoing analysis of EC
regulation of services, and so-called best practice in the examined EC
regulations and technical standards, as well as the guides and codes.
• Education and skills – the quality of the service depends to a large extent
on the personnel qualifications of those individuals who provide the
service to the consumer. In this respect professional skills and
professional training hold a prominent position. Because of the lack of
harmonised standards on professional skills and professional training in
the EU – Directive 2005/36/EC relies in essence on mutual recognition of
national educational requirements, at least outside health and safety
related professions - technical standards on services should lay down
requirements on the skills the service provider needs to meet.
• Equipment and premises – services, at least tangible services, can only
be executed by the service provider or reasonably be used by the
consumer with the aid of the necessary equipment, such as tools or any
other devices. The equipment must not only meet quality standards but
also and in particular, safety requirements. The same applies grosso
298 Compliance with technical standards is regarded either as prima facie evidence or as a
presumption of compliance, see for details Magnus/Micklitz, Liability for the Safety of
Services, 2006.
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