Ombudsman concerned about protection under the law for actors in the construction sector
Parliamentary Ombudsman Petri Jääskeläinen has adopted a stance on the language and availability of European harmonised product standards for the construction sector. He finds it problematic that these standards are not published in all of the official EU languages, including Finnish and Swedish, in the way that other statutes are. However, the standards are binding on all actors in the construction sector once the references relating to them have been published in the Official Journal of the European Union.
The Ombudsman cannot intervene in the legislative choices made by the EU. However, he emphasises that the public authorities must ensure nationally that those parties in Finland on whom the standards are binding receive adequate information on the contents of these standards in both of the country's national languages. This is important in order to ensure that protection under the law is implemented on a basis of equality in the construction sector and that language factors do not factually constitute for example an impediment to the pursuit of a lawful livelihood.
Standards important for those engaged in the construction sector
The EU Construction Products Regulation, which entered into force last summer, requires a construction product to meet the demands of the harmonised standard relating to it. The standard defines what kinds of measures are required on the part of the manufacturer. The manufacturer must attach a CE marking, declaring that the product in question is in accordance with the relevant standard, to the product. The CE marking, in turn, is a prerequisite for being able to put the product on the market.
Thus the harmonised standards are important norms for thousands of actors in the construction sector. They are of great importance for free movement of goods. This importance is further underscored by the fact that a CE marking is not applied for from any authority; instead, the manufacturer of a construction product must himself ensure and ascertain that the product meets the requirements of the standard in question.
Copyright considerations prevent free availability of standards
In Finland, the national standardisation organisation SFS ry (the Finnish Standards Association) together with its cooperation partners intends to translate the greater part of the standards now in question, and at least in part this will be done using grants provided from public funds. Thus the situation is largely being redressed in Finland.
However, the authorities can not publish these translated standards in a public information network free of charge in the same way as national provisions; instead, they will have to be purchased from SFS due to the copyright that standardisation organisations hold.
Although the standards can be consulted free of charge in certain libraries and they can also be borrowed, the Ombudsman finds it very problematic from the national perspective of fundamental rights that binding norms such as the standards now in question are available in only such a limited way.
The public authorities must strive to make protection under the law more effective
The Ombudsman has recommended to the Ministry of the Environment, which is responsible for the construction sector, and to the Ministry of Employment and the Economy, which is responsible for standardisation, that they consider measures on the national and EU levels to redress the situation. It is a matter that involves providing parties engaged in the construction sector with more effective protection on the national level of their fundamental rights than is currently the case. It likewise has a bearing on equality between actors in the construction sector in the different EU Member States.
The matter is also of more general significance, because the importance of standards has increased and seems set to continue growing in EU legislation. For this reason inter alia, the Ombudsman has drawn the attention of the European Ombudsman to the matter.
Additional info will be provided by Senior Legal Adviser Mikko Sarja, tel. +358 (0)9 432 3364.