Standards, Domestic Regulations and ‘Behind the Borders’ Barrier to Trade

Anne McNaughtonANU College of Law, Australian National University

Exclusive European Imports Pty Limited v Roads and Traffic Authority of New South Wales [2009]

NSWSC 603

DIN EN 1949 (2002) This standard (which has since been updated: DIN EN 1949 (2006) ):

specifies the requirements for the installation of liquefied

petroleum gas appliances for habitation purposes in leisure

accommodation vehicles and other vehicles. …It details

safety and health requirements on the selection of materials,

components and appliances, on design considerations and

testing and of the inspection of installations and on the

contents of the user's instructions.

Clause 44.8.2 ADR 44/02

Clause 44.8.2 of the Australian Design Rules 44/02 provided:

Liquefied petroleum Gas Equipment

Unless otherwise “Approved”, liquefied petroleum gas installations in Motorhomes and “caravans” shall comply with the requirements of “Code Governing the Installation in Caravans of Liquefied Petroleum Gas Equipment and Appliances’ issued by the Australian Liquefied Petroleum Gas Association.

The ‘Approval’

For the purposes of clause 44.8.2 of the Australian Design Rule 44/02 in respect of the Burstner caravans, DIN EN 1949 (2002) (what was referred to as ‘the European Standard’ in the judgment) is an approved standard in relation to the gas installation and gas appliances in those Burstner caravans.

Letter of 27 October, 2003 to EEI from the Administrator of Vehicle Standards

Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837

Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837

[5] All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.

[6] In the absence of a Community system guaranteeing for consumers the authenticity of a product’s designation of origin, if a Member State takes measures to prevent unfair practices in this connection, it is however subject to the condition that these measures should be reasonable and that the means of proof required should not act as a hindrance to trade between Member States and should, in consequence, be accessible to all Community nationals. (emphasis added)

Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837

[9] Consequently, the requirements by a Member State of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another Member State than by importers of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction prohibited by the Treaty.

Similarities between the two cases

In each case:

there was a requirement for evidence of compliance with a domestic measure, that was difficult to obtain, and therefore had cost implications for the party concerned;

this evidence of compliance was redundant because the purpose which this requirement served – ostensibly protection of the consumer and of the public – was served by an equivalent and effective requirement.

Similarities between the two cases In both cases:

the concern is with ‘behind the borders’ behaviour, with the conduct of the State, either as the Public Prosecutor in the case of Dassonville, or as the New South Wales Roads and Traffic Authority, in the case of EEI;

the regulator (the Public Prosecutor and the RTA respectively) justified the position they took on the grounds of concerns for the consumer and public safety;

the regulator’s interpretation of the law as they applied it was fundamentally flawed;

Differences between the two cases Australian domestic law is compatible with WTO law – specifically, the provisions of the Technical Barriers to Trade agreement (arts. 2, 3 and 5); whereas Belgian domestic law was not compatible with EEC law;

Whereas in the Dassonville case, the position of the regulator, the Public Prosecutor, might have been more defensible in that Dassonville was challenging a domestic law on the basis of its alleged incompatibility with a provision of international law, in the case of EEI, the RTA’s position was indefensible because the legislation on which the RTA relied, incorporated by reference the approved German standard.

What exactly is the EU?

A state; a nation; a customs union; something else…?

“When I want to speak to Europe,

who do I call?”

Dr Henry Kissinger, US Secretary of State, 1969-77

slide courtesy of Dr Ben Wellings, ANU

Background to European Integration - post WW II European Coal and Steel Community – 1952 – 2002 European Economic Community Treaty 1957 European Atomic Energy Community 1957 Single European Act - 1986 Treaty on European Union (Treaty of Maastricht) - 1992 Treaty of Amsterdam - 1997 Treaty of Nice - 2000 Draft Constitutional Treaty – 18 July, 2003 The Lisbon Treaty (The Reform Treaty – 13 December,

2007)

A sui generis entity

Following the entry into force of the Lisbon Treaty, the European Union is an entity of expressly allocated competences with its own, unique governance structure.

The European Court of Justice and Preliminary Rulings

The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

The interpretation of this Treaty…

The European Court of Justice and Preliminary Rulings

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Art.267 TFEU, 2nd para.

The European Court of Justice and Preliminary Rulings

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, bring the matter before the European Court of Justice.

Art.267 TFEU, 3rd para.

General Principles of Community Law

Direct Effect • provisions of binding EC law, if they are clear, precise

and unconditional and can thus be considered justiciable, can be invoked and relied upon by individuals before national courts.

• Narrowly or classically defined, provisions of EC law may confer rights on individuals.

General Principles of Community Law

The Direct Effect of:• Treaty Provisions• Regulations and Decisions• International Agreements• Directives

Why does this matter? It matters:

- because a small business was put out of business by the regulator’s failure

- because WTO law and its enforcement afforded no assistance or support for that small business

- because any potential for establishing a market for these caravans in the wider Asia-Pacific region was destroyed as a result of the RTA’s stance

- because small and medium sized enterprises might be able to get their goods over the border but it offers cold comfort for them behind those borders

Thank you