Deletion of references to standards in legal texts jeopardises legal certainty and efficiency

On 4 December 2025, the German Federal Chancellor and the State Premiers of the German regional governments adopted the Federal Modernisation Agenda. The purpose of this agenda is to make Germany faster, more digital and more capable. However, the agenda’s call for references to standards to be deleted from legal texts is not expedient.

Section IX, 2.1 of the Federal Modernisation Agenda calls for references to external (technical) standards to be deleted from legal texts by default (see box). KAN shares the view that legal texts should include references to standards only where these are actually necessary. For example, the German position is that references should not be made to standards that conflict with the criteria stated in the policy paper on the role of standards in the health and safety of workers at work issued by the German Federal Ministry of Labour and Social Affairs (BMAS). In KAN’s view, however, the requirement stated in the Federal Modernisation Agenda is not suitable in its current form for application across the board (see KAN position paper on the Federal Modernisation Agenda (in German)).

References to standards reduce bureaucracy

Technical standards are the product of the stakeholders’ expertise and joint, consensus-based efforts within a transparent process. This process also makes provision for the standards to be updated regularly. Definitions, requirements, recommendations and descriptions of processes are examples of their content. If these standards did not exist, agreement would have to be reached on countless details in individual cases between the parties concerned: product safety test consultants and their clients, suppliers and purchasers of machinery, manufacturers and market surveillance authorities. Far from facilitating agreements between economic operators themselves and between economic operators and the authorities, an absence of standards would considerably increase the effort required to reach these agreements. And were legislation no longer to draw upon supporting documents such as standards, economic operators and authorities alike would lose a reliable benchmark and the legal certainty assured by it.

The state of the art must continue to be the benchmark for safety standards

A blanket deletion of references to technical standards also carries the risk of the safety standards that are actually implemented, for example in the areas of product and plant safety or measurement and testing technology for risk assessment purposes, failing to keep pace with technical progress. Were this to happen, the legislator would then have to provide detailed specifications himself, for example in the form of regulatory requirements or subordinate documents. This is neither practical nor attainable with reasonable effort. Also, if such alternative benchmarks for the assurance of legal certainty were not available, legal certainty for the affected parties would arise only through legal judgements. In practice, the removal of references to standards from legal texts as called for would increase bureaucracy in the majority of cases or would be accompanied by economic drawbacks.

High hurdles for alternatives to references to technical standards

Any solution considered in administrative law as a substitute for technical standards (such as ad hoc agreements between contracting parties, detailed specifications laid down by the authorities or interpretations issued post hoc by the courts) must satisfy the same quality benchmark as that for the development of technical standards: consensus-based work by the stakeholders involving technical expertise, comprehensible and transparent processes and regular updates.

Finally, the deletion of references to technical standards from administrative legislation would not free the economic operators from having to give prudent consideration to technical standards, for example in order to satisfy their obligations to assure safety or to follow generally accepted good practice. In other words, technical standards may continue to be of legal importance even where they do not become binding through references in legislation.