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Court of Justice of the European Union Ruling on Pyrite Case

Further to our previous article onthis subject, the Court of Justice of the European Union (CJEU) has issued itspreliminary ruling in the James Elliott Construction v Irish Asphalt case. TheCJEU has largely followed the opinion of the Advocate General in its ruling inresponse to the questions raised by the Irish Supreme Court.

This case involves a dispute over the supplyof defective infill material in relation to the construction of a Dublin youthcentre. James Elliott Construction sought compensation from Irish Asphalt,which had supplied the material in question, claiming that it had caused “pyriteheave” which necessitated remedial works to the building costing €1.55 million.The case centres on whether there was a breach of the implied contractual termsbetween the parties as to the merchantability or fitness for purpose of thematerials supplied. 

The case reached the Supreme Court, which heldthat, under national law, James Elliott Construction should succeed in itsclaim. However, this was subject to any issue of EU law to be determined by theCJEU. In particular, the Supreme Court raised queries in relation to theinterpretation of an EU standard for construction products (the “HarmonisedStandard”).

Set out below is the CJEU’s response inrespect of each of the questions raised by the Supreme Court.

1(a) Does the CJEU have jurisdictionto give a preliminary ruling on the interpretation of harmonised technicalstandards?

The CJEU replied in the affirmative to thisquestion. 

1(b) Whether the Harmonised Standardrequires compliance to be established (i) only by the testing method indicatedtherein and used at the time of production and/or supply of the product or (ii)by other testing methods used later?

The CJEU held that the Harmonised Standardmust be interpreted as meaning that it allows a breach of its technicalspecifications to be established by test methods other than those expresslyprovided for in the standard, and such methods may be used at any time duringthe economically reasonable working life of the product.

2. Should national provisions implyingterms as to merchantability and fitness for purpose be disapplied on thegrounds that they are technical regulations not notified in accordance with theTechnical Standards Directive (Directive 98/34/EC)?

The CJEU upheld the contention that nationalprovisions such as those at issue in this case specifying, unless the partiesagree otherwise, implied contractual terms concerning merchantable quality andfitness for purpose of the products sold, cannot be considered to be a‘’technical regulation’’ within the meaning of the Technical StandardsDirective and therefore prior notification to the European Commission at thedraft stage was unnecessary.

3. Does the presumption of fitness foruse of building materials, derived from the Construction Products Directive(Directive 89/106/EEC) apply also for the purpose of determining whether theproduct is of merchantable quality when the latter is a condition laid down ingeneral national legislation applicable to the sale of goods?

The CJEU, following the Advocate General’sopinion, held that the presumption of fitness for use of construction products,which is provided for in the Construction Products Directive in order tofacilitate their free movement in the internal market, does not apply, in thecontext of a contractual dispute, for the purposes of assessing whether one ofthe parties to the contract has complied with a national contractualrequirement.

4 & 5. Questions regarding whetherthe sulphur limit of a product must comply with the Harmonised Standard toenjoy the presumption of fitness for use, and the question of whether thebearing of a CE mark is a prerequisite for a presumption of compliance with EUstandards? 

The CJEU noted that the questions in relationto the limits of total sulphur content of aggregate under the HarmonisedStandard, and whether a product must bear the CE marking to rely on thepresumption of fitness for use were raised by the Supreme Court only in theevent of an affirmative answer to question 3 above and as such, there was noneed to answer them.

The CJEU further noted that the decision oncosts was a matter for the Irish Supreme Court to consider.


The final decision on this matter willsubsequently lie with the Irish Supreme Court which will now use the abovepreliminary ruling of the CJEU as a basis for its interpretation and finaljudgment on this matter.

Contributed by FionnuallaCleary

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