¹ Case C-613/14, James Elliott Constructiong Ltd. v. Irish Asphalt Ltd., 2016 E.C.R. I-821.Google Scholar

² Hereinafter, “the Court.”Google Scholar

³ According to the mutual recognition principle, national authorities shall refrain from imposing additional requirements on goods lawfully produced and/or marketed in another Member State. The principle was first sketched in Case C-120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein, 1979 E.C.R. I-42, para. 8 (Cassis de Dijon) and further developed in subsequent case law. See, Case C-525/14, Comm'n v. Czech Republic, 2016 E.C.R. I-714, para. 35; Case C-481/12, UAB “Juvelta” v. Vļ “Lietuvos prabavimo rūmai,” 2014 E.C.R. I-11, para. 17.Google Scholar

⁴ Express derogations to free movement of goods are established by the Consolidated Version of the Treaty on the Functioning of the European Union art. 36, May 9, 2008, 2008 O.J. (C 115) 47 [hereinafter TFEU]. Moreover, the “mandatory requirements” doctrine developed by the Court since Cassis de Dijon allows Member States to depart from free movement provisions where overriding reasons of general interests are alleged.Google Scholar

⁵ See Jacques Pelkmans, The New Approach to Technical Harmonization and Standardization, 25(3) J. of Common Mkt. Stud. 249, 251 (1987).Google Scholar

⁶ Council Resolution 136/01, of 7 May 1985, on a New Approach to Technical Harmonization and Standards 1985 O.J. (C 136) 1.Google Scholar

⁷ Comité Européen de Normalisation.Google Scholar

⁸ Comité Européen de Normalisation Électrotechnique.Google Scholar

⁹ European Telecommunications Standards Institute.Google Scholar

¹⁰ In general, standardization activities follow the “Code of Good Practice” established by the Annex III to the 1995 WTO Agreement: Technical Barriers to Trade (Jan. 1, 1995) [hereinafter TBT Agreement]. The Code is specified by the Jan. 21, 2000 TBT Committee's “Decision on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of the TBT Agreement.”Google Scholar

¹¹ See Council Resolution 136/01, supra note 6, at Annex II, para. VII (The presumption of conformity might be in any case challenged by MSs whenever the safety of individuals, domestic animals, or the integrity of property is at stake).Google Scholar

¹² Regulation (EU) 1025/2012 of the European Parliament and of the Council of Oct. 25 2012 on European Standardisation, Amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and Repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council, 2012 O.J. (L 316/12).Google Scholar

¹³ The “New Legislative Framework” of 9 July 2008 consists of Regulation (EC) 765/2008 of July 9, 2008, Setting Out the Requirements for Accreditation and Market Surveillance Relating to the Marketing of Products, 2008 O.J. (L 218/30), Decision 768/2008/EC of July 9, 2008, on a Common Framework for the Marketing of Products, 2008 O.J. (L 218/82), and Regulation (EC) 764/2008 of July 9, 2008, Laying Down Procedures Relating to the Application of Certain National Technical Rules to Products Lawfully Marketed in Another Member State, 2008 O.J. (L 218/21).Google Scholar

¹⁴ In this specific case, standard EN 13242:2002 implementing Directive 89/106 EEC of Dec. 21, 1998, on the Approximation of Law, Regulations and Administrative Provisions of the Member States Relating to Construction Products, 1998 O.J. (L 40) 12.Google Scholar

¹⁵ At the time the facts occurred, Directive 98/34/EC of June 22, 1998, Laying Down a Procedure for the Provision of Information in the Field of Technical Standards and Regulations, 1998 O.J. (L 204/37) (EC), repealing Directive 83/189/EEC.Google Scholar

¹⁶ Case C-613/14, supra note 1, at para. 40 (Opinion of Advocate General Campos Sánchez-Bordona).Google Scholar

¹⁷ Id. Google Scholar

¹⁸ Id. at para. 34 (“[…]the Court has jurisdiction to interpret acts which, while indeed adopted by bodies which cannot be described as ‘institutions, bodies, offices or agencies of the Union', are by their nature measures implementing or applying an act of EU law”).Google Scholar

¹⁹ Id. Google Scholar

²⁰ Case C-192/89, S. Z. Sevince v. Staatssecretaris van Justitie, 1990 E.C.R. I-3461.Google Scholar

²¹ Case C-188/91, Deutsche Shell v. Hauptzollamt Hamburg-Harburg, 1993 E.C.R. I-363.Google Scholar

