James Elliott Construction Limited v Irish Asphalt Limited.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2016:821
• Docket Number: C-613/14
• Date: 27 October 2016
• Court: Court of Justice (European Union)
• Celex Number: 62014CJ0613
• Procedure Type: Cuestión prejudicial - sobreseimiento

JUDGMENT OF THE COURT (Third Chamber)

27 October 2016 ( *1 )

‛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’

In Case C‑613/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court (Ireland), made by decision of 19 December 2014, received at the Court on 30 December 2014, in the proceedings.

James Elliott Construction Limited

v

Irish Asphalt Limited,

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský, M. Safjan and D. Šváby (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 19 November 2015,

after considering the observations submitted on behalf of:

— James Elliott Construction Limited, by E. Barrington, SC, C. Donnelly, BL, and B. Shipsey, SC, instructed by D. O’Donovan, Solicitor,

— Irish Asphalt Limited, by T. Hogan, SC, D. Conlan Smyth, Barrister, N. Buckley, BL, instructed by N. Mulherin, Solicitor,

— Ireland, by A. Joyce and L. Williams and J. Quaney, acting as Agents, and B. Kennedy, SC, and G. Gilmore, Barrister,

— the European Commission, by A.C. Becker and G. Braga da Cruz and G. Zavvos, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 January 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 267 TFEU, Article 4 of Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12), as amended by Council Directive 93/68/EEC of 22 July 1993 (OJ 1993 L 220, p. 1) (‘Directive 89/106’), Articles 1 and 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37) as last amended by Council Directive 2006/96/EC of 20 November 2006 (OJ 2006 L 363, p. 81) (‘Directive 98/34’), and harmonised standard EN 13242:2002, entitled ‘Aggregates for unbound and hydraulically bound materials for use in civil engineering work and road construction’ (‘harmonised standard EN 13242:2002’).

2 The request has been made in proceedings concerning the supply of rock aggregate by Irish Asphalt Limited to James Elliott Construction Limited.

Legal context

EU law

Directive 89/106

3 The first, fourth, sixth, seventh, eleventh and twelfth recitals of Directive 89/106 are worded as follows: ‘Whereas Member States are responsible for ensuring that building and civil engineering works on their territory are designed and executed in a way that does not endanger the safety of persons, domestic animals and property, while respecting other essential requirements in the interests of general well-being; ... Whereas paragraph 71 of the White Paper on completing the internal market, approved by the European Council in June 1985, states that, within the general policy, particular emphasis will be placed on certain sectors, including construction; whereas the removal of technical barriers in the construction field, to the extent that they cannot be removed by mutual recognition of equivalence among all the Member States, should follow the new approach set out in the Council resolution of 7 May 1985 [OJ 1985 C 136, p. 1.] which calls for the definition of essential requirements on safety and other aspects which are important for the general well-being, without reducing the existing and justified levels of protection in the Member States; ... Whereas, as a basis for the harmonised standards or other technical specifications at European level and for the drawing up or granting of European technical approval, interpretative documents will be established in order to give concrete form to the essential requirements at a technical level; Whereas these essential requirements provide the basis for the preparation of harmonised standards at European level for construction products; whereas, in order to achieve the greatest possible advantage for a single internal market, to afford access to that market for as many manufacturers as possible, to ensure the greatest possible degree of market transparency and to create the conditions for a harmonised system of general rules in the construction industry, harmonised standards should be established as far as, and as quickly as, possible; whereas these standards are drawn up by private bodies and must remain non-mandatory texts; whereas, for that purpose, the European Committee for Standardisation (CEN) and the European Committee for Electrotechnical Standardisation (Cenelec) are recognised as the competent bodies for the adoption of harmonised standards in accordance with the general guidelines for cooperation between the Commission and those two bodies signed on 13 November 1984; whereas, for the purposes of this Directive, a harmonised standard is a technical specification (European standard or harmonised document) adopted by one or both of those bodies upon a mandate given by the Commission in accordance with the provisions of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations [OJ 1983 L 109, p. 8]; ... Whereas a product is presumed fit for use if it conforms to a harmonised standard, a European technical approval or a non-harmonised technical specification recognised at Community level; whereas, in cases where products are of little importance with respect to the essential requirements and where they deviate from existing technical specifications, their fitness for use can be certified by recourse to an approved body; Whereas products thus considered fit for use are easily recognisable by the EC mark; whereas they must be allowed free movement and free use for their intended purpose throughout the Community’.

4 Article 2(1) of that directive provides as follows: ‘Member States shall take all necessary measures to ensure that the products referred to in Article 1, which are intended for use in works, may be placed on the market only if they are fit for this intended use, that is to say they have such characteristics that the works in which they are to be incorporated, assembled, applied or installed, can, if properly designed and built, satisfy the essential requirements referred to in Article 3 when and where such works are subject to regulations containing such requirements.’

5 Article 3(1) of Directive 98/8 is worded as follows: ‘The essential requirements applicable to works which may influence the technical characteristics of a product are set out in terms of objectives in Annex I. One, some or all of these requirements may apply; they shall be satisfied during an economically reasonable working life.’

6 Article 4(1) and (2) of that directive states as follows: ‘1. Standards and technical approvals shall, for the purposes of this Directive, be referred to as “technical specifications”. For the purposes of this Directive, harmonised standards shall be the technical specifications adopted by CEN, Cenelec or both, on mandates given by the Commission in conformity with Directive 83/189/EEC, on the basis of an opinion given by the Committee referred to in Article 19 and in accordance with the general provisions concerning cooperation between the Commission and these two bodies signed on 13 November 1984. 2. Member States shall presume that [construction] products are fit for use if they enable [construction] works in which they are employed, provided the latter are properly designed and built, to satisfy the essential requirements referred to in Article 3 where such products bear the CE marking indicating that they satisfy all the provisions of this Directive, including the conformity assessment procedures laid down in Chapter V and the procedure laid down in Chapter III. The CE marking shall indicate: (a) that they comply with the relevant national standards transposing the harmonised standards, references to which have been published in the Official Journal of the European Communities. Member States shall publish the references of these national standards. (b) that they comply with a European technical approval, delivered according to the procedure of Chapter III, or or (c) that they comply with the national technical specifications referred to in paragraph 3 in as much as harmonised specifications do not exist; a list of these national specifications shall be drawn up according to the procedure in Article 5(2).’

7 Article 6(1) of Directive 89/106...