Further to our recent article, the Advocate General has issued his opinion in the James Elliott Construction v Irish Asphalt case. The Advocate General’s Opinion is not binding on the Court of Justice of the European Union (“CJEU”), which has yet to rule on the issues. However, an opinion from an Advocate General is very influential and is followed by the CJEU in the majority of cases.
The Supreme Court sought clarification on a number of points, which we have set out below followed by the Advocate General’s opinion in each instance.
1(a) Does the CJEU have jurisdiction to give a preliminary ruling on the interpretation of harmonised technical standards?
The Advocate General stated that when the terms of a private contract oblige one of the parties to supply a product manufactured in accordance with a national technical standard, which has been implemented as part of a harmonised technical standard adopted by the Comité Européen de Nomalisation pursuant to a mandate from the European Commission, the CJEU has jurisdiction to give a preliminary ruling on the interpretation of that standard.
1(b) Whether EN 13242:2002 (“the Harmonised Standard”) requires compliance to be established (i) only by the testing method indicated therein and used at the time of production and/or supply of the product or (ii) by other testing methods used later?
The Advocate General’s view is that the Harmonised Standard must be interpreted as meaning that it allows a breach of its technical specifications to be established by test methods other than those expressly provided for in the Harmonised Standard itself, and that both methods may be used at any time during the economically reasonable working life of the product.
2. Should national provisions implying terms as to merchantability and fitness for purpose be disapplied on the grounds that they are technical regulations not notified in accordance with the Technical Standards Directive?
A national provision like section 14(2) of the Sale of Goods Act 1893, as amended by the 1980 Act, cannot be considered to be a ‘technical regulation’ within the meaning of the Technical Standards Directive and therefore prior notification to the Commission at the draft stage was unnecessary. As a result, the Advocate General’s view is that the national provisions need not be disapplied.
3. Does the presumption of fitness for use of building materials, derived from Construction Products Directive apply also for the purpose of determining whether the product is of merchantable quality when the latter is a condition laid down in general national legislation applicable to sale of goods?
The Advocate General answered this question in the negative and stated that the presumption of fitness for use of construction products, which is provided for in the Construction Products Directive in order to facilitate their free movement in the internal market, is of no effect when the merchantable quality of construction products is assessed for the purposes of the application of a national law governing the sale of goods.
4. Is it necessary for the sulphur limit of a product to comply with the Harmonised Standard in order to enjoy a presumption of fitness for purpose?
The Advocate General suggests that the Harmonised Standard does not establish a limit of 1% for the total sulfur content of aggregates and any conflicting national technical standard must not be applied as this would compromise the purpose of the Construction Products Directive to allow for free movement of goods within the internal market.
5. Is the bearing of a CE mark a prerequisite for a presumption of compliance with EU standards?
The Advocate General’s view is that CE marking is not a prerequisite for establishing compliance but is simply evidence of compliance with the requirements of the Construction Products Directive and the Harmonised Standard.
In conclusion, if the CJEU is to follow the Advocate General’s Opinion and agrees that merchantability falls to be determined according to any test carried out at any time (as previously assumed), then it is clear that the Clause 804 (the product in dispute in this case) was not of merchantable quality. Consequently, it may be easier for other plaintiffs involved in similar proceedings to demonstrate the unmerchantability of the Clause 804 material.
The Advocate General’s Opinion will be followed by deliberations prior to final judgment being given in the upcoming months. We will keep you up to date as the case progresses.
Contributed by: Fionnualla Cleary