By Bardo Schettini Gherardini
As already stressed by Megi Medzmariashvili in her post of 1st March 2016, the question of whether the Court of Justice of the European Union (‘the Court’ or ‘CJEU’) has jurisdiction to give a preliminary ruling on the interpretation of a harmonised technical standard (‘HTS’) adopted by the European Committee for Standardisation (‘CEN’) is, for the first time, raised in Case C-613/14, James Elliot Construction Ltd v Irish Asphalt Limited.
As Director – Legal Affairs of both CEN and CENELEC (the European Committee for Electrotechnical Standardization), I would like to give an insider’s view on the European standardization system and to expose a more critical approach to the Opinion delivered by the Advocate General (‘AG’) Campos Sanchez-Bordona on 28 January 2016. The AG suggested, in reference to the first question referred for a preliminary ruling, that the Court must declare that it has jurisdiction for the main reason that the HTSs should be regarded as acts of the institutions, bodies, offices or agencies of the Union for the purposes of Article 267 of the Treaty on the functioning of the Union (‘TFEU’), which is the primary law basis of the cooperation between the CJEU and the national courts via the preliminary ruling system. The opinion of the AG is based on three arguments that I would like to comment on, just after insisting on some essential elements of background on the way HTSs are produced and how CEN and the other European standardisation bodies are working.
Harmonised Technical Standards are documents of voluntary use
In the context of the European single market, CEN and CENELEC have adopted around 20.000 TSs as of today, including around 5.000 HTSs. All European standards, including HTSs, are voluntary tools of the market. The voluntary use of standards is promoted both at international and at EU level: the WTO Agreement on Technical Barriers to Trade in its Annex 1 clearly distinguishes standards from ‘technical regulations’ as it recognises that standards are voluntary in application whereas technical regulations are mandatory. This essential difference has been accepted and promoted by the European authorities for many years (see Article 1.4 of DIRECTIVE 98/34/EC of 22 June 1998) and it is still recognised by the recital (1) of Regulation (EU) No 1025/2012, which states: ‘The primary objective of standardization is the definition of voluntary technical or quality specifications’.
Hence, if the European legislator sets the legal so-called “essential requirements”, which all economic operators have to meet – whether they are using harmonised standards or not – to ensure free circulation of their products on the Single Market, it leaves to CEN, CENELEC or ETSI (i.e. the recognised European standardization organizations (ESOs)) to develop voluntary standards that can give technical solutions, accepted by the relevant industry, to ensure compliance with these essential requirements. The important aspect of this kind of public-private partnership is that if a company decides to use the HTS, it will benefit of a presumption of conformity to the essential requirements set in the relevant legislation. However, nothing will prevent the same company from demonstrating such conformity of its product otherwise without using the HTS. The voluntary nature of HTS is indeed one of the main principles of the so-called “New Approach”, followed by the legislator in more than 30 Directives and Regulations.
Harmonised Technical Standards are not EU acts within the meaning of Article 267 TFEU
The first argument developed by the AG is that “[t]he use of the new approach directives may not compromise the Court’s jurisdiction to give preliminary rulings” (see para. 42-45 of the Opinion). In that regard, an apparent logical link is established between the fact that, on one hand, the CJEU has jurisdiction to give a preliminary ruling on the interpretation of Directive 89/106 and, on the other hand, the fact that the HTSs are supplementing that Directive. Otherwise, said the AG, the harmonisation of construction products would be rendered “ineffective”, as the HTSs “could be given diverging interpretations in the various Member States”.
I do not think that this is the right way to tackle the issue relating to the scope of Article 267 TFEU in terms of acts to be interpreted by the Court: the very wording of this provision does not include any criteria related to the fact that an act supplementing an EU act may fall in its scope.
Should such extensive construction of Article 267 TFEU be confirmed by the Court, any national act implementing, for example, an EU directive, might be referred to the CJEU for a preliminary ruling. This is not consistent with a well-established case-law according to which the Court “has no jurisdiction to decide whether the interpretation given by the national court of provisions of national law is correct or to give a ruling on the conformity of those provisions with [EU] law. It is the task of the Court solely to interpret provisions of [EU] law in order to give the national court all the guidance on matters of [EU] law that it needs in order to decide the case before it” (see, inter alia, Case C-58/98, Corsten, para. 24). Indeed, the only relevant criterion is the qualification of the act as a provision of EU law. Besides, to apply such qualification to HTSs also implies to recognise the qualification of their author (e.g. CEN) as “institutions, bodies, offices or agencies of the Union”, terms used by Article 267 TFEU.
European Standards Organisations are not institutions, bodies or agencies of the EU
That leads to the second and the third argument developed by the AG: without explicitly assuming that CEN is an institution, a body or an agency of the EU, the subsequent reasoning has the same effect because: first, “[t]he Commission exercises significant control over the procedure for the drafting of harmonised technical standards by the CEN” (see para. 46-55 of the Opinion) and, second, “[t]he operation of the CEN as a standardisation body is subject to action by the European Union” (see para. 56-62). These two statements deserve a joint analysis.
