German Accreditation Advisory Board: No accession for Germany to GLOBAC

Main obstacles of GLOBAC membership

The four main obstacles of GLOBAC membership are explained below:

1. GLOBAC is not a charitable organisation. Section 4.1 of GLOBAC's Articles of Association states:
   
   “is not and does not intend to be registered as a charitable entity under the New Zealand Charities Act 2005.“
   
   Therefore, an accession of the German Accreditation Body (DAkkS) as a member of GLOBAC would violate Art. 4 (7) of Regulation (EC) 765/2008, because a national accreditation body cannot circumvent the prohibition in Art. 4 (7) of Regulation (EC) 765/2008 by realising the prohibited profit orientation through participation in a for-profit organisation.
   
   The regulations in chapter 5.2.1 of the GLOBAC statutes are inadequate. It is stated that:
   
   “5.2 Not-for-Profit
   5.2.1 GLOBAC must not operate for the purpose of, or with the effect of:
   (1) any Member of GLOBAC deriving any financial gain from membership of GLOBAC, other than as may be permitted by law, or
   (2) conferring any kind of ownership in GLOBAC’s assets on Members, but GLOBAC will not operate for the financial gain of Members simply if GLOBAC (3) engages in trade (…)”
   
   This means that it is permitted to realise profits as long as it is not prohibited by law to realise such profits. Indeed, there is no such legal prohibition for GLOBAC. For this very reason, no non-profit status was established for GLOBAC in accordance with section 4.1 of the Articles of Association. This is a legal obstacle to the accession of a national accreditation body according to Regulation (EC) 765/2008 such as DAkkS.
   
   
2. At the request of DAkkS, the European Commission replied in a letter dated 29 January 2025 (GROW.D.3/ZB grow.d.3(2025)1934690) that the recognition according to Art. 11 Regulation (EC) 765/2008 does not apply to agreements that would be signed within the framework of GLOBAC.
   
   Such an effect could only be achieved by a separate EU legal act or a trade agreement between a third country and the EU. Such an agreement does not currently exist for GLOBAC. It follows that the national accreditation bodies based in the EU do not have mutual recognition for the recognition of accreditation (Art. 11 (2), 1st alternative VO (EG) 765/2008) or recognition of conformity assessment (Art. 11 (2), 2nd alternative VO (EG) 765/2008) in relation to the EU/EEA internal market in accordance with section 5.1.1. (2) of the GLOBAC Statutes. From the point of view of EU law, there is no equivalence with an accreditation that is not based on Regulation (EC) 765/2008 or an EU trade agreement.
   
   In EU/EEA, EU accreditation bodies and the accreditation activities are directly and specifically linked to the exercise of official authority within the meaning of Art. 51 TFEU and are only exempt from the ban on cartels for this reason. EU accreditation bodies must therefore carry out all accreditation activities and contracts (including in third countries) as part of their public task. Other activities are alien to a public authority and could fall under the ban on cartels. This was decided by the European Court of Justice in the case C-142/20, Analisi G. Caracciolo Srl v Perry Johnson Laboratory Accreditation Inc, ECLI:EU:C:2021:368.
   
   
3. GLOBAC jeopardises the impartiality of accreditation, as GLOBAC is not an organisation of accreditation bodies that organises mutual recognition agreements between accreditation bodies independently of the interests of the conformity assessment bodies. On the contrary, conformity assessment bodies can also become voting members of GLOBAC, resulting in a prohibited mixing of interests that violates Article 4 (8) and Article 8 (1) of Regulation (EC) 765/2008.
   

   It cannot be tolerated that public authorities of the EU (accreditation bodies) should be subject to the binding rules of a private organisation when this organisation itself grants the monitored conformity assessment bodies the opportunity to significantly influence the regulations and procedures of their own monitoring authority (accreditation body) (Art. 8 (1) of Regulation (EC) 765/2008).

   Furthermore, it is not acceptable that a private foreign organisation imposes binding requirements on conformity assessment bodies based in an EU Member State without any legal basis in Union or national law, thereby interfering with the freedom to pursue an occupation or private property rights (Art. 15,16, 17 EU-CFR; OJ 2000/C 364/01) and increasing their costs. This is particularly problematic if the rules of this private organisation are to be enforced by a national authority and the national authority could only partially fulfil the requirements of a legal administrative procedure (Art. 41,42 EU-CFR).
   
   

4. GLOBAC currently has no legal or de facto market penetration in relation to third countries at the level of WTO member states. The GLOBAC “trademark” or a successor trademark is also completely unknown and has not been sufficiently legally protected. There are currently no references to GLOBAC, so GLOBAC cannot overcome any trade barriers. In particular, there is currently no reason to fear any trade barriers in exports due to not joining GLOBAC.