James Elliott Construction Limited v Irish Asphalt Limited.
Date: 2016-10-27
34


Second, it must be recalled that, according to case-law, 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 (see, to that effect, judgments of 20 September 1990, Sevince, C‑192/89, EU:C:1990:322, paragraph 10, and 21 January 1993, Deutsche Shell, C‑188/91, EU:C:1993:24, paragraph 17), 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 (judgment of 20 September 1990, Sevince, C‑192/89, EU:C:1990:322, paragraph 11).
35


Moreover, the Court has also held that 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 (judgment of 21 January 1993, Deutsche Shell, C‑188/91, EU:C:1993:24, paragraph 18).
38


Pursuant to Article 4(2) of Directive 89/106, read in conjunction with the eleventh recital of that directive, such publication has the effect of conferring on products which are covered by that directive, and which satisfy the technical requirements defined in the harmonised standards relating to those products, the benefit of a presumption of conformity with the basic requirements of that directive (see, to that effect, judgment of 21 October 2010, Latchways and Eurosafe Solutions, C‑185/08, EU:C:2010:619, paragraph 31), allowing the CE marking to be affixed to them.
40


It follows from the above that a harmonised standard such as that at issue in the main proceedings, 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 laid down in Article 4(2) of Directive 89/106 applies to a given product.
41


A product’s compliance with the technical requirements defined by such a standard allows the presumption that that product satisfies the essential requirements contained in Directive 89/106. It follows that that product is authorised to circulate, to be placed on the market and to be used freely within the territory of all Member States of the European Union, with the result that, pursuant to Article 6(1) of that directive, Member States may not impose additional requirements on such products for their effective use on the market and use within the territory (see, to that effect, judgment of 16 October 2014, Commission v Germany, C‑100/13, EU:C:2014:2293, paragraphs 55, 56 and 63).
43


It must, moreover, be noted that 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.
47


The answer to question 1(a) is therefore that the first paragraph of Article 267 TFEU must be interpreted as meaning that the Court 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, references to that standard having been published by the Commission in the ‘C’ series of the Official Journal of the European Union.
50


However, it must be recalled, as stated in the fourth recital of Directive 89/106, that that directive aims to remove obstacles to trade by creating conditions which enable construction products to be marketed freely within the European Union (see, to that effect, judgment of 18 October 2012, Elenca, C‑385/10, EU:C:2012:634, paragraph 15).
64


As a preliminary point, it must be recalled, as the referring court correctly states, that, in accordance with settled case-law, the inapplicability of a technical regulation which has not been notified in accordance with Article 8 of Directive 98/34 can be invoked in proceedings between individuals (see judgments of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54, and 26 September 2000, Unilever, C‑443/98, EU:C:2000:496, paragraphs 40 to 43, 48 and 49).
66


It follows from that provision that the concept of ‘technical regulation’ covers three categories, namely (i) a ‘technical specification’ within the meaning of Article 1(3) of Directive 98/34, (ii) ‘other requirements’ as defined in Article 1(4) of that directive, and (iii) the prohibition of the manufacture, importation, marketing or use of a product referred to in Article 1(11) of the directive (judgment of 10 July 2014, Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 16 and the case-law cited).
67


In the present case, it is apparent, first, that provisions such as those at issue in the main proceedings, either in themselves, or as interpreted by the Irish courts, do not fall within the concept of ‘technical specification’ within the meaning of Article 1(3) of Directive 98/34. That concept covers only national measures which refer to a product or its packaging as such and thus lay down one of the characteristics required of a product (judgment of 10 July 2014, Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 19 and the case-law cited). That is clearly not the case for a requirement which applies, unless the parties have agreed otherwise, generally to the sale of all products.
69


In that regard, the Court has explained that, in order to be classified as ‘other requirements’ within the meaning of that provision, the national measures at issue must constitute conditions which can significantly influence the composition or nature of the product concerned or its marketing, since requirements of a general nature cannot amount to such conditions or, consequently, be classified as ‘other requirements’ (see judgment of 10 July 2014, Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 26 and 27 and the case-law cited).