Regarding the control exercised by the Commission, it must be underpin that such control is more relative than “significant” for the following reasons: 1. Regulation n°1025/2012 does not require any formal ex-ante check by the Commission before the publication of a HTS in the Official Journal of the EU (see Article 10.6); 2. in case the Commission decides not to publish the reference of the HTS adopted by CEN in the Official Journal, this standard remains valid and still may be used by the economic actors on a voluntary basis; and 3. in case a Member State or the European Parliament may lodge formal objections regarding compliance of the HTS with the requirements which it aims to cover (see Article 11 of Regulation n°1025/2012), such an objection cannot be considered – per se – as the expression of a “controlled legislative delegation in favour of a private standardisation body”, as suggested by the AG (see para. 55 of the Opinion).
Indeed, the exercise of legislative delegation is strictly construed by CJEU case-law (see Case 10/56, Meroni v High Authority and Case C-270/12, UK v European Parliament and EU Council) as, inter alia, only clearly defined executive powers may be delegated and, once again, such delegation is reserved to bodies or agencies of the EU, not to private bodies like CEN, which has not the power to adopt EU acts of general application within the meaning, in particular, of the first paragraph of Article 263 TFEU and Article 277 TFEU.
It is precisely for this last reason why the argument referring to the fact that CEN is subject to action by the EU is not valid, and the elements put forward by the AG to support this argument are not convincing.
A first element invoked by the AG is the existence, since 1984, of agreements in form of General Guidelines for the Cooperation between CEN, CENELEC and ETSI and the European Commission and the European Free Trade Association. However, these Guidelines only draw common policy objectives and principles of relationship and cooperation, as well as the main expectations from the European Standards Organisations (‘ESOs’) vis-à-vis the Commission. There is definitively no reference to some power of instruction or delegation of powers from the Commission to the ESOs. Cooperation is not, in the present case, subordination and does not confer to CEN the qualification of an EU body, within the meaning of Article 267 TFEU.
A second element raised by the AG is the financial support given by the Commission to the ESOs for the drafting of HTSs, as organized by Decision n° 1673/2006/EC of the Commission. It must be recalled that such financial support in 2015 has been equivalent to only 15% for CENELEC and 35% for CEN of their yearly budget devoted to the activities of their Brussels management centre and, as the AG himself recognises, “industry assumes the greater share of the costs of standardisation” (see para. 58 of the Opinion). Stated differently, CEN (and CENELEC) are not financially dependent on the EU financing. Furthermore, once again, there is no reference at all in this Decision to some power of instruction or delegation of powers from the Commission to the ESOs. Similar to the cooperation aspect, financial support is not, in the present case, subordination and does not confer to the CEN the qualification of an EU body within the meaning of Article 267 TFEU.
Moreover, I have some reservations regarding the specific relevance of the statement that “[t]he private nature of standardisation bodies (in this case, the CEN) does not mean that their activities fall outside the scope of EU law” (see para. 59 of the Opinion). While this is theoretically correct, I believe that such statement is simply not the issue at stake. Otherwise, if we accept to follow this approach, quod non, any private body exercising an activity within the scope of EU law would have to be considered as an EU body within the meaning of Article 267 TFEU. Besides, the AG refers to the travaux préparatoires for Regulation n°1025/2012 (see footnote 44 of the Opinion) to underline that the idea of creating an executive agency for the adoption of the technical standards required by the new approach directives has been rejected. That seems to confirm that the option of an “EU institutionalization” of CEN has been discarded and that it is clearly not a EU body. Furthermore, the AG’s reference to the Grimaldi and Gauweiler cases also support this opinion: only acts, whatever they are, adopted by an EU institution (like a recommendation from the Commission in the first case, and decisions of the Governing Council of the European Central Bank, in the second case) are concerned by Article 267 TFEU.
Last but not least, the same reasoning must prevail regarding the fact that HTSs are producing “legal effects in the internal market” (see para. 62 of the AG Opinion): National bodies, either public or private, adopting (voluntary or compulsory) acts with legal effects in the internal market cannot be considered EU bodies within the meaning of Article 267 TFEU. Otherwise, any national technical regulation or specification which “may create obstacles to the free movement of goods within the internal market”, as referred to by Directive (EU) 2015/1535 (see Article 6), might be referred to the CJEU for a preliminary ruling by a national judge, contrary to the current case-law already referred to above delimitating the scope of Article 267 TFEU to EU provisions and excluding national ones.
Conclusion: striking the right balance
As written in Article 5 of the General Guidelines for the cooperation between the ESOs and the Commission of 28 March 2003, “a transparent legal and political framework for European standardisation as an independent, consensus-oriented and voluntary activity” is a crucial requirement for the success of the entire standardisation process in the interest of the EU internal market. Consequently, the current balance obtained between industry involvement and EU public interest, consisting in a process organised by and for the stakeholders concerned, must be preserved. Paving the way to a re-qualification of the ESOs as EU bodies and of the HTSs they adopted as EU acts, even only for the purpose of preliminary rulings from the CJEU, may not only have an impact on such a balance by introducing another institutional perspective (ESOs as public actors and no longer private ones?) but also open Pandora’s Box (of Article 267 TFEU) for any other private activity connected to EU Law.