²² Specifically, Sevince called into question the “Agreement establishing an Association between the European Economic Community and Turkey” signed in Ankara on 12 September 1963, concluded on behalf of the Community by Council Decision 64/732/EEC of Dec. 23, 1963, on the Conclusion of the Agreement Establishing Association Between the European Economic Community and Turkey; Deutsche Shell, on the contrary, concerned the “Convention on a Common Transit Procedure” concluded on May 20, 1987 between the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden, the Swiss Confederation, and the European Economic Community, approved on behalf of the Community by Council Decision 87/415/EEC of 15 June 1987.Google Scholar

²³ The organs established by the international agreements at stake had indeed a mixed composition of EC and non-EC delegates. See Council Decision 64/732/EEC supra note 22, at art. 23(1).Google Scholar

²⁴ EEC Treaty art. 177(1)(b) (only admitted preliminary rulings on “the validity and interpretation of acts of the institutions of the Community and of the ECB”).Google Scholar

²⁵ Case C-613/14, supra note 1, at paras. 44-45 (Opinion of Advocate General Campos Sánchez-Bordona. AG Campos adds that a purely formalistic interpretation of TFEU art. 267 would inevitably compromise the harmonization efforts carried out by the Union: Because the Court has jurisdiction to rule on any act related to full harmonization legislation, that should be also true for any measure issued within the New Approach framework. If this were not the case, the jurisdictional boundaries of the Court would vary depending on the regulatory design adopted).Google Scholar

²⁶ Id. at paras. 40–42.Google Scholar

²⁷ Id. at para. 43. The prerogatives of the Commission regarding technical standardization are detailed in Regulation (EU) 1025/2012, supra note 12, at art. 10.Google Scholar

²⁸ See CEN and CENELEC position on the consequences of the judgment of the European Court of Justice on James Elliott Construction Limited v. Irish Asphalt Limited (2017), https://www.cencenelec.eu/News/Policy_Opinions/PolicyOpinions/PositionPaper_Consequences_Judgment_Elliott%20case.pdf; See also Orgalime Position Paper, Call to preserve the EU ‘New Approach’ as one of the Single Market's best regulatory techniques (2017), http://www.orgalime.org/sites/default/files/position-papers/Orgalime%20Position%20Paper%20-%20Save%20the%20New%20Approach%20-%2007-03-2017.pdf (by The European Engineering Industries Association, a partner organization of CEN and CENELEC).Google Scholar

²⁹ See Carlo Colombo & Mariolina Eliantonio, Harmonized Technical Standards as Part of EU Law: Juridification with a Number of Unresolved Legitimacy Concerns?, 24(2) Maastricht J. of Eur. & Comp. L. 323 (2017); Annalisa Volpato, The Harmonized Standards before the ECJ: James Elliott Construction, 54(2) Common Mkt. L. Rev. 591 (2017).Google Scholar

³⁰ The legitimacy of private standardization within the EU legal order has been sometimes contested in light of the Meroni non-delegation doctrine. See Josef Falke, Achievements and Unresolved Problems of European Standardization: The Ingenuity of Practice and the Queries of Lawyers, in Integrating Scientific Expertise into Regulatory Decisionmaking – National Traditions and European Innovations 187 (Christian Joerges, Karl-Heinz Ladeur & Ellen Vos eds., Nomos 1997); Herwig C.H. Hofmann, Gerard C. Rowe, & Alexander H. Türk, Administrative Law and Policy of the European Union, 247–49 (2011). Nevertheless, the delegation-focused debate on standardization seems to consider one side of the story only, as it assumes that private standard-setting bodies occupy a regulatory space that was previously controlled by public institutions only. On the contrary, it might also be the case that … the central problem with standardization under the New Approach is not the privatisation of public lawmaking, but the political instrumentalisation of private rulemaking. And the normative answer to that problem is not the reinvigoration of the public, but, rather, the reinvigoration of the public-regardingness of responsive self-regulation. Harm Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets 257 (Hart, 2005).Google Scholar

³¹ See Decision 768/2008, supra note 13, at art. R9.Google Scholar

³² See Harm Schepel, The New Approach to the New Approach: The Juridification of Harmonized Standards in EU Law, 20 (4) Maastricht J. of Eur. and Comp. L. 521, 528 (2013). See Report from the Commission to the Council and the European Parliament on “Efficiency and Accountability in European Standardization under the New Approach”, at para. 6, COM (1998) 291 final, (“no positive decision is required by which authorities approve the standards, even if previously such technical aspects were subject of regulation”). As a consequence of the marginal involvement of public authorities in technical standardisation, there were no legal acts of the EU institutions that might be brought before the Court.Google Scholar

³³ Regulation 1025/2012, supra note 12, at art. 11(1).Google Scholar

³⁴ Schepel, supra note 32, at 530–31.Google Scholar

³⁵ Case T-474/15, Global Garden Products Italy SpA v. Commission, 2017 E.C.R. 36, para. 60.Google Scholar

