• 2019-Nov-15

TALKING POINT on IBI

When I read for the first (and certainly not for the last) time the Recreational Craft Directive (RCD), I was struck by a very special term in Brussels’ official English concerning consumer protection: “presumption of conformity “. Consumer safety is supposed to be based on a presumption? A great law! Hard to believe, isn’t it? On closer look this seemed to make sense. 
The RCD is one of the first “new approach directives”. The ‘old approach’ reflected the traditional method, which consisted of many national authorities drafting their own legislation and going into great technical detail. As a result of different regulations, there was confusion within the EU regarding technical requirements. Watercraft registered in France, for example, were far from being considered safe in the UK, resulting in a major barrier to trade. This should not be allowed to happen in the common EU market. Boats should be able to cross borders unhindered and all EU members should protect the consumer at the same level. That is how the New Approach directives were developed.
These Directives initially laid down (rather non-technically!) “essential requirements”, which were formulated in quite general terms, such as “sufficient stability”. For the technical fulfilment of the requirement, recognised standards were used from then on, of which there were already a number at the time. There were, for example, the different class rules of the classification societies and several national and international standards. It was therefore necessary to agree first of all on a set of standards that would be recognised by all EU members. The mandate to develop the new standards went to the International Standards Organisation (ISO) in Geneva and to the European Committee for Standardisation (CEN) in Brussels. The standards developed in this way were called “harmonized standards” (EN ISO).
Watercraft manufactured in accordance with EN ISO standards are supposed or “presumed” to be capable of meeting the relevant essential requirements of the RCD. The manufacturer only issues a “Declaration of Conformity” as proof.
However, the application of the harmonised or other standards remains voluntary and the manufacturer is always free to use other technical rules to comply with the RCD. So what now?
If the manufacturer uses EN ISO standards, he can make use of the presumption of conformity. In the event of a legal dispute, the burden of proof for possible product defects lies with the buyer.
However, if the manufacturer uses other standards, the burden of proof lies with the manufacturer in the event of a dispute. A significant difference!

Uli Heinemann