In the evening of 24 July 2013 disaster struck in the northern region of Spain. A high speed train derailed close to Santiago de Compostella resulting in numerous casualties. Immediately after the shock speculations started about how this tragedy could have occurred and who is to blame. Most sources point towards the driver who exceeded speed limits. Latest news reports question whether Spain’s pride, the elaborated railroad network Alta Velocidad Española (AVE) that covers more than 3,000 kilometres, lives up to the European safety standards. Sources suggest that if the required equipment had been in place, this tragedy would have never occurred. Although it is uncertain at this stage whether not living up to these standards was (part of) the actual cause of the accident, it is a striking example of how standardisation comes in to play when damage occurs. Nevertheless, its role in tort law is quite unclear.
The difficulty with standards is that they are the product of private law entities - standardisation bodies in which interested parties are represented - and therefore not law in the traditional sense of the word. Nevertheless, since these standards are developed by interested parties with high expertise on the subject matter, the European and national legislators find it a helpful instrument to regulate fairly complex matters. With the introduction of the so-called New Approach in 1985, EU directives on product safety only hold the ‘essential requirements’ e.g. protection of health and safety that goods must meet when they are placed on the market. The European standards bodies –private law entities – then have the task of drawing up corresponding technical specifications meeting the essential requirements of the directives. These harmonised standards are not mandatory i.e. remain voluntary, but compliance with them will provide a ‘presumption of conformity’ with the ‘essential requirements’.
One great example of a New Approach directive is the Directive 2008/57/EC on the interoperability of the rail system within the Community. A way to meet the essential requirements mentioned in this is applying the harmonised standards of the European Rail Traffic Management System (ERTMS) . ERTMS requires a European Train Control System that includes standard trackside equipment and a standard controller within the train cab, which would make a train stop automatically if- for example - the maximum speed is exceeded. Hence, since the maximum speed at the site of the accident was 80 km/h and the train probably drove at a speed of at least 190 km/h, the train would have stopped if such a system had been in place, as some are convinced. How to value such non-use or violation of a standard in assessing liability of – for example - the track operator or the state authorities?
To what extent are these standards legally binding? Although the application of such standards is normally voluntary, the European Commission in 2002 decided that one standard should be obligatory for all new high speed lines in Europe (ERTMS specifications). First, one could discuss the value of such a decision since the actual standard itself is still the product of private law and not formal legislation. Furthermore, , a lot of problems arose in practice. Certain ambiguities in the specifications had not been interpreted in exactly the same manner. These ambiguities meant that, in certain cases, trains equipped by different manufacturers could potentially behave differently in the same situation. This required changes in the standards. In addition to this, the alteration of the already existing equipment and infrastructure would be quite an operation and new high speed projects were already being executed. In the end, the European Railway Agency was provided with a special mandate to investigate all problems and formulated recommendations which resulted in a decision of 25 January 2012 of the Commission, which made it obligatory to install ERTMS/ECTS for projects benefiting from EU financial support. By that time, this particular part of the railway track had already been completed (11 December 2011), with the help of EU support (approximately 201.2 million euro). During the construction period, the ‘essential requirements’ as laid down in the directive were already in play and the technique was available.
In light of the above circumstances, it is quite uncertain whether a standard was applicable, how such standard should be applied and if there was any violation of such standard, how such violation should be valued. In general, a violation of standards carries weight in assessing liability and colours the duty of care, but this complex mix of facts, public laws and private standards, puts any civil law judge to a complicated task. Time will tell what the outcome will be.