James Elliott Construction Ltd: European judgment

The James Elliott case (Judgment of the European Court of Justice ECLI:EU:C:2016:821 of 27 October 2016, Case C-613/14), together with the judgment of Global Garden Products Italy SpA, has helped to strengthen the process of standardization of recent years, highlighting the relevance of harmonized standards in regulating compliance in the European market.

What happened during Case C-613/14

The construction company James Elliott Construction Ltd sued the cement aggregate supplier Irish Asphalt Ltd in the Irish Supreme Court, as the supply caused one and a half million euros’ worth of damage to the floors and ceilings of a construction. The company stated that the products supplied did not comply with the Irish transposition standard EN 13242:2002, harmonized with the Construction Products Directive 89/106/EEC, and published in the Official Journal of the European Union.


The Court of Justice ruled on the matter:
“[40] It follows from the foregoing that a harmonized standard […] falls within Union law, since it is by reference to the provisions of that standard that it is determined whether or not the presumption […] applies to a particular product.
[43] It should also be noted that […] it is nevertheless a necessary and strictly regulated implementation measure of the essential requirements defined by this directive, carried out on the initiative and under the direction and control of the Commission, and its legal effects are subject to prior publication […] in the Official Journal of the European Union, series C.”


What does it mean? Let’s look at another case to better understand.

The judgment ECLI:EU:T:2017:36 for Global Garden Products Italy SpA

Global Garden Products Italy SpA (GGP Italia) requested the cancellation of the withdrawal of a lawn mower from the market, as decided by the European Commission upon reporting the state of Latvia due to the alleged non-compliance with the harmonized standard EN 60335-2-77:2010.
GGP Italia had placed the machines on the market in 2012 based on standard EN 60335-2-77:2006, when this standard was harmonized with the Machinery Directive 98/37/EC, but not automatically with the 2006/42/EC version of the Machinery Directive, after revision.
In fact, EN 60335-2-77:2010 was published in the Official Journal of the EU in April 2011, but the Commission never set an expiry date for the previous standard of 2006, which was not officially withdrawn until 1 September 2013.


The question to be answered was therefore whether the manufacturer GGP Italia could have used the standard EN 60335-2-77:2006 in the period between 2012 and 1 September 2013.
The European Court of Justice ruled that standard EN 60335-2-77:2006, having not been formally withdrawn by the Commission, continued to be considered harmonized until its withdrawal the following year.

Effects and corrective measures of the standardization process

In November 2018, the Commission published a policy on harmonized standards that made clear reference to the Elliott and GGP judgments.
In it, the Commission announced three actions to:
1. increase transparency
2. strengthen legal certainty
3. speed up the adoption of harmonized standards


Based on the case law, the Commission therefore modified its standardization procedure, adopting several improvements to make it more robust. The Commission subsequently published some incremental actions, including:

• amendment accepted by the European Parliament of Art. 10 of Regulation 1025/2012 to improve the standardization system by strengthening the role of the national organizations of Member States
• establishment by standardization bodies of mechanisms to improve cooperation, for example through monitoring committees or advisory groups
• adoption of a new services contract with HAS (Harmonized Standard Consultants) in place of the old ones with “New Approach Consultants” who have the power to streamline the process of evaluating the standards
• being developed, verifying their compliance with EU law and making the system faster and more efficient
• change in the publication method from the C series (Communication) to the L series (Legislation) of the Official Journal

As mentioned in a previous article, where harmonized standards have not yet been developed or are not considered sufficient to ensure product conformity, the Commission may use the instrument of common specifications.
Emblematic judgments, and subsequent changes in the standardization process, have benefited the regulatory landscape in Europe, reiterating that harmonized technical standards form an integral part of Union law and, for this reason, must be effectively disseminated to citizens and businesses.

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