Case C‑613/14

James Elliott Construction Limited

v

Irish Asphalt Limited

(Request for a preliminary ruling from the Supreme Court (Ireland))

‛Reference for a preliminary ruling — Article 267 TFEU — Jurisdiction of the Court — Concept of ‘provision of EU law’ — Directive 89/106/EEC — Approximation of laws, regulations and administrative provisions of the Member States relating to construction products — Standard approved by the European Committee for Standardisation (CEN) pursuant to a mandate given by the European Commission — Publication of the standard in the Official Journal of the European Union — Harmonised standard EN 13242:2002 — National standard incorporating harmonised standard EN 13242:2002 — Contractual dispute between individuals — Method used to establish (non-) compliance of a product with a national standard transposing a harmonised standard — Date of establishing (non-) compliance of a product with that standard — Directive 98/34/EC — Procedure for the provision of information in the field of technical standards and regulations — Scope)’

Summary — Judgment of the Court (Third Chamber), 27 October 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Acts of the institutions — Harmonised technical standard adopted on the basis of a directive and published in the Official Journal of the European Union — Included

   (Art. 267 TFEU; Council Directive 89/106, as amended by Directive 93/68, Art. 4(1) and (2))

2. Approximation of laws — Construction products — Directive 89/106 — Subject matter — Harmonisation of rules governing market access in respect of construction products — Existence of harmonisation of national rules concerning proof applicable to a dispute concerning the conformity with contractual specifications of a construction product — None

   (Council Directive 89/106, as amended by Directive 93/68)

3. Approximation of laws — Construction products — Directive 89/106 — Products bearing the CE marking — Presumption of fitness for use — Binding nature for the national court in the case of national rules laying down requirements concerning merchantable quality and fitness for purpose of the product concerned — None

   (Council Directive 89/106, as amended by Directive 93/68, twelfth recital and Art. 4(2))

4. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Technical regulation — Meaning — National provisions specifying implied contractual terms concerning merchantable quality and fitness for purpose or quality of the products sold — Not included

   (European Parliament and Council Directive 98/34, as amended by Directive 2006/96, Arts 1(11) and 8(1), first para.)

1.  The first paragraph of Article 267 TFEU must be interpreted as meaning that the Court of Justice of the European Union has jurisdiction to give a preliminary ruling concerning the interpretation of a harmonised standard within the meaning of Article 4(1) of Directive 89/106 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Directive 93/68, references to that standard having been published by the Commission in the ‘C’ series of the Official Journal of the European Union.

   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, such a solution being justified by the very objective of Article 267 TFEU, which is to ensure the uniform application, throughout the European Union, of all provisions forming part of the European Union legal system and to ensure that the interpretation thereof does not vary according to the interpretation accorded to them by the various Member States. Moreover, the fact that a measure of EU law has no binding effect does not preclude the Court from ruling on its interpretation in proceedings for a preliminary ruling under Article 267 TFEU.

   A harmonised standard, adopted on the basis of Directive 89/106 and the references to which have been published in the Official Journal of the European Union, forms part of EU law, since it is by reference to the provisions of such a standard that it is established whether or not the presumption of conformity laid down in Article 4(2) of Directive 89/106 applies to a given product. In that regard, although evidence of compliance of a construction product with the essential requirements contained in Directive 89/106 may be provided by means other than proof of compliance with harmonised standards, that cannot call into question the existence of the legal effects of a harmonised standard. Likewise, while the development of such a harmonised standard is indeed entrusted to an organisation governed by private law, it is nevertheless a necessary implementation measure which is strictly governed by the essential requirements defined by that directive, initiated, managed and monitored by the Commission, and its legal effects are subject to prior publication by the Commission of its references in the ‘C’ series of the Official Journal of the European Union.

   (see paras 34, 35, 40, 42, 43, 47, operative part 1)

2.  Harmonised standard EN 13242:2002, entitled ‘Aggregates for unbound and hydraulically bound materials for use in civil engineering work and road construction’, must be interpreted as not binding a national court seised of a dispute concerning a contract governed by private law requiring a party to supply a product compliant with a national standard transposing that harmonised standard, either as regards the method of establishing the conformity of such a construction product with the contractual specifications or the time at which its conformity must be established.

   Directive 89/106 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Directive 93/68, which has an objective limited to the removal of obstacles to trade, seeks to harmonise not the specific conditions and rules for use of construction products at the time of their incorporation in construction and civil engineering works but the rules governing market access in respect of those products. Therefore, neither Directive 89/106 nor harmonised standard EN 13242:2002, in particular clause 6.3. thereof, laying down the rules for establishing the sulphur content of aggregates covered by that standard, harmonises the national rules applicable to proof in the context of a commercial dispute, whether it concerns the method of establishing the conformity of a construction product with the contractual specifications or the time at which the conformity of such a construction product must be established.

   (see paras 51-53, operative part 2)

3.  Article 4(2) of Directive 89/106 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Directive 93/68, read in the light of the twelfth recital of that directive, must be interpreted as meaning that the national court is not obliged to apply the presumption of fitness for use of a construction product manufactured pursuant to a harmonised standard for the purposes of establishing that such a product is of merchantable quality or fit for its purpose where a national law of a general nature governing the sale of goods, such as that at issue in the case in the main proceedings, requires that a construction product have such characteristics.

   Such a presumption of conformity seeks only to allow a construction product which meets the requirements laid down by a harmonised standard to circulate freely within the European Union. Accordingly, that directive cannot be interpreted as harmonising national rules, including those which may be implied, applicable to sales contracts for construction products. Consequently, the presumption of fitness for use provided for in Article 4(2) of Directive 89/106, read in the light of the twelfth recital of that directive, does not apply, in the context of a contractual dispute, for the purposes of assessing whether one of the parties to the contract has complied with a national contractual requirement.

   (see paras 57-59, 61, operative part 3)

4.  Article 1(11) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as last amended, by Directive 2006/96, must be interpreted as meaning that national provisions specifying, unless the parties agree otherwise, implied contractual terms concerning merchantable quality and fitness for purpose of the products sold are not technical regulations, within the meaning of that provision, drafts of which must be communicated in advance, as provided for in the first subparagraph of Article 8(1) of Directive 98/34.

   Such national legislation does not fall within the scope of the technical regulations referred to in Article 1(11) of Directive 98/34, in so far as, by merely stating implied contractual requirements, it does not contain any prohibition, within the meaning of that directive, of the manufacture, importation, marketing or use of a product, the provision or use of a service, or establishment as a service provider.

   (see paras 70, 72, operative part 4)