SUMMARY
The extension of a thermal insulation test to "multi-foil" thermal insulation products introduced by Approved Document BR443, 2006 Edition Conventions for U-Value Calculations amounted to a de-facto technical regulation for the purposes of Directive 98/34 Art.8 and should have been notified to the Commission of the European Communities in accordance with the Directive. The failure to notify rendered the approved document inapplicable and unenforceable.
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[2007] EWHC 2417 (Admin) R (on the application of (1) ACTIS SA (2) ACTIS INSULATION LTD) v SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2007)QBD (Admin) (Charles J) 2/11/2007
CONSTRUCTION LAW - ADMINISTRATIVE LAW - EUROPEAN UNION
BUILDING REGULATIONS : CONSTRUCTION INDUSTRY : FAIRNESS : INSULATION : LEGITIMATE EXPECTATION : NOTIFICATION REQUIREMENTS : PUBLICATION OF APPROVED DOCUMENT ON THERMAL INSULATION : REQUIREMENT TO NOTIFY THE COMMISSION OF THE EUROPEAN COMMUNITIES OF THE DOCUMENT : Art.8 DIRECTIVE 98/34 ON TECHNICAL STANDARDS 1998
The claimant companies (C) applied for judicial review of a decision of the defendant secretary of state to publish Approved Document BR443, 2006 Edition Conventions for U-Value Calculations pursuant to the Building and Approved Inspectors (Amendment) Regulations 2006. By the approved document the secretary of state had revised how the thermal performance of thermal insulation products and systems should be calculated and declared. The main effect of that revision was to require that "multi-foil" thermal insulation products, which C sold, conform to the same test as traditional thermal insulation products that had existed for a number of years. C contended that the secretary of state had (1) failed to notify the changes effected by the approved document to the Commission of the European Communities in accordance with Directive 98/34 Art.8; (2) acted in breach of C's legitimate expectation and on the basis of conspicuous unfairness by failing to properly consult them and other interested parties.
HELD: (1) The introduction by the approved document in mandatory terms as to the establishment of a product performance test of constructions that included multi-foil insulation constituted a de facto technical regulation for the purpose of the Directive and it should have been notified to the Commission. The changes introduced by the approved document had significant and far reaching practical effects, which clearly affected the scope and application of the de facto regulation that was in existence prior to the introduction of the approved document. In particular the approved document (a) had an impact on all of the free movement of goods, on the smooth functioning of the market, on competition and on the development of the market; (b) had a significant impact on the competition between multi-foil thermal insulation producers and other thermal insulation producers and thus on the scope of the de facto technical regulation before and after the change implemented by the approved document; and (c) introduced changes of such a nature and magnitude that the concepts of openness and transparency in the field of building regulation strongly supported the view that the changes should have been notified so that other national bodies could consider the impact. Accordingly the approved note was inapplicable and unenforceable as the United Kingdom had adopted a technical regulation without first notifying a draft of it to the Commission, Lidl Italia Srl v Comune di Stradella (C303/04) (2005) ECR I-7865 applied. (2) The secretary of state had acted in breach of C's legitimate expectation that they would be consulted about the changes to the thermal insulation product performance testing of multi-foil thermal insulation and that failure to consult was detrimental to C.
Application granted