Legal opinion of EA confirms the need for amendments at GLOBAC to ensure compliance with EU law
A legal opinion commissioned by the European co-operation for Accreditation (EA) confirms that EA's accession to the international organization GLOBAC also requires changes to its documents in order to ensure compliance with European law.
Background
After Germany had already declared that it could not join GLOBAC without significant amendments being made to GLOBAC's documents, it was questionable whether EA, as a regional accreditation organisation, could join GLOBAC without violating European law.
EA then commissioned a legal opinion to clarify whether the deficiencies with regard to the GLOBAC statutes would also prevent EA, which is not itself a national accreditation body, from joining.
In this respect, the legal assessment now available for the organisation EA must be distinguished from the legal assessment for national accreditation bodies in the EU.
Result of the EA legal opinion
The EA legal opinion concludes that amendments to the GLOBAC documents are also necessary for EA’ accession.
This legal opinion did not deal with the same issues as the legal opinions of Deutsche Akkreditierungsstelle (DAkkS) and the Dutch accreditation body Raad voor Accreditatie (RvA), which mainly dealt with the situation of national accreditation bodies in the EU and only touched on EA in passing. For this reason, and in accordance with EA's mandate, EA's legal opinion did not address all the issues raised in the legal opinions of DAkkS and RvA.
In particular, EA's legal opinion states the following with regard to the deficiencies in the statutes relating to non-profit status:
"However, the wording of this [non-profit] clause —primarily Article 5.2(3) of the Constitution— is drafted so broadly that [GLOBAC] could participate in competition. According to this provision, [GLOBAC] may ‘engage in trade,’ without clarification as to what this concretely entails in practice.
This is at odds with European law and with the Court of Justice's ruling in Case C-142/20."
With regard to the voting rights of conformity assessment bodies and their influence, and with regard to requirements that exceed those of the harmonised standards in accordance with Regulation (EC) 1025/2012, the opinion proposes an opt-out clause for EU NABs:
"An opt-out clause could be incorporated into the Constitution of [GLOBAC] for the benefit of EA and its members. This would enable EA and its members to be protected against decisions that contravene European legislation, without threatening the general operation of [GLOBAC]. In practice, invoking the opt-out clause would mean that EA (and/or its members) may withdraw from participation in [GLOBAC]'s activities if decisions are adopted that conflict with European legal provisions."
This means that, in addition to the "basic MLA" proposed in the DAkkS legal opinion as the minimum consensus permissible under European law, GLOBAC is presented with a further amendment to enable EA and the national accreditation bodies in the EU to join GLOBAC.
However, DAkkS maintains that the basic MLA is the solution, as negative experiences with the opt-out provision regarding IAF MD:28 have shown that opt-out provisions can be associated with a high degree of legal uncertainty.
GLOBAC negotiations
GLOBAC has offered DAkkS to enter into negotiations on the necessary amendments from the end of September 2025. It is hoped that GLOBAC will also allow EA to participate in the negotiations as a regional accreditation organisation in order to contribute the perspective of a regional accreditation organisation.
DAkkS supports and welcomes the upcoming negotiation process and hopes that sustainable improvements can be made for a new international accreditation organisation.