³⁶ An opening of the Court in this direction could have already been inferred—a contrario—in Case C-185/08 Latchways plc & Eurosafe Solutions BV v. Kedge Safety Systems BV & Consolidated Nederland BV, 2010 E.C.R. I-9983, para. 32. Here, the Court neglected its jurisdiction over a technical standard not requested by the Commission because they had no links whatsoever with EU law. This suggests that different circumstances—i.e. where a request from the Commission exists—might have led the Court to affirm its jurisdiction.Google Scholar

³⁷ Cf. Schepel, Harm & Falke, Josef, Legal Aspects of Standardization in the Member States of the EC and EFTA: Comparative Report v. 1 68 (2000).Google Scholar

³⁸ See Rob van Gestel & Hans-W. Micklitz, European Integration Through Standardization: How Judicial Review is Breaking Down the Club House of Private Standardization Bodies, 50 (1) Common Mkt. L. Rev. 145 (2013).Google Scholar

³⁹ Regulation 1025/2012, supra note 12, at art. 10.Google Scholar

⁴⁰ Id. at art. 5.Google Scholar

⁴¹ See generally Ellen Vos, The European Court of Justice in the Face of Scientific Uncertainty and Complexity, in Judicial Activism at the European Court of Justice 142 (Mark Dawson, Bruno de Witte, & Elise Muir eds., Elgar, 2013).Google Scholar

⁴² CEN and CENELEC position paper, supra note 28, at para. 7.Google Scholar

⁴³ Case C-269/90, Hauptzollamt München-Mitte v. Technische Universität München, 1991 E.C.R. I-5469 (Opinion of Advocate General Jacobs at para. 13. Nowadays judges “cannot shy away from technical questions.”).Google Scholar

⁴⁴ See Eric Barbier de la Serre & Anne-Lise Sibony, Expert evidence before the EC Courts, 45(4) Common Mkt. L. Rev. 941, 961 (2008).Google Scholar

⁴⁵ Statute of the Court of Justice of the European Union art. 25.Google Scholar

⁴⁶ Sale of Goods Act 1893 (Pub. Stat. No. 71/1893) (Ir.), http://www.irishstatutebook.ie/eli/1893/act/71/enacted/en/print.Google Scholar

⁴⁷ Case C-613/14, supra note 1, at para. 51 (Opinion of Advocate General Campos Sánchez-Bordona).Google Scholar

⁴⁸ Id. at para. 65. According to Art. 1(11), Directive 98/34/EC “technical regulation” refers to technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.Google Scholar

⁴⁹ Case C-613/14, supra note 1, at para. 51 (Opinion of Advocate General Campos Sánchez-Bordona).Google Scholar

⁵⁰ At least not always, and never directly. HSs do have some sort of institutional support, as they provide compliant goods with a presumption of conformity with legislative requirement that binds Members States’ authorities. Surely enough, this presumption is attractive to manufacturers, and therefore contributes to the diffusion of HSs within European markets. Only in this sense HSs can be deemed to have a legally-meaningful endorsement from EU institutions.Google Scholar

⁵¹ Schepel, supra note 30, at 342.Google Scholar

⁵² Schepel & Falke, supra note 37, at 231… . as a sociological matter, the more standards are used and accepted not only in the professional circles concerned but by the public at large, the more they can be considered to form part of the normative structure of society and hence to be capable of laying down baseline requirements of appropriate behaviour. See also Barend van Leeuwen, European Standardisation of Services and its Impact on Private Law 146 (Hart, 2017).Google Scholar

⁵³ A clear understanding of the penetration of standards in private law would require a comparative and sectorial empirical analysis, which considers the relevance of technical standards in a specific industry. Some interesting empirical insights are offered, at least as regards tort law, in Leeuwen, supra note 52, at 167–68.Google Scholar

⁵⁴ Standardization of services has formally entered the EU agenda with Regulation (EU) 1025/2012, supra note 12. This results in new challenges for standard-setting activities and raises some concerns about the impact of service standards on private law. See generally Panagiotis Delimatsis, Standard-Setting in Services: New Frontiers in Rule-Making and the Role of the EU, in Research Handbook on Trade in Services 268 (Pierre Sauvé and Martin Roy eds., Elgar, 2016).Google Scholar

⁵⁵ The European Union does not have general competence over private law matters. It has, however, sectorial regulatory powers—for example in consumer protection—and broader regulatory tools—for example legislation under TFEU arts. 114–15—for steering private law across the Member States. See Stephen Weatherill, Competence and European Private Law, in The Cambridge Companion to European Union Private Law 58 (Christian Twigg-Flesner ed., CUP 2010).Google Scholar