Official note: Incorrect references as a cause of unauthorised use of the accreditation for extensions
This official notice explains problematic and difficult to detect cases of incorrect reference to an accreditation requirement in order to help conformity assessment bodies avoid unintentionally and inadmissibly referring to accreditation or infringing trade mark rights.
Occasion
Deutsche Akkreditierungsstelle (DAkkS) would like to point out that, in the context of surveillance measures, there have been repeated cases of unjustified references to accreditation or unauthorized references and uses of the term “accreditation”, the use of symbols, trademarks or other protected signs or protected designations. On the one hand, these unauthorised uses seem to be based on misconceptions about the effect, the application requirement and the scope of accreditation. On the other hand, they are caused by erroneous references to the accreditation requirement in certain sectoral regulations.
The purpose of this official note is therefore to address critical examples of such situations and to provide the necessary clarification to protect conformity assessment bodies from violating the requirements for accreditation and infringing trademark rights in the future.
Problem definition
In practice, it may occur that legal provisions or specifications of private scheme owners refer inadmissibly to the accreditation for another legal provision or for another conformity assessment program in order to describe the competence of a conformity assessment body to be required for own purposes (see e.g. § 32 of the Upstream Emission Reduction Ordinance of 22 January 2018 (BGBl. I, p. 169) or § 19b (3) of the Austrian Fuel Ordinance).
This practice is based on the misconception that accreditation can be granted and monitored within the scope of accreditation (combination of level 2 and level 3 standards) independently of the "technical scope" according to § 2 (2) AkkStelleG.
This misconception is incorrect and contrary to Article 5 of Regulation (EC) No 765/2008.
DAkkS only acts on application and only confirms the technical scope of accreditation as defined in the application.
Surveillance according to Article 5 (3) and (4) of Regulation (EC) 765/2008, however, refers to the entire conformity assessment body and also includes the obligation to notify DAkkS without delay of any change or extension of the technical scope within the scope of accreditation.
The consequence of this incorrect approach would be that the legislator or program owner requires accreditation as competence, but the activity to be performed is not covered by the technical scope within the scope of the accreditation.
A further consequence would be that the activities carried out by the conformity assessment bodies could neither be verified for the first time by the accreditation authority nor be subject to monitoring by the accreditation authorities.
Such linking techniques should be avoided.
Attention of the conformity assessment bodies required
Even if the legislator or program owner uses the referencing techniques described above in a regulation to require the same competence requirements as in another referenced accreditation area, the accredited conformity assessment body must still recognize this as a technical expert.
It must then submit an application for an extension of the scope of its accreditation.
Otherwise, there would be an inadmissible reference to the existing accreditation when offering the "new" conformity assessment activities, without the scope of accreditation having been extended by the new law or the new conformity assessment programme as a new "scope of accreditation".
Such inaccuracies or misrepresentations, even in legislation, do not relieve the accredited conformity assessment body of its obligation to act in accordance with the law and to handle the matter accurately in accordance with accreditation law.
When an accredited conformity assessment body intends to start conformity assessment activities in a new area, the following points shall be considered:
- As far as the specific conformity assessment activities (the new law or program) are not explicitly mentioned in the technical scope within the scope of the accreditation according to the annex of the accreditation certificate or can be permissibly derived from the list of a flexible scope of accreditation, this conformity assessment activity is not confirmed and supervised by DAkkS and cannot be referred to as accredited technical scope.
- Reports on results issued before the technical scope according to § 2 (2) AkkStelleG has been extended or confirmed within the scope of the accreditation (level 3 standard / e.g. DIN EN ISO/IEC 17065) are not covered by the accreditation. They may therefore not be marked by the conformity assessment body with the accreditation symbol, nor may any other reference to accreditation be made or used. The DAkkS file reference or similar references are also prohibited.
- If an accredited conformity assessment body intends to offer a new conformity assessment activity within the scope of the accreditation, which is not yet mentioned in the technical scope, a corresponding application for extension of the accreditation shall be submitted to DAkkS. Reference to the accreditation is only permitted after positive completion of the accreditation procedure for the extension. The permissible inclusion and reference to the accreditation in the context of a flexibility of the scope remains unaffected.
All accredited bodies are required to review their working practices to ensure correct procedures and reference to accreditation